The opinion of the court was delivered by: Foreman, District Judge:
Atchison was indicted for willfully and knowingly transporting
Kimberly Gossett in interstate commerce, after she had been
unlawfully seized, confined, inveigled, decoyed, kidnapped,
carried away and held by Atchison "for ransom, reward or
otherwise" from July 7, 1974 until September 19, 1974 in
violation of 18 U.S.C. § 1201.
The Government's evidence adduced at trial clearly demonstrated
that Atchison had kidnapped the young girl and transported her in
interstate commerce, as charged in the indictment. There was,
however, no evidence that he had ever requested a ransom or
reward. On the contrary, his reason for kidnapping Kimberly
Gossett apparently was to extricate the young girl from an
environment that the defendant felt was unfit.
Defendant filed a motion for a judgment of acquittal at the
close of the evidence presented by the Government. The Court took
that motion under advisement and subsequently the defendant
renewed the motion at the close of all the evidence. He also
filed another motion for judgment of acquittal or for new trial.
He claims that if the Government seeks to rely upon the words "or
otherwise" it must specifically allege the reasons that
constituted his motive. He contends that because the indictment
did not specify these reasons, the defendant could only be
convicted for holding the young girl for ransom or reward. He
does not contend, and indeed could not contend, that his
activities would not be punishable under this statute pursuant to
a properly drafted indictment. See United States v. Healy,
376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1963); Gooch v. United
States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936). On the
contrary, defendant's argument appears to be that the evidence at
trial did not conform to the indictment.
Defendant places primary reliance upon United States v. Varner,
283 F.2d 900 (7th Cir. 1960). In that decision, the court held
that where a defendant was charged with kidnapping a victim for
"ransom, reward, or otherwise", the words "or otherwise" standing
alone were meaningless and if the Government intended to rely
upon those other reasons, then the indictment had to allege those
reasons for holding the victim. In addition, that court held
where a defendant is charged with kidnapping for "ransom, reward,
or otherwise" and the Government fails to prove that the
defendant held the victim for ransom or reward, that the
defendant's motion for a judgment of acquittal should be granted.
The Seventh Circuit was the first court to decide this precise
question. Subsequent to the Varner decision in 1960, three other
circuits have faced the identical issue and each time the
respective court considered Varner but chose not to follow that
decision. Hall v. United States, 410 F.2d 653 (4th Cir. 1969),
cert. denied 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 436; Loux v.
United States, 389 F.2d 911 (9th Cir. 1968), cert. denied
393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135; United States v. Bentley,
310 F.2d 685 (6th Cir. 1962), cert. denied 372 U.S. 946, 83 S.Ct.
941, 9 L.Ed.2d 271, rel. denied 373 U.S. 954, 83 S.Ct. 1682, 10
L.Ed.2d 708. Some courts have held that it is not even necessary
to allege in the indictment the reasons for the kidnapping. See
Gawne v. United States, 409 F.2d 1399 (3rd Cir. 1968), cert.
denied 397 U.S. 943, 90 S.Ct. 956, 25 L.Ed.2d 123; United States
v. Martell, 335 F.2d 764 (4th Cir. 1964); Hayes v. United States,
296 F.2d 657 (8th Cir. 1961), cert. denied 369 U.S. 867, 82 S.Ct.
1033, 8 L.Ed.2d 85.
Moreover, Rule 7(c), Federal Rules of Criminal Procedure ended
the rules of technical and formalized pleading which had
characterized an earlier era. Russell v. United States,
369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In construing the
wording of an indictment, common sense and reasoning should
prevail over technicalities. Belvin v. United States,
273 F.2d 583 (5th Cir. 1960); United States v. Boisvert, 187 F. Supp. 781
(D.R.I. 1960). The sufficiency of the indictment is to be
determined by practical rather than technical considerations.
United States ex rel. Harris v. State of Illinois, 457 F.2d 191
(7th Cir. 1972), cert. denied 409 U.S. 860, 93 S.Ct. 147, 34
L.Ed.2d 106. Convictions should not be reversed because of minor
and technical deficiencies in the indictment which do not
prejudice the defendant. Russell, supra; United States v. Dreer,
457 F.2d 31 (3rd Cir. 1972).
In addition, the basic rationale of Varner appears to be that
that indictment did not provide the defendant with sufficient
notice of the charge to prepare an adequate defense or to protect
against the possibility of double jeopardy. Those reasons are not
applicable in the case at bar. The defendant had adequate notice
of the charge. The indictment named the victim who had been
kidnapped and also contained the dates during which the defendant
held her. At the time of the arraignment, this Court entered a
sweeping Order for Pretrial Discovery and Inspection. Pursuant to
this order, the Government asserts that its entire file was made
available to counsel for defendant. The Government also alleges
and the counsel for the defendant does not dispute that the
defendant's attorney and the attorney for the Government had
numerous discussions regarding this case and during these
discussions the attorney for the Government revealed that the
Government intended to prove that the purpose of the kidnapping
was to extricate the victim from an environment the defendant
felt was unfit and to take the victim as his own child. The
Attorney for the Government also contends that he gave the
defense counsel copies of FBI reports without regard to the
discoverable nature of those reports. Because of all these
factors, defendant clearly had sufficient notice of the charge to
prepare an adequate defense. If the defendant still were unsure
about which purpose the Government intended to prove, the proper
procedure would have been to file a motion for a bill of
Moreover, the indictment in conjunction with the trial
transcript would certainly protect defendant from any possible
dangers of double jeopardy.
Thus, with some reluctance this Court feels compelled to
conclude that the Court of Appeals for the Seventh Circuit would
not decide the issue in the case at bar in the same manner as in
The other grounds listed in the various motions for judgment of
acquittal or for new ...