substantial reasons to believe that if the Seventh Circuit were
confronted with the same issue today, that court would decide the
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.
In addition, Rule 52(a), Federal Rules of Criminal Procedure,
provides in pertinent part, "any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded." Since defendant was adequately informed of the
charge by the indictment and the conferences between his attorney
and the attorney for the Government, he was not deprived of any
substantial rights. A variance between the indictment and the
evidence is not material unless it is of such a substantive
character as to mislead the accused in preparing his defense or
to place him in second jeopardy for the same offense. United
States v. Pile, 256 F.2d 954 (7th Cir. 1958).
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 trial are without merit.
Accordingly, the motions for judgment of acquittal or for a new
trial are hereby denied.
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