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United States v. Marshall - 985 F.2d 901 (7th Cir. 1993)

Rule:

Within the discretion of the court, surplusage may be stricken from the indictment if the court finds the language to be immaterial, irrelevant, or prejudicial.

Facts:

With the assistance of defendant Mondo Elliot and others, defendant Jerome Erick Marshall used portions of cocaine to manufacture cocaine base, commonly known as "crack cocaine". The remaining cocaine was placed in small appliances or baby stroller boxes and was shipped by Marshall, Elliot, and others to Indianapolis, Indiana. The cocaine base was similarly packaged and was shipped elsewhere. Between Sept. 1989 and April 1990, Marshall directed the shipment of at least 15 kilograms of cocaine to contacts in Indianapolis. At the direction of Marshall and Elliot, United States currency derived from the sale of such cocaine was shipped inside small appliance boxes and wire transferred via Western Union to Marshall and Elliot (and their designates) in California. Ultimately, Marshall and Elliot were convicted in federal district court on a superseding indictment that charged them with conspiracy to distribute cocaine and to commit money laundering. Defendants appealed.

Issue:

(a) Was there sufficient evidence to convict defendants? (b) Was there improper use of an indictment?

Answer:

(a) Yes; (b) No.

Conclusion:

The appellate court affirmed the district court's judgment. The court ruled: (a) The evidence against Marshall established that he purchased large quantities of cocaine in Los Angeles, packaged and shipped the cocaine to Minneapolis and Indianapolis, established contacts to assist in cocaine distribution, and directed the pricing of cocaine. The evidence also revealed that Marshall directed others to wire transfer and ship the proceeds of cocaine sales, received wire transferred and shipped proceeds, directed others to acquire firearms on his behalf, and financially backed the straw purchase of firearms without filing federally required forms. The evidence against Elliot was equally abundant and established that he participated in the packaging and shipping of large quantities of cocaine from Los Angeles to Minneapolis and Indianapolis, travelled to Minneapolis to distribute cocaine, attempted to establish contacts in Cleveland, Ohio for cocaine distribution, and collected money from the distribution of cocaine. Thus, sufficient evidence supported defendants' convictions. (b) Defendants' claims that they were denied a fair trial as a result of the prejudicial surplusage of the indictment and its misuse before the jury were without merit. The indictment, which was 25 pages long and alleged that defendants had committed 94 overt acts, was read to the jury during opening argument and later given to them during their deliberations. However, close examination of the indictment revealed that the language utilized was neither inflammatory nor prejudicial. The language of the indictment could hardly be characterized as immaterial since it delineated with great specificity the numerous charges alleged by the Government against each defendant. Moreover, the district court instructed the jury that the indictment was not evidence and that guilt or innocence had to be determined only upon the evidence presented in the case. Accordingly, there was no prejudice.

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