Indictment and Informations An indictment, as defined in Black's Law Dictionary, is: An accusation in writing found and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that a person therein named has done some act, or been guilty of some omission, which by law is a public offense, punishable on indictment. A formal written accusation originating with a prosecutor and issued by a grand jury against a party charged with a crime. An indictment is referred to as a "true bill," whereas failure to indict is called a "no bill." Black's Law Dictionary 772 (6th ed. 1990). An information, has been defined as: An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Id. at 779. Together with the pleas of guilty, not guilty, or nolo contendere, the indictment and information constitute the pleadings in Federal criminal proceedings. See Fed. R. Crim. P. 12(a). Drafting Indictments and Informations The Sixth Amendment commands that the accused in a criminal prosecution "be informed of the nature and cause of the accusation." Rule 7(c)(1) gives effect to these requirements and provides as follows: The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Fed. R. Crim. P. 7(c)(1). The indictment and information must contain sufficient detail to adequately apprise the defendant of the nature of the charges against him. The drafter must afford the defendant not only a document that contains all of the elements of the offense, whether or not such elements appear in the statute, but one that is sufficiently descriptive to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment, if appropriate. Hamling v. United States, 418 U.S. 87, 117, reh'd denied, 419 U.S. 885 (1974); Russell v. United States, 369 U.S. 749, 763-72 (1962); United States v. Hernandez, 891 F.2d 521, 525 (5th Cir. 1989), cert. denied, 495 U.S. 909 (1990) (indictment for drug trafficking and firearm violations valid despite lack of specific statutory language because sufficient information provided to prepare double jeopardy defense). In reviewing the sufficiency of an indictment, the courts will construe the document as a whole to ascertain whether the foregoing requirements have been met. United States v. Hand, 497 F.2d 929, 934-35 (5th Cir. 1974), cert. denied, 424 U.S. 953 (1976); Moore's Federal Practice, Section 7.04 (1982). What is required are factual allegations rather than a mere recitation of the acts or practices proscribed by the offense allegedly committed. See, e.g., United States v. Nance, 533 F.2d 699, 701 (D.C. Cir. 1976) (an indictment charging theft of money by false pretenses which listed name of victim, date of false representation, loss to victim and date money was paid to defendant was fatally defective, because it did not specify the false representation that induced victims to pay money). Elements of the Offense The Federal Rules of Criminal Procedure require that an indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." An indictment need only contain those facts and elements of the alleged offense necessary to inform the accused of the charge so that he or she may prepare a defense and invoke the Double Jeopardy Clause when appropriate. If an essential element of the offense is omitted from the indictment, it cannot, consistent with the principle underlying the Fifth Amendment requirement that prosecution for an infamous crime be instituted by a grand jury, be supplied by the prosecutor or by the courts. As stated in Russell v. United States, 369 U.S. 749, 770 (1962): To allow the prosecution, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. In United States v. Outler, 659 F.2d 1306 (5th Cir. 1981), it was fatal to an indictment which charged a physician with prescribing drugs, in violation of 21 U.S.C. § 841 (a), not to allege that the prescriptions lacked legitimate medical reasons as an element of the offense. The court acknowledged that this factor was not a statutory element of the violation, that the defendant was clearly aware of the nature of the charges, and that the grand jurors had likely considered the legitimacy issue in returning the indictment. Nonetheless, the Fifth Amendment did not allow the Court to speculate whether the grand jury had considered this omitted element in determining whether there was probable cause for the indictment. See United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988)(indictment charging defendant with mailing videotape of himself masturbating to undercover postal inspector insufficient because failed to allege essential element of offense that tape was obscene). Physical Evidence The Fourth Amendment may be implicated in obtaining physical evidence such as hair samples, fingernail scrapings, blood samples and other evidence from the person of an individual. Unlike physical appearance, writing, speaking, fingerprints, and measurements which are exposed to the public, the taking of evidence such as hair and blood samples creates greater concerns under the Fourth Amendment. Compare United States v. Wade, supra, with Schmerber v. California, 384 U.S. 757 (1966). Obtaining physical evidence from a person involves a potential Fourth Amendment violation at two different levels--the "seizure" of the "person" necessary to bring him/her into contact with government agents, and the subsequent search for or seizure of the evidence. See United States v. Dionisio, 410 U.S. 1, 8 (1973); Schmerber v. California, supra. Even where there has been a lawful arrest, a subsequent search for physical evidence must comply with the requirements of the Fourth Amendment. Surgical Intrusions and Blood Samples A surgical