RULING ON DEFENDANT’S MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT AND IN THE ALTERNATIVE TO EXCLUDE EVIDENCE OF OVERT ACTS 46-48
POLOZOLA, Chief Judge.
1. INTRODUCTION AND BACKGROUND:
Defendant Greg Tarver has filed a motion to strike certain language from the indictment pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure. In the alternative he asks the Court to exclude evidence of the overt acts at trial.
Specifically, Tarver contends the language in Overt Acts 46-48 of the superseding indictment is “prejudicial,” “misleading,” “irrelevant” and “inflammatory.”
As a result, he argues that the information in these overt Acts should be completely stricken from the indictment. Alternatively, Tarver asks that government be “foreclosed” from presenting evidence to support the allegations made in Overt Acts 46-48.
For reasons which follow, the Court denies defendant’s motion to strike. Tar-ver’s motion to prevent the government from using the evidence at trial will be dismissed without prejudice, reserving to Tarver the right to file a motion in limine at a later date.
2. DEFENDANT’S ARGUMENTS:
The defendant asks the Court to invoke its power under Rule 7(d) to strike the language in Overt Acts 46-48 of the superseding indictment.
The defendant essentially maintains that because he is not charged under the RICO conspiracy count
, the Court should strike any references to him in the overt acts listed in support of that count. Tarver complains that references in the indictment to his involvement in the alleged “Jazz Scheme,” a portion of the RICO conspiracy count, will prejudice his rights to a fair trial for several reasons. First, Tarver argues that using his name in reference to counts he is not charged with may “open the door for the prosecution to attempt to enlarge the charges and may lead the jury to infer accusations of crimes beyond those actually charged.”
Additionally, Tarver claims he may be harmed because “material prejudice and otherwise inadmissible information will be conveyed to the jury when the indictment is read.”
3. GOVERNMENT’S RESPONSE:
The government has filed an opposition to the defendant’s motion.
The government argues that Overt Acts 46-^18 are relevant to the RICO enterprise listed in the indictment. The government maintains that the information in Overt Acts 46-48 “provides essential proof regarding the existence of the racketeering enterprise and of its membership, nature, structure, and modes of operation.”
According to the government, the overt acts establish Tarver’s membership in the alleged RICO conspiracy and also his participation in the efforts to corrupt the 1993 licensing process.
The government also argues Overt Acts 46-48 are relevant to charges contained in Counts 3 and 4 of the indictment (the Conspiracy to Extort Jazz). Despite the fact that Tarver is not charged in these counts, the government says the information is “relevant to establish the state of mind of the extortion victims” and also is a “necessary factual backdrop to the events in Counts 3 and 4.”
4. APPLICABLE LEGAL PRINCIPLES:
Rule 7(d) of the Federal Rules of Criminal Procedure permits the court to strike surplus information from the indictment.
Under this rule, the court may strike language that is irrelevant, prejudicial or inflammatory.
Conversely, if the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, the court should not strike the language.
Additionally, the court should not grant a defendant’s motion to strike surplusage as prejudicial unless it is clear that the information is not relevant and is prejudicial.
This standard is “exacting” and strict, and as a result, the motion is rarely granted.
In cases where the government charges a defendant with conspiracy, the court should not strike overt acts that are relevant to the charges.
The fact that the evidence or overt acts are not elements of the charged offense does not require the court to strike the evidence.
5. APPLICATION OF LAW TO FACTS:
In denying the defendant’s motion to strike, the Court expressly finds that the information contained in Overt Acts 46-48 is sufficiently relevant to the RICO charge in Count 2 and is not prejudicial or inflammatory as the defendant contends. Tarver and the other defendants are also charged with a violation of the so called “aiding and abetting” statute.
The fact that Tarver is charged with a violation of this statute is an additional reason not to strike the language requested. The jury will be clearly instructed on which charges have been filed against each of the defendants. The jury will also be instructed on how the jury is to consider the evidence presented as to each defendant.
Although the Court will not decide whether to admit the evidence complained of until the trial, the Court now finds that Tarver has failed to satisfy the “exacting” and strict standard required to strike information from the indictment. The contacts listed in Overt Acts 46^48 appear relevant to the existence of the alleged
RICO enterprise and the methods allegedly used by the enterprise to influence the riverboat licensing process. The Court agrees with the government’s position that these alleged contacts would offer proof of the “structure and means by which the enterprise operated through its members.”
The Court finds that Tarver will not suffer undue prejudice because of the references to him in Overt Acts 46-48.
Free access — add to your briefcase to read the full text and ask questions with AI
RULING ON DEFENDANT’S MOTION TO STRIKE SURPLUSAGE FROM THE INDICTMENT AND IN THE ALTERNATIVE TO EXCLUDE EVIDENCE OF OVERT ACTS 46-48
POLOZOLA, Chief Judge.
