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F.(§4.28)Motion to Dismiss Indictment, or in the Alternative, for a Bill of Particulars

In the Circuit Court of the County of St. Louis

State of Missouri

State of Missouri)

)

vs.)Cause No.

)

______)Division

Defendant.)

Motion to Dismiss the Indictment, or

in the Alternative, for a Bill of Particulars

Comes now Defendant, by and through counsel, and requests that the Court enter an order dismissing the Indictment in this cause because:

1.The Indictment fails to state an offense as required by Rule 23.01(b)(2)–(3);

2.Section 570.080, RSMo Supp. 2011, is unconstitutional in that it, in effect, creates an irrefutable presumption about the admission of other acts or other crimes evidence;

3.The grand jury proceedings in this case were not transcribed, and further, the use of the grand jury in this cause denied Defendant the right to preliminary examination, thus violating [his/her] rights to due process of law and equal protection of law.

Without waiving [his/her] request for dismissal, Defendant prays in the alternative for a bill of particulars.

Suggestions in Support of Motion

1.Upon counsel’s belief and knowledge, it is stated to the Court that beginning in April of 1984, a specially impaneled grand jury in ______County, Missouri, began hearing evidence with regard to allegations of auto theft, receiving stolen property, and other associated matters touching on the alleged trafficking in stolen automobiles and parts. As a result of the grand jury proceedings, multiple indictments were handed down, including the three-count indictment that involves Defendant and is the subject of this cause now before the Court.

2.It is Defendant’s belief that the grand jury proceedings in this cause were not transcribed and that this nontranscription was done intentionally as is the practice throughout the State of Missouri. See generally State ex rel. Dunlap v. Hanna, 561 S.W.2d 411 (Mo. App. W.D. 1977). Because there are no transcripts of this proceeding, Defendant is prevented from challenging the grand jury indictment based on any irregularities connected with the grand jury process,[1] and this violates Defendant’s right to due process of law as granted by article I, § 10, of the Missouri Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. Further, because the failure to record the grand jury proceeding in this cause effectively thwarts Defendant’s discovery as is required by Rule 25.03(A)(3), the same failure to transcribe violates Defendant’s rights to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, § 18(a), of the Missouri Constitution. Finally, it is Defendant’s contention that the grand jury proceedings in this cause prevented Defendant from having the benefit of a preliminary examination, thus violating [his/her] rights to equal protection of law and due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, article I, § 10, of the Missouri Constitution, and article I, § 2, of the Missouri Constitution.

3.Because the grand jury proceedings in this cause were not transcribed, it would be impossible to tell if the grand jury was in any way misled. Further, it is Defendant’s contention that, with the multiple defendants involved in this case and the massive investigation, the confusion involved could amount to misleading of the grand jury, thus requiring dismissal of the Indictment. See generally United States v. Estepa, 471 F.2d 1132, 1134–37 (2nd Cir. 1972); see also United States v. Hogan, 712 F.2d 757 (2nd Cir. 1983); United States v. Leibowitz, 420 F.2d 39 (2nd Cir. 1969).

4.It is jurisdictional prerequisite that any judgment or sentence in a criminal case be based on a valid indictment or information setting out all the necessary elements of the offense. See generally State v. Chambers, 550 S.W.2d 846 (Mo. App. W.D. 1977); State v. Clark, 546 S.W.2d 455 (Mo. App. W.D. 1976). See also Missouri Constitution, article I, § 17 (see also article I, § 19, of the Missouri Constitution in regard to Defendant’s right to be protected against double jeopardy), and the Fifth and Sixth Amendments to the United States Constitution. For the indictment to be sufficient, it must, therefore:

a.inform Defendant of the nature of the accusation;

b.be sufficient and definite enough to enable Defendant to prepare [his/her] defense; and

c.be definite enough to serve as a bar to double jeopardy.

See generally State v. Tandy, 401 S.W.2d 409 (Mo. 1966); State v. Ballard, 394 S.W.2d 336 (Mo. 1965); see also Sanabria v. United States, 437 U.S. 54 (1978); United States v. Thomas, 610 F.2d 1166 (3rd Cir. 1979). A defective indictment will not be saved by the fact that it mirrors a statute or a form. See generally State v. Kesterson, 403 S.W.2d 606, 609 (Mo. 1966); Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979); United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979). The Indictment in this cause is defective because it does not specifically state what particular vehicles, as opposed to any like vehicles, Defendant is alleged to have received knowing them to be stolen. This infirmity is found similarly in all three counts of the Indictment. Further, all three counts of the Indictment fail to state whether Defendant actually received the vehicle or parts of it, and this fails to adequately inform Defendant of the charge against [him/her]. Further, the lack of specificity in terms of what was received and what particular vehicle was received obviously prevents Defendant from using the Indictment in this cause as a bar to double jeopardy beyond these proceedings.

