The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE
Defendant Henry Andrews, one of 38 defendants in this case, moves pursuant to Federal Rules of Criminal Procedure 7(d) to strike surplusage from the indictment. For the following reasons, this motion is denied.
On the motion of a defendant, it is within a court's discretion to strike, as surplusage, "immaterial or irrelevant allegations . . . which may, however, be prejudicial." United States v. Climatemp, Inc., 482 F. Supp. 376, 391 (N.D. Ill. 1979) (quoting Advisory Committee Note to Fed. R. Crim. P. 7(d)), aff'd sub nom., United States v. Reliable Sheet Metal Works, Inc., 705 F.2d 461 (7th Cir.), cert. denied, 462 U.S. 1134, 103 S. Ct. 3116, 77 L. Ed. 2d 1370 (1983). Such motions should be granted, however, "only if the targeted allegations are clearly not relevant to the charge and are inflammatory and prejudicial." United States v. Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D. Ill. 1987) (emphasis added) (citing 1 Wright, Federal Practice and Procedure: Criminal 2d § 127, at 425-27 (1982)); see also United States v. Brighton Bldg. & Maintenance Co., 435 F. Supp. 222, 230-31 (N.D. Ill. 1977), aff'd, 598 F.2d 1101 (7th Cir.), cert. denied, 444 U.S. 840, 100 S. Ct. 79, 62 L. Ed. 2d 52, 100 S. Ct. 80 (1979). As noted by court in Chaverra-Cardona, "this is a rather exacting standard, and only rarely has surplusage been ordered stricken." 667 F. Supp. at 611 (citation omitted).
The present case is not one of those rare instances. Andrews moves to strike the following terms: "street gangs," "rival gang leaders," "enforcers," "hitmen," "El Rukn hit team," "hit team," "stalked," "guns," and "rival gang." He claims that these terms are unduly prejudicial. Even if this is true, however, the terms should not be stricken if they are not "clearly" irrelevant to the government's case. See Climatemp, 482 F. Supp. at 391 (if language is "legally relevant," it should not be stricken "no matter how prejudicial it may be").
The indictment charges that Andrews, along with 37 other defendants, participated in the conduct and affairs of an enterprise through a pattern of racketeering in violation of the Racketeering Influenced and Corrupt Organizations Act ("RICO") under 18 U.S.C. § 1962(c) and (d). To prove this charge, the government will properly be entitled to present evidence identifying the enterprise and the nature of its activities, as well as the role that each defendant played within this enterprise. The terms that Andrews seeks to strike are evidently relevant to this matter. He is alleged to have been a member of the El Rukn "street gang," and was purportedly a "hitman" or "enforcer" as part of an "El Rukn hit team" that "stalked" "rival gang leaders" and "rival gang" members with an intent to commit murder. According to the government, these terms were, in fact, used by the defendants themselves to describe their activities during the course of the RICO conspiracy. Therefore, even if Andrews is right in his assessment of prejudicial effect, the targeted phrases will not be stricken because they will inevitably be part of the relevant and admissible proof at trial. See United States v. Persico, 621 F. Supp. 842, 860 (S.D.N.Y 1985) ("organized crime," "crews," "bosses," "capos," "soldiers," and "made members" are not stricken where defendants used same terms in course of RICO conspiracy such that terms would "inevitably be part of the proof at trial"); United States v. Santoro, 647 F. Supp. 153, 176-77 (E.D.N.Y. 1986) ("Lucchese Crime Family," "boss," "underboss," "capos," and "crews" are not stricken because they were relevant to identity of RICO enterprise and role of defendants), rev'd on other grounds, 845 F.2d 1151 (2d Cir. 1988); United States v. Rastelli, 653 F. Supp. 1034, 155 (E.D.N.Y. 1986) (same holding with respect to "Mafia," "La Cosa Nostra," and "Bonanno Crime Family").
Andrews also challenges references to "others known and unknown to the Grand Jury," "members," "other members," and "the defendants" throughout the indictment. We are confused by his argument as to these references. He states that they are prejudicial because they "create a risk of unfair surprise" as they fail to identify the relevant individuals by name. Defendant's Memorandum, at p. 2. This, of course, is not a proper ground for striking surplusage. Rule 7(d)'s aim is to minimize the unfair affect of inflammatory and irrelevant language on the jury, not to prevent a "risk of unfair surprise" to the defendant. See Climatemp, 482 F. Supp. at 391. Thus, if this is a correct understanding of Andrew's argument, his motion should be denied.
For the foregoing reasons, Henry Andrews's motion to strike surplusage from the indictment pursuant to Fed. R. Crim. P. 7(d) is denied. It is so ordered.
© 1992-2004 VersusLaw ...