intrusion into a person's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if probable cause exists. This determination must be made on a case-by-case basis in which the individual's privacy and health interests are weighed against society's interest in obtaining evidence to fairly and accurately determine guilt or innocence. See Winston v. Lee, 470 U.S. 753 (1985) (refusing surgery to remove bullet for evidence); Schmerber v. California, supra (routine blood test permissible for drunk driving suspects). The minor intrusion upon the person involved in taking fingernail scrapings is a "search," and requires compliance with the Fourth Amendment. Cupp v. Murphy, 412 U.S. 291 (1973). Plea Negotiations with Public Officials -- United States v. Richmond In United States v. Richmond, 550 F. Supp. 144 (E.D.N.Y. 1982), the court questioned the propriety of using the plea bargaining process to negotiate the resignation from office of a Congressman. The Criminal Division believes that this decision is incorrect on the merits. United States Attorney personnel are therefore encouraged to continue to consider voluntary offers of resignation from office as a desirable feature in plea agreements with elected and appointed public officials at all levels of government. The Richmond case involved a former Congressman from New York who, during 1982, became the subject of a federal criminal investigation. In an effort to dispose of his criminal liability, Congressman Richmond voluntarily agreed to resign his seat in the Congress and to plead guilty to federal tax, narcotics, and conflict of interest offenses. Thereafter, Richmond resigned his seat, took appropriate measures to withdraw his candidacy in the 1982 Congressional election, and entered guilty pleas to the aforementioned charges. At his sentencing a month later, the judge announced that, in his judgment, the resignation and withdrawal conditions of the plea agreement violated the separation of powers doctrine, and infringed upon the constitutional right of the public to select Congressmen of their choosing as articulated in Powell v. McCormick, 395 U.S. 486 (1969). Although the Criminal Division considers the Richmond decision to have been incorrectly decided on its merits, the unusual procedural and factual setting of the case foreclosed judicial review in the Second Circuit. In this regard, the district judge's comments concerning the plea bargaining issue were made after the plea agreement terms dealing with resignation and withdrawal from candidacy had been fully performed by Congressman Richmond, and without the issue having been otherwise raised by the defendant. Since the plea agreement was in all other respects enforced, and since the Court's refusal to "accept" the resignation and non-candidacy terms did not demonstrably impact on the sentence imposed, the issue was moot and not easily amenable to appellate review. The Richmond case is particularly troublesome from the standpoint of the orderly and efficient discharge of the Justice Department's responsibilities to protect the public from criminal abuse of the public trust by high federal officials. It purports to limit, without adequate legal justification, the latitude of federal prosecutors to reach voluntary settlements with defendants in significant corruption cases which equitably address and protect the important public interests that such prosecutions normally entail. Pleas -- Federal Rule of Criminal Procedure 11 A defendant may plead guilty, not guilty, or, with the consent of the court, nolo contendere. If the defendant refuses to plead, or if a defendant corporation fails to appear, the court must enter a plea of not guilty. Fed. R. Crim. P. 11(a). In a criminal case, the plea of nolo contendere has the effect of a guilty plea. United States v. Norris, 281 U.S. 619 (1930). Under Federal Rule of Criminal Procedure 11, a plea of nolo contendere shall be accepted by the court only with its consent and only after it gives due consideration to the views of the parties and the interest of the public in the effective administration of justice. The court does not have the authority to accept either a plea of guilty or a plea of nolo contendere until the court has first determined that the defendant has a requisite understanding and that the plea is voluntary, in accordance with Federal Rules of Criminal Procedure 11(c) and (d). See McCarthy v. United States, 394 U.S. 459 (1969); Boykin v. Alabama, 395 U.S. 238 (1969). The requirement in Rule 11(f) that the court not enter a judgment upon a guilty plea without determining that there is a factual basis for the plea, does not extend to criminal forfeiture charged under Federal Rule of Criminal Procedure 7 since such forfeiture is part of the sentence, not the offense. See Libretti v. United States, 116 S. Ct. 356 (1995). Federal Rule of Criminal Procedure 11(c) requires that, before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him/her of, and determine that he/she understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines, and that the court may also order restitution to any victim of the offense; (2) if the defendant is not represented by an attorney, that he/she has the right to be represented by an attorney at every stage of the proceeding against him/her and, if necessary, one will be appointed to represent him/her; (3) that he/she has the right to plead not guilty or to persist in that plea if it has already been made, and that he/she has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him/her, and the right not to be compelled to incriminate