5.An indictment that suffers from duplicity is defective and fails to inform the defendant of the charge or protect the defendant against double jeopardy. See 69 Geo. L.J. 215, 323–34 (1980); see generally United States v. Murray, 618 F.2d 892 (2nd Cir. 1980); United States v. Avila-Dominguez, 610 F.2d 1266 (5th Cir. 1980). A duplicitous indictment is one in which more than one act is charged within a single count. In a sense, there is a duplication of acts within the counts. In a duplicity situation, the defendant cannot be sure what to defend against, or what subsequent charges would be barred in terms of double jeopardy. By the very nature of the pleading in this cause, Defendant is not only not informed what particular vehicle [he/she] is alleged to have received, but [he/she] further is not informed of whether or not [he/she] received the vehicle or parts of it. Thus, if Defendant is being charged in one count with both receiving a stolen car and receiving parts of a stolen car, both felonies, allegedly because [he/she] is in the business of buying and selling vehicles and vehicle parts, as stated in § 570.080, RSMo Supp. 2011, the use of this charge is duplicitous and must fail.

6.The Indictment does not allege specifically enough the time and place of the alleged offense as definitely as can be done as required by Rule 23.01(b)(3), and it does not otherwise comply with all the requirements of Rule 23.01. The Indictment does not allege the ownership of the property or that the property belonged to another. Further, the Indictment is unclear as to dates and location of the alleged reception of stolen property, thus making it impossible to defend against the charges. It does appear from the Indictment in this cause that the prosecutors attempted to follow the MAI forms in pleading this Indictment. Yet, following a provided-for form or the statute involved does not necessarily equate to sufficient pleading. See Kesterson, 403 S.W.2d 606; Cecil, 608 F.2d 1294; Goodloe, 605 F.2d 1041. In this regard, the Supreme Court of Missouri in Kesterson stated as follows:

Generally, it is permissible and sufficient for an indictment . . . to charge the offense in the language of the statute alleged to be violated if the statute sets forth all the constituent elements of the offense. However, there are qualifications of this rule. . . . “Such is not the case if the statute creating the offense uses generic terms in defining the offense and does not individuate the offense with such particularity as to notify the defendant of what he or she is to defend against.”

Kesterson, 403 S.W.2d at 609 (citations omitted). Defendant specifically states that the Indictment in this case is deficient in that:

a.it denies Defendant proper notice;

b.it does not provide Defendant with adequate information to build a defense;

c.it does not provide Defendant with adequate notice to create a bar for double jeopardy to future charges; and

d.it is so indefinite that Defendant cannot tell what is a charged act and what are uncharged acts within the discovery provided to Defendant.

7.The Indictment in this cause should be dismissed because § 570.080.3 is unconstitutional in that it denies Defendant equal protection of the law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and article I, § 2, of the Missouri Constitution because the statute provides a different penalty for an unreasonably selected class of persons, i.e., persons who deal in goods of the type in question are always guilty of a felony while other persons may be guilty only of a misdemeanor if the value of the property is less than $150. See generally Yick Wo v. Hopkins, 118 U.S. 356 (1886). Defendant contended that a special classification was enacted because dealers present a special problem by virtue of the fact they presumably have a regular clientele and perhaps a legitimate business to facilitate their illegal trade. Defendant contended that this reasoning was preposterous and unfounded in fact and experience. Further, Defendant urged the Court that § 570.080.2 is unconstitutional. That subsection provides as follows:

2.Evidence of the following is admissible in any criminal prosecution pursuant to this section to prove the requisite knowledge or belief of the alleged receiver:

(1)That he was found in possession or control of other property stolen on separate occasions from two or more persons;

(2)That he received other stolen property in another transaction within the year preceding the transaction charged;

(3)That he acquired the stolen property for a consideration which he knew was far below its reasonable value.

Thus, by legislative fiat, this law creates a nonrebuttable presumption that other act evidence, evidence that under common law is presumptively inadmissible, is admissible. This provision of the statute not only creates a nonrebuttable presumption, see Mullaney v. Wilbur, 421 U.S. 684 (1975); Engle v. Koehler, 707 F.2d 241 (6th Cir. 1983), aff’d, 466 U.S. 1 (1984), but also shifts the burden of proof, Sandstrom v. Mont., 442 U.S. 510 (1979); see also Conn. v. Johnson, 460 U.S. 73 (1983), thus denying Defendant due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 10, of the Missouri Constitution. Further, the admissibility of other act evidence in this cause would be so prejudicial and outweigh any probative value as to violate due process of law.

8.None of the counts has alleged what interest in the allegedly stolen items Defendant intended to deprive the owner of, whether it was an ownership interest, a possessory interest, a license interest, the interest of an invitee, or merely the general interest of the public.

9.Defendant urges the Court that the issues raised in this motion are constitutional in nature. The procedure against Defendant in terms of this Indictment violates [his/her] rights under the spirit of article I, §§ 2, 10, 16, 17, 18, and 19, of the Missouri Constitution and the Fifth and Sixth Amendments to the United States Constitution, as incorporated to the states through the Fourteenth Amendment to the United States Constitution.

10.Defendant also takes the position that the defects described in this Indictment are not subject to amendment by information in lieu of indictment because it would create an additional different offense that is charged and would prejudice the substantial rights of Defendant. See generally State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969); see also State v. Warfield, 507 S.W.2d 428 (Mo. App. E.D. 1974). Defendant, while recognizing the proposition in Missouri law that in limited situations an amended information may be filed in lieu of indictment, takes the position that an indictment cannot be amended other than to delete surplusage because allowing amendment of an indictment or information in lieu of indictment involves invading the province of the grand jury. Further, if amendment is allowed, Defendant would not be ensured that [he/she] is being charged on the same offense for which the grand jury indicted [him/her]. See generally Stirone v. United States, 361 U.S. 212 (1960); United States v. Glassman, 562 F.2d 954 (5th Cir. 1977); Indictment Sufficiency, 70 Colum. L. Rev. 876 (1970).

11.Rule 23.04 allows Defendant to move for a bill of particulars if the indictment or information alleges essential facts to state an offense but fails to provide Defendant with sufficient information to prepare a defense. The Rule provides that the motion is to be made within ten days of arraignment, or at such a later date as the court may permit. Defendant’s counsel in this cause was not officially retained in this matter until on or about August 17, 1984. And Defendant did not have an opportunity to travel to ______, Missouri, and be apprised of any discovery in this case until on or about September 10, 1984. As the Court is aware, this matter involves an investigation in which there have been multiple indictments and touches on a discovery file that includes _____ pages and includes video and audiotapes of potential witnesses now in the possession of the Federal Bureau of Investigation and local authorities. Even with the good faith and cooperative efforts of the ______County Prosecutor’s Office, it was impossible for Defendant to be in a position to move for dismissal in this cause or to file for a bill of particulars within the ten-day time frame as defined by the Rule. For these reasons, Defendant specifically asks leave of Court to file the bill of particulars in this cause and asks the Court to consider Defendant’s alternative request for a bill of particulars.

12.Specifically, Defendant, in this alternative request for a bill of particulars, asks the following:

a.The actual automobiles or vehicles alleged in each count of the indictment, with specificity

b.Whether the State is alleging Defendant received the automobile or parts of it

c.What parts, if any, the State alleges Defendant received

d.Where in ______County these offenses occurred

e.Any other participants involved in the allegations contained in the Indictment

f.The owners, with complete addresses, of any of the vehicles alleged to be stolen in the Indictment

g.The value of the property alleged in the Indictment, or the value of the parts of automobiles alleged in the Indictment

Wherefore, based on the foregoing, Defendant requests an order of this Court dismissing this Indictment, or, alternatively, without waiving Defendant’s request for dismissal, Defendant requests that this Court order the State to provide a bill of particulars as requested and Defendant requests that the Court enter any other relief deemed just and proper.

Respectfully submitted,

Law Firm

Name

Address

Phone Number

Missouri Bar Number

Attorney for the Defendant

[1]Defendant suggests respectfully, without undue case citation, the grand jury proceedings can be challenged for a variety of reasons, including:

misleading of the grand jury;
excessive use of hearsay before the grand jury;
use of summaries before the grand jury;
use of unauthorized personnel being before the grand jury;
use of grand jury proceedings as an alternative to civil remedies, and the like; and
dissemination of grand jury information to unauthorized parties.

Further, counsel suggests to the Court that much of the basis for these challenges of the grand jury will be the subject of discussion in federal caselaw authority. Defendant recognizes that this matter is a matter pending in the Circuit Court of ______County, Missouri, and that the Court will be governed by the laws of the State of Missouri. Defendant suggests to the Court that it is the law in the State of Missouri that, when matters arise as to which there is a lack of state precedent and which are the subject of federal law, the Missouri courts will often defer to federal law and find it persuasive. See, e.g., Kansas City v. Mo. Comm’n on Human Rights, 632 S.W.2d 488, 490 (Mo. banc 1982) (touching upon allegations of sexual and racial discrimination). See also State v. Prier, 561 S.W.2d 437, 439 (Mo. App. S.D. 1978) (touching on issues of severance of counts and defendants); § 416.141, RSMo 2000 (which by law incorporates federal caselaw authority in the context of state antitrust violations). Further, Defendant has cited in this motion certain matters of federal law regarding the motion for a bill of particulars, and also for insufficiency of the indictment. In this regard, it is again Defendant’s contention that the state law of Missouri would indicate that federal precedent should be considered and be persuasive. Rule 23.04 indicates that the bulk of that Rule is an exact duplication of Federal Rule of Criminal Procedure 7(f) regarding bill of particulars. Further, it is Defendant’s contention that federal precedent would be persuasive and should be considered within the confines of this motion regarding the sufficiency of pleading in that the pleading is relevant to the notice requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.