Criminal - Indictment - Dismissal.

Byline: Mass. Lawyers Weekly Staff

Where a U.S. District Court judge dismissed the aggravated identity theft counts of an indictment, the judge erred in ruling that the facts alleged in the indictment were insufficient to establish the charged offense.

Dismissal order reversed.

"A United States grand jury indicted three doctors and three employees of a durable medical equipment ('DME') supplier in Puerto Rico on counts of health care fraud and conspiracy to commit health care fraud, under 18 U.S.C. 1347 and 1349, and aggravated identity theft under 18 U.S.C. 1028A. The district court dismissed the aggravated identity theft counts because it agreed with the defendants that the facts alleged in the indictment did not adequately make out a case for aggravated identify theft. The government now appeals, contending both that the indictment's factual allegations, if true, describe an instance of aggravated identity theft and that, in any event, a motion to dismiss a grand jury indictment does not provide an occasion in this case for determining, over the government's objection, whether the facts alleged in the indictment are sufficient to establish the charged offense. Because we agree with the latter argument, we need not consider the former, and we reverse the order of dismissal.

"Federal Rule of Criminal Procedure 12(b) provides that '[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.' The defense that the indictment 'fail[s] to state an offense' must be raised by pretrial motion when 'the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.' Fed. R. Crim. P. 12(b)(3)(B)(v). For this reason, the district court was certainly correct to entertain such a pretrial motion claiming that the indictment failed to state a criminal offense.

"The indictment, however, is on its face adequate to state an offense. Unlike a civil complaint that need allege facts that 'plausibly narrate a claim for relief,' a criminal indictment need only 'apprise the defendant of the charged offense,' 'so that the defendant can prepare a defense and plead double jeopardy in any future prosecution for the same offense.'

"Such is just what the government's superseding indictment did in this case. It fairly identified the defendants' conduct alleged to be a crime: the submission of specific, identified claim forms on specified dates...