1. INTRODUCTION AND BACKGROUND:
Defendant Greg Tarver has filed a motion to strike certain language from the indictment pursuant to Rule 7(d) of the Federal Rules of Criminal Procedure. In the alternative he asks the Court to exclude evidence of the overt acts at trial.
Specifically, Tarver contends the language in Overt Acts 46-48 of the superseding indictment is “prejudicial,” “misleading,” “irrelevant” and “inflammatory.”
As a result, he argues that the information in these overt Acts should be completely stricken from the indictment. Alternatively, Tarver asks that government be “foreclosed” from presenting evidence to support the allegations made in Overt Acts 46-48.
For reasons which follow, the Court denies defendant’s motion to strike. Tar-ver’s motion to prevent the government from using the evidence at trial will be dismissed without prejudice, reserving to Tarver the right to file a motion in limine at a later date.
2. DEFENDANT’S ARGUMENTS:
The defendant asks the Court to invoke its power under Rule 7(d) to strike the language in Overt Acts 46-48 of the superseding indictment.
The defendant essentially maintains that because he is not charged under the RICO conspiracy count
, the Court should strike any references to him in the overt acts listed in support of that count. Tarver complains that references in the indictment to his involvement in the alleged “Jazz Scheme,” a portion of the RICO conspiracy count, will prejudice his rights to a fair trial for several reasons. First, Tarver argues that using his name in reference to counts he is not charged with may “open the door for the prosecution to attempt to enlarge the charges and may lead the jury to infer accusations of crimes beyond those actually charged.”
Additionally, Tarver claims he may be harmed because “material prejudice and otherwise inadmissible information will be conveyed to the jury when the indictment is read.”
3. GOVERNMENT’S RESPONSE:
The government has filed an opposition to the defendant’s motion.
The government argues that Overt Acts 46-^18 are relevant to the RICO enterprise listed in the indictment. The government maintains that the information in Overt Acts 46-48 “provides essential proof regarding the existence of the racketeering enterprise and of its membership, nature, structure, and modes of operation.”
According to the government, the overt acts establish Tarver’s membership in the alleged RICO conspiracy and also his participation in the efforts to corrupt the 1993 licensing process.
The government also argues Overt Acts 46-48 are relevant to charges contained in Counts 3 and 4 of the indictment (the Conspiracy to Extort Jazz). Despite the fact that Tarver is not charged in these counts, the government says the information is “relevant to establish the state of mind of the extortion victims” and also is a “necessary factual backdrop to the events in Counts 3 and 4.”
4. APPLICABLE LEGAL PRINCIPLES:
Rule 7(d) of the Federal Rules of Criminal Procedure permits the court to strike surplus information from the indictment.
Under this rule, the court may strike language that is irrelevant, prejudicial or inflammatory.
Conversely, if the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, the court should not strike the language.
Additionally, the court should not grant a defendant’s motion to strike surplusage as prejudicial unless it is clear that the information is not relevant and is prejudicial.
This standard is “exacting” and strict, and as a result, the motion is rarely granted.
In cases where the government charges a defendant with conspiracy, the court should not strike overt acts that are relevant to the charges.
The fact that the evidence or overt acts are not elements of the charged offense does not require the court to strike the evidence.
5. APPLICATION OF LAW TO FACTS:
In denying the defendant’s motion to strike, the Court expressly finds that the information contained in Overt Acts 46-48 is sufficiently relevant to the RICO charge in Count 2 and is not prejudicial or inflammatory as the defendant contends. Tarver and the other defendants are also charged with a violation of the so called “aiding and abetting” statute.
The fact that Tarver is charged with a violation of this statute is an additional reason not to strike the language requested. The jury will be clearly instructed on which charges have been filed against each of the defendants. The jury will also be instructed on how the jury is to consider the evidence presented as to each defendant.
Although the Court will not decide whether to admit the evidence complained of until the trial, the Court now finds that Tarver has failed to satisfy the “exacting” and strict standard required to strike information from the indictment. The contacts listed in Overt Acts 46^48 appear relevant to the existence of the alleged
RICO enterprise and the methods allegedly used by the enterprise to influence the riverboat licensing process. The Court agrees with the government’s position that these alleged contacts would offer proof of the “structure and means by which the enterprise operated through its members.”
The Court finds that Tarver will not suffer undue prejudice because of the references to him in Overt Acts 46-48. The Court also believes that properly drafted jury instructions will minimize any prejudicial effect and preserve the defendant’s right to a fair trial should the evidence be admitted.
Therefore,
IT IS ORDERED that the defendant’s motion to strike be and is hereby DENIED.
IT IS FURTHER ORDERED that defendant’s alternative motion to limit the government’s use of this information at trial is DENIED without prejudice, reserving to Tarver the right to file a motion in limine within the time limits set forth in the scheduling order.
IT IS SO ORDERED.