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UNITED STATES v. ANDREWS

November 14, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
HENRY ANDREWS, et al., Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Defendants Henry Andrews, Jerome Crowder, and Michael Sardin have moved to dismiss the indictment in this case contending that it is unconstitutionally vague. For the following reasons, these motions are denied.

 I. Indictment

 The 305-page, 175-count indictment in this case charges the moving defendants and thirty-five others with violations of the Racketeering Influence and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) and (d) (1988). It details more than 250 separate racketeering acts committed in furtherance of an alleged RICO "enterprise," the infamous El Rukn street gang. See 18 U.S.C. § 1961(4) (1988). These acts include at least twenty murders, twelve attempted murders, eleven conspiracies to murder, one act of kidnapping, and numerous violent acts of obstruction of justice. The indictment also charges dozens of narcotics-related offenses, including the possession and distribution of narcotics in violation of 21 U.S.C. § 841(a)(1) (1988), the use of a communication facility to further narcotics offenses in violation of 21 U.S.C. § 843(b) (1988), and interstate travel with intent to further narcotics offenses in violation of 18 U.S.C. § 1952 (1988).

 II. Discussion

 The defendants claim that the indictment is unconstitutionally vague in numerous respects. *fn1" Federal Rule of Criminal Procedure 7(c)(1) states that an indictment "shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). This Rule reflects the mandates of the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment states that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. . . ." The Sixth Amendment provides that the accused has the right "to be informed of the nature and cause of the accusation. . . ." The sufficiency of the indictment under Rule 7 and the Fifth and Sixth Amendments "is not a question of whether it could have been made more definite and certain." United States v. Garcia-Geronimo, 663 F.2d 738, 743 (7th Cir. 1981) (quoting United States v. Debrow, 346 U.S. 374, 378, 74 S. Ct. 113, 115, 98 L. Ed. 92 (1953)). To be sure, virtually every indictment could be made more "definite and certain" in at least some respect. Rather, the question is whether the indictment, when read with a common sense and practical approach,

 
(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to meet, and (3) enables the accused to plead a judgment under the indictment as a bar to any subsequent prosecution for the same offense.

 Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1047, 8 L. Ed. 2d 240 (1962)); see also United States v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985) ("court should consider the challenged count as a whole and should refrain from reading it in a hypertechnical manner"). Because the indictment here satisfies each of these criteria, *fn2" it is not unconstitutionally vague.

 A. Elements of Offense

 The requirement that the indictment contains each element of the charged offense derives from the Fifth Amendment, which requires the grand jury to find that there is probable cause to support each element. *fn3" See Russell, 369 U.S. at 760-62, 82 S. Ct. at 1045-46; Hooker, 841 F.2d at 1230. Only defendant Crowder contends that the indictment is insufficient in this regard. He argues that "none of the racketeering acts concerning the various murders comports with the statutory language" of the Illinois murder statute, Ill. Rev. Stat. ch. 38, para. 9-1 (1989), and, without setting forth any specifics, contends that these alleged acts fail to state "the essential elements of the statute." Of course, there is no requirement that an indictment parrot the language of a statute; the inquiry is merely whether it clearly sets forth all of the elements of the offense. See Garcia-Geronimo, 663 F.2d at 742-43 ("in determining whether an essential element of the crime has been omitted from the indictment, courts will not insist that any particular word or phrase be used"). As to this aspect of Crowder's claim, our review leads to a contrary conclusion.

 The essential elements of murder under § 9-1 are very simple and indeed are simply plead. A person is guilty of murder under § 9-1 if, without lawful justification, in performing acts that cause death, he (1) intended to kill or do great bodily harm; (2) knew that his acts created a strong probability of death or great bodily harm; or (3) was attempting or committing a forcible felony other than second degree murder. See People v. Harris, 72 Ill. 2d 16, 23-24, 377 N.E.2d 28, 31, 17 Ill. Dec. 838 (1978). The essential elements of this statute are alleged as to each of the charged murders despite the fact that the government does not quote the statute's language. As to each of these murders, the indictment expressly contends that the named defendants "did knowingly and intentionally kill and cause to be killed [the victim] without lawful justification." This is sufficient. It "fully, directly, and expressly, without any uncertainty or ambiguity, sets 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) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L. Ed. 1135 (1882)). Therefore, contrary to Crowder's suggestion, the indictment clearly states the essential elements of § 9-1 as to each of the charged murders.

 B. Sufficient to Prepare Defense

 Although generally an indictment is sufficient if it alleges each of the elements of the charged offense, it is "insufficient where additional information is necessary to provide the accused with a clear understanding of the specific charges against him." United States v. Horton, 676 F.2d 1165, 1169 (7th Cir. 1982), cert. denied, 459 U.S. 1201, 103 S. Ct. 1184, 75 L. Ed. 2d 431 (1983). This requirement derives from a defendant's Sixth Amendment right to be informed of the nature and cause of the accusation. ...


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