United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, United States District Court Senior
matter is before the court on motion of the defendants,
Philip E. Michael, II (“Michael”), to dismiss
Counts 2 and 3 of the Second Superseding Indictment
charges Michael, Meds 2 Go, and Euton Laing,  with Conspiracy
to Violate the Federal Food, Drug, and Cosmetic Act by
misbranding drugs (Count 2), and Conspiracy to Distribute
Misbranded Drugs (Count 3). The defendant has moved to
dismiss these counts for insufficiency of the indictment,
citing Hamling v. United States, 418 U.S. 87, 177
(1974) and United States v. Superior Growers