himself/herself; (4) that if his/her plea of guilty or nolo contendere is accepted by the court there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he/she waives the right to a trial; and (5) that if the court intends to question the defendant under oath, on the record, and in the presence of counsel about the offense to which he/she has pleaded, that his/her answers may later be used against him/her in a prosecution for perjury or false statement. A court's failure to comply will not, however, necessarily entitle a defendant to relief. See United States v. Timmreck, 441 U.S. 780 (1979). It is not necessary that every conceivable consequence of sentencing be communicated to the defendant. See Bunker v. Wise, 550 F.2d 1155 (8th Cir.1977). Federal Rule of Criminal Procedure 11(d) requires that the court not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The Court shall also inquire whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his/her attorney. Speedy Trial Act of 1974 Title I of the Speedy Trial Act of 1974, 88 Stat. 2080, as amended August 2, 1979, 93 Stat. 328, is set forth in 18 U.S.C. §§ 3161-3174. The Act establishes time limits for completing the various stages of a federal criminal prosecution. The information or indictment must be filed within 30 days from the date of arrest or service of the summons. 18 U.S.C. § 3161(b). Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later. 18 U.S.C. § 3161(c)(1). Moreover, in order to ensure that defendants are not rushed to trial without an adequate opportunity to prepare, Congress amended the Act in 1979 to provide a minimum time period during which trial may not commence. Speedy Trial Act Amendments of 1979, Pub. L. No. 96-43, Section 3, 93 Stat. 327. Thus, the Act provides that trial may not begin less than 30 days from the date the defendant first appears in court, unless the defendant agrees in writing to an earlier date. 18 U.S.C. § 3161(c)(2). In United States v. Rojas-Contreras, 474 U.S. 231 (1985), the Supreme Court held that this 30-day trial preparation period is not restarted upon the filing of a substantially similar superseding indictment. If the indictment is dismissed at the defendant's request, the Act's provisions apply anew upon reinstatement of the charge. 18 U.S.C. § 3161(d)(1). If the indictment is dismissed at the request of the government, the 70-day clock is tolled during the period when no indictment is outstanding, and begins to run again upon the filing of the second indictment. 18 U.S.C. § 3161(h)(6). If trial ends in a mistrial, or the court grants a motion for a new trial, the second trial must begin within 70 days "from the date the action occasioning the retrial becomes final." 18 U.S.C. § 3161(e). Certain pretrial delays are automatically excluded from the Act's time limits, such as delays caused by pretrial motions. 18 U.S.C. § 3161(h)(1)(F). In Henderson v. United States, 476 U.S. 321, 330 (1986), the Supreme Court held that § 3161(h)(1)(F) excludes "all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is 'reasonably necessary.'" The Act also excludes a reasonable period (up to 30 days) during which a motion is actually "under advisement" by the court. 18 U.S.C. § 3161 (h)(1)(J). Other delays excluded from the Act's time limits include delays caused by the unavailability of the defendant or an essential witness (18 U.S.C. § 3161(h)(3)); delays attributable to a co-defendant (18 U.S.C. § 3161(h)(7)); and delays attributable to the defendant's involvement in other proceedings, including delay resulting from an interlocutory appeal. 18 U.S.C. § 3161(h)(1)(E). (Note, however, that the 30-day defense preparation period provided for in § 3161(c)(2) is calculated without reference to the Section 3161(h) exclusions). A defendant may not expressly waive his rights under the Speedy Trial Act. See, e.g., United States v. Saltzman, 984 F.2d 1087, 1090-1092 (10th Cir. 1993). However, if the trial judge determines that the "ends of justice" served by a continuance outweigh the interest of the public and the defendant in a speedy trial, the delay occasioned by such continuance is excluded from the Act's time limits. 18 U.S.C. § 3161(h)(8)(A). The judge must set forth, orally or in writing, his reasons for granting the continuance. 18 U.S.C. § 3161(h)(8)(A). The government should never rely on a defendant's unilateral waiver of his rights under the Act. The government should make sure that the judge enters an "ends of justice" continuance and that he sets forth his reasons for doing so. The Act provides a sanction of dismissal for violation of its time limits that may be with or without prejudice to reprosecution. In assessing whether dismissal should be with prejudice, the court must consider the seriousness of the offense, the circumstances leading to dismissal, and the impact that reprosecution would have on the administration of the Act and on the administration of justice. 18 U.S.C. § 3161(a)(1)-(a)(2). In United States v. Taylor, 487 U.S. 326 (1988), the Supreme Court held that a trial court must examine each statutory factor in deciding to dismiss charges with prejudice. The Court in Taylor found that a minor violation of the time limitations of the act that did not prejudice the defendant's trial preparation did not justify the dismissal with prejudice of an indictment charging serious drug offenses. While a defendant cannot unilaterally waive his rights under the Speedy Trial Act, he can forfeit his right to obtain a dismissal of the case for a claimed violation of the Act by failing to move for dismissal prior to trial. The statute provides that "[f]ailure of the defendant to move for dismissal prior to trial * * * shall constitute a waiver of the right to dismissal under this section." 