US v. Kamasinski

• Court: District Court, D. New Hampshire
• Decided: November 25, 1996
• Docket: CR-96-16-B
• Status: Published

Opinion

US v. Kamasinski CR-96-16-B 11/25/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 96-16-01-B

Theodore Kamasinski

O R D E R

Theodore Kamasinski moves to dismiss a March 6, 1996

indictment charging him with wire fraud because it does not

sufficiently inform him of the factual basis for the charge. I

grant Kamasinski’s motion and dismiss the indictment.

THE INDICTMENT Stripped of boilerplate, the indictment charges that Kamasinski and a friend, Carol Rubin,1 participated in a scheme

to defraud “an individual known to the grand jury and referred to

as John Doe, and others, also known to the grand jury.” The

indictment states that the scheme began on or about February 1990

and continued until at least March 14, 1991. The indictment

1 The charge against Rubin was later dismissed on the government’s motion after Rubin agreed to cooperate against Kamasinski.

1 describes the fraudulent scheme by stating that Kamasinski and

Rubin persuaded “John Doe to give up sums of money to Kamasinski

and Rubin, falsely representing that said monies were to used

[sic] and were being used for legitimate business purposes and

legal fees . . . .” Finally, it lists the dates of several

telephone conversations and fax transmissions between New

Hampshire and Illinois and Massachusetts and Illinois that

allegedly occurred during the course of the fraud scheme. The

indictment provides no other information concerning the

underlying facts.

DISCUSSION

Generally, an indictment is sufficient if it "contains the

elements of the offense charged and fairly informs a defendant of

the charge against which he must defend, and . . . enables him to plead an acquittal or conviction in bar of future prosecutions

for the same offense." Hamling v. United States, 418 U.S. 87, 117 (1974); see also United States v. Serino, 835 F.2d 924, 929

(1st Cir. 1987). An indictment may plead the crime in the

language of the statute, "but it must be accompanied with such a

statement of the facts and circumstances as will inform the

accused of the specific offense, coming under the general

description, with which he is charged." Hamling, 418 U.S. at 117

2 (internal quotation and citation omitted); see also Fed. R. Crim.

P. 7(c)(1) (the indictment "shall be a plain, concise and

definite written statement of the essential facts constituting

the offense charged . . ."). "The test for sufficiency,

therefore, is not whether, in hindsight, the indictment or

information could have been more complete, but rather whether it

fairly identifies and describes the offense." United States v.

Allard, 864 F.2d 248, 250 (1st Cir. 1989) (citations omitted);

see also United States v. Medina-Garcia, 918 F.2d 4, 8 (1st Cir.

1990) (upholding sufficiency of detailed indictment based on

practicalities despite arguably incorrect technical word choice).

The indictment in this case alleges each element of wire

fraud, but provides little information concerning how the crime

was committed. The indictment broadly states that the fraud

scheme began on or about February 1990 and continued until at least March 14, 1991. It fails to identify any specific place

where the fraud scheme was implemented and instead states only

that the crime occurred “in New Hampshire and elsewhere.” More

importantly, it conceals the identities of the victims and

describes the fraud scheme only in generic terms. While no

single ommission would require dismissal, the indictment as a

whole simply fails to provide Kamasinski with enough information

to either respond to the charge or plead double jeopardy if he is

3 later charged with the same offense. See, e.g., United States v.

Yefsky, 994 F.2d 885, 893 (1st Cir. 1993) (conspiracy to commit

mail fraud indictment must describe the mail fraud scheme);

United States v. Tomasetta, 429 F.2d 978, 980 (1st Cir. 1970)

(indictment’s failure to identify the victim, the means by which

threats were made, and the location of the alleged offense

requires dismissal of extortion charge); United States v. Josten,

704 F. Supp. 841, 844 (N.D. Ill. 1989) (wire fraud indictment

dismissed where indictment failed to identify victim, the dates

of the offense or the allegedly false representations).

Accordingly, the indictment must be dismissed.

CONCLUSION

Kamasinski’s motion to dismiss the March 6, 1996

indictment(document no. 33) is granted. SO ORDERED

____________________________ Paul Barbadoro United States District Judge November 25, 1996 cc: Charles Temple, Esq. Arnold Huftalen, Esq., AUSA United States Marshal United States Probation