Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 79-CR-5045 -- William L. Beatty, Judge .
Before Fairchild, Chief Judge, Wisdom, Senior Circuit Judge,*fn* and Cummings, Circuit Judge.
Appellant was charged in a multi-count indictment for various drug offenses, and the jury found her guilty on all but one count.*fn1 She was given concurrent sentences under the Youth Corrections Act, 18 U.S.C. § 5010(b). On appeal, she alleges that six counts of her indictment were fatally defective because they failed to allege a specific felony. She also argues that the district court judge should have granted her motion for acquittal because the government failed to prove beyond a reasonable doubt that she was not entrapped. We agree with the appellant that six counts of her indictment failed to charge her with a specific offense. We vacate the convictions and the sentences based on those six counts, but affirm as to the remaining counts.
Counts VIII, X, XI, XII, XIII and XIV charged appellant with using a telephone to facilitate acts constituting a felony under 21 U.S.C. § 841(a)(1). These counts were all identical, except for the date, and read as follows:
On or about the 30th day of August, 1979, in St. Clair County, in the Southern District of Illinois, KAREN L. HINKLE, defendant herein, did knowingly and intentionally use a communication facility, that is, a telephone, to facilitate acts constituting a felony under Title 21, United States Code, Section 841(a) (1); all in violation of Title 21, United States Code, Section 843(b).
21 U.S.C. § 841(a)(1) provides:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance(.)
21 U.S.C. § 843(b) states:
(b) It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility' means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.
Thus, these six counts charged appellant with knowingly and intentionally using a telephone, on six different days, to facilitate the manufacture, distribution, dispensation or possession with intent to manufacture, distribute or dispense some controlled substances. These counts did not specify which of the over one hundred and forty-two controlled substances specified in 21 U.S.C. § 812*fn2 appellant may have discussed over the telephone on any given day, nor did they specify which type of acts, constituting a felony, were facilitated. Prior to trial, appellant filed a motion to dismiss these charges for failure to state a cause of action. The court denied the motion. The government did not provide a bill of particulars, which in any event would not have cured this deficient indictment.
The Fifth Amendment's guarantee of the right to indictment by a grand jury and its double jeopardy bar, and the Sixth Amendment's guarantee that a defendant be informed of the charges against him establish two minimum requirements for an indictment. The indictment must adequately apprise a defendant of the charge against him so that he can prepare his defense. Furthermore, it must establish a record that shows when the defense of double jeopardy may be available to the defendant in the event future proceedings are brought against him. Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1046-1047, 8 L. Ed. 2d 240 (1962); United States v. Ray, 514 F.2d 418, 422 (7th Cir.), cert. denied, 423 U.S. 892, 96 S. Ct. 189, 46 L. Ed. 2d 123 (1975). Generally, an indictment is sufficient when it sets forth the offense in the words of the statute itself, as long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished. Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 2907, 41 L. Ed. 2d 590 (1974). The six telephone counts of the indictment at issue here fail to meet these minimal constitutional standards.
The government argues that these six counts of the indictment meet the constitutional test because they are framed in the language of 21 U.S.C. § 843(b) which defendant is charged with violating: they specify which communication device the defendant used, the telephone, and they specify the dates on which she used it. The government relies on United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), cert. denied, 397 U.S. 967, 90 ...