18 U.S.C. § 3162(a)(2). The Speedy Trial Act is inapplicable to juvenile delinquency proceedings, which have their own speedy trial provision. See 18 U.S.C. § 5036 (speedy trial provision of the Juvenile Delinquency Act). Furthermore, the Interstate Agreement on Detainers (IAD) provides its own time limits for persons incarcerated in other jurisdictions. See 18 U.S.C. Appendix 2, § 2, Articles III-VI. In such a case, the government must comply with both the time limits of the IAD and the Speedy Trial Act. Case law governing the Speedy Trial Act is found in West's Federal Practice Digest 3d, Criminal Law, at Key Numbers 577.1-586. The legislative history is found in S. Rep. No. 1021, 93d Cong., 2d Sess. (1974); H.R. Rep. No. 1508, 93d Cong., 2d Sess., reprinted in 1974 U.S. Code. Cong. and Ad. News 7401; S. Rep. No. 212, 96th Cong., 1st Sess. (1979); H.R. Rep. No. 390, 96th Cong., 1st Sess., reprinted in 1979 U.S. Code Cong. and Ad. News 805. These reports are contained in a one-volume legislative history of the Act, prepared by the Federal Judicial Center, which was previously distributed to all United States Attorneys' Offices. Additional resource tools are 1) the Guidelines to the Administration of the Speedy Trial Act of 1974 as Amended (revised December 1979), which was prepared by the Committee on the Administration of Criminal law of the Judicial Conference of the United States (Judicial Conference Guidelines), and distributed to all United States Attorneys' Offices; and 2) the guidelines adopted by the Court of Appeals for the Second Circuit (Second Circuit Guidelines). A good overview of the Speedy Trial Act (including cases interpreting the Act), and of a defendant's constitutional speedy trial rights in general, is provided in Twenty-Fifth Annual Review of Criminal Procedure, 84 Georgetown Law Journal 1022-1039 (April 1996). Additionally, the Appellate Section of the Criminal Division is available for assistance in interpreting the Act. A defendant's right to a speedy trial has constitutional and statutory underpinnings in addition to the Speedy Trial Act. Federal statutes of limitations provide a time frame within which charges must be filed. Moreover, Rule 48, Fed. R. Crim. P., grants trial courts discretion to dismiss cases that are not brought to trial promptly. See Rule 48(b), Fed. R. Crim. P. (authorizing trial court to dismiss indictment if there is "unnecessary delay" in presenting the charge to a grand jury, in filing an information, or in bringing a defendant to trial). Even if a charge is brought within the period provided by the statute of limitations, a defendant may be able to show that preaccusation delay has violated his Fifth Amendment due process rights. To obtain a dismissal of the charges by reason of pre-indictment delay, a defendant has the burden of establishing that the government engaged in intentional delay to gain a tactical advantage, and that he suffered actual prejudice. United States v. Lovasco, 431 U.S. 783 (1977); United States v. Marion, 404 U.S. 307, 324 (1971). A defendant's rights under the Speedy Trial Clause of the Sixth Amendment are triggered by "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." United States v. Marion, 404 U.S. 307, 320 (1971). (As noted above, any delay before this time must be scrutinized under the Due Process Clause of the Fifth Amendment, not the Sixth Amendment's Speedy Trial Clause. United States v. MacDonald, 456 U.S. 1, 7 (1982)). In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court set out a four-factor test for determining whether delay between the initiation of criminal proceedings and the beginning of trial violates a defendant's Sixth Amendment right to a speedy trial. The test requires the court to consider the length of the delay, the cause of the delay, the defendant's assertion of his right to a speedy trial, and the presence or absence of prejudice resulting from the delay. Barker, 407 U.S. at 530-533. In United States v. Loud Hawk, 474 U.S. 302 (1986), where the reason for the 90-month delay (interlocutory appeals) did not weigh against the government, the Supreme Court held that the possibility of prejudice occasioned by the delay was not sufficient to establish a Sixth Amendment speedy trial violation. Moreover, the courts of appeals routinely reject Sixth Amendment speedy trial challenges in the absence of a showing of prejudice. See, e.g., United States v. Tannehill, 49 F.3d 1049, 1054 (5th Cir.), cert. denied, 116 S. Ct. 167 (1995); United States v. Baker, 63 F.3d 1478, 1497 (9th Cir. 1995), cert. denied, 116 S. Ct. 824 (1996). However, in Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court held that an "extraordinary" eight-and-one-half-year delay between the defendant's indictment and arrest, which resulted from the government's "egregious persistence in failing to prosecute [him]," violated his right to a speedy trial even in the absence of "affirmative proof of particularized prejudice." Doggett, 505 U.S. at 652, 655, 657. Where there are successive state and federal prosecutions, the general rule is that the federal constitutional speedy trial right does not arise until a federal accusation against the defendant is made. Thus, a prior state arrest based on the same facts as the subsequent federal charge does not implicate the federal constitutional guarantee. United States v. Walker, 710 F.2d 1062, 1069 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).