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United States v. Bibbs

United States District Court, N.D. Illinois, Eastern Division

September 8, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT BIBBS, Defendant.

          MEMORANDUM OPINION AND ORDER

          REBECCA R. PALLMEYER UNITED STATES DISTRICT JUDGE

         Sheila Von Wiese was murdered in Bali, Indonesia on August 12, 2014, by her own daughter, Heather Mack, and Mack's lover, Tommy Schaefer. Mack and Schaefer were convicted of Von Wiese's murder in an Indonesian court, and are currently serving sentences of 10 and 18 years, respectively. The government alleges that a third conspirator was involved in the murder. On October 20, 2015, a grand jury in the Northern District of Illinois returned an indictment [23] against Defendant Robert Bibbs, charging him with conspiracy to kill a person in a foreign country (Count One, 18 U.S.C. § 956), conspiracy to commit foreign murder of a United States national (Count 2, 18 U.S.C. §§ 1117, 1119(b)), and solicitation of a crime of violence (Count 3, 18 U.S.C. §§ 373, 1119(b)). Bibbs himself was not in Indonesia when the victim was killed, but the government contends he is criminally responsible for conspiring with her murderers.

         Defendant now moves to dismiss, challenging the sufficiency of the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). For the reasons stated below, the court denies Defendant's motion [41].

         BACKGROUND

         The Indictment alleges the following: Tommy Schaefer is Bibbs's cousin. Schaefer had a romantic relationship with the victim's daughter, Heather Mack. (Indictment ¶ 1.) On August 2, 2014, Bibbs “gave advice to Mack on how to kill Von Wiese.” (Id. ¶ 4(a).) Later that day, Mack boarded a flight from O'Hare International Airport to Indonesia. (Id. ¶ 4(a)-(b).) Schaefer made the same trip on August 10, 2014. (Id. ¶ 4(e).) The following day, August 11, Defendant sent Schaefer three messages[1]: two suggesting ways that Schaefer could kill Von Wiese (drowning or suffocation) (id. ¶ 4(f)-(g)), and another telling Schaefer, “It's go time.” (Id. ¶ 4(h).) On August 12, 2014, Mack and Schaefer exchanged messages in which they discussed how and when to kill Von Wiese. (Id. ¶ 4(i).) That night, Schaefer entered the hotel room where Mack and Von Wiese were staying, and Mack and Schaefer killed[2] Von Wiese. (Id. ¶ 4(j)-(k).) The two were convicted on murder charges in Indonesia, where they are currently imprisoned. (Compl. ¶ 3 n.1.)

         Based on these purported acts, the Indictment charges Bibbs with conspiring with Mack and Schaefer to murder Von Wiese, an American (Counts 1 and 2) and soliciting Schaefer to commit the murder (Count 3). Defendant now moves to dismiss all three counts of the five-page Indictment as insufficient to state an offense.

         DISCUSSION

         I. Legal standard

         Federal Rule of Criminal Procedure 12(b)(3)(B)(v) allows a defendant to make a pretrial motion that challenges the sufficiency of the indictment by arguing that it fails to state an offense. See United States v. Boender, 691 F.Supp.2d 833, 837 (N.D. Ill. 2010). An indictment must “be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). When considering a challenge to the sufficiency of an indictment, courts must view all allegations as true and in the light most favorable to the government. See United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999); see also United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). The Seventh Circuit has explained that this generous standard means that an indictment is sufficient where it (1) states the elements of the crimes charged, (2) adequately informs the defendant of the nature of the charges brought against him, and (3) enables the defendant to assert the judgment as a bar to future prosecutions for the same offense. See United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013). “To successfully challenge the sufficiency of an indictment, a defendant must demonstrate that the indictment did not satisfy one or more of the required elements and that [he] suffered prejudice from the alleged deficiency.” Id. at 925; see also United States v. Castaldi, 547 F.3d 699, 703 (7th Cir. 2008).

         II. Counts 1 and 2: Conspiracy

         Counts 1 and 2 charge that Bibbs conspired with Mack and Schaefer to kill Von Wiese in violation of 18 U.S.C. §§ 956, 1117, and 1119(b). Defendant argues that these counts are insufficient because they fail to allege a “key element”: an “agreement” between Bibbs and his purported co-conspirators. (Mem. at 2.) The Indictment's omission of an alleged agreement would indeed be fatal. In order to prove a conspiracy, the government must establish that “(1) there was an agreement between two or more persons to commit an unlawful act, (2) the defendant was a party to the agreement, and (3) an overt act was committed in furtherance of the agreement by one of the co-conspirators.” United States v. Hickok, 77 F.3d 992, 1004-05 (7th Cir. 1996). And in order to be sufficient, an indictment must “state all elements of the crime charged.” Moore, 563 F.3d at 585.

         But Bibbs's challenge to the conspiracy charge is largely semantic. Although the word “agreement” does not appear in the Indictment, the government alleges that Bibbs “conspired” with Mack and Schaefer to murder Von Wiese. (Indictment ¶ 2.) Black's Law Dictionary defines the verb “conspire” as “to engage in conspiracy; to join in a conspiracy.” A conspiracy, meanwhile, is “[a]n agreement by two or more persons to commit an unlawful act.” Black's Law Dictionary (10th ed. 2014); see also Seventh Circuit Pattern Jury Instructions 5.09. In other words, one who “conspires, ” as Bibbs allegedly did, necessarily reached an agreement with his co-conspirators.

         Bibbs nevertheless argues that the use of “conspire” instead of “agreed” is fatal because “the two words are not identical in adequately pleading a charge.” (Reply at 3.) For support, he points to several cases in which an indictment alleged that defendants both “conspired” and “agreed.” (Id. citing Vaughn, 722 F.3d at 926 (indictment alleged that defendants “knowingly and intentionally conspired and agreed with each other”); United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009) (indictment alleged that defendant and his co-conspirators did “unlawfully, knowingly, and intentionally combine, conspire, confederate and agree together”); United States v. West, 312 F.Supp.2d 605, 615 (D. Del. 2004) (indictment alleged that defendant “knowingly conspired and agreed to knowingly distribute cocaine”).). Therefore, Defendant urges, the omission of the word “agreement” means that he “has not been apprised of the criminality of his alleged conduct.” (Id.)

         This argument is unpersuasive. The Indictment tracks the language of the relevant statutes, neither of which contains the word “agreement.” And even if they did, the word's omission would not be problematic. The government's choice of words does not meaningfully obscure the “nature of the charges brought against [Bibbs]” or render an element missing. Vaughn, 722 F.3d at 925; cf. United States. v. Morris, No. 99 CR 719, 2000 WL 246240 (Feb. 23, 2000) (dismissing indictment charging defendant with conspiracy to traffic in unauthorized devices for failure to allege an essential element-i.e., that defendant's actions affected interstate commerce). This conclusion is illustrated by the fact that, if the court granted Bibbs's motion, the government could cure the problem by the simple expedient of seeking a new indictment from the grand jury identical to this one, but substituting the definition of “conspire” in place of the word itself. Sustaining Defendant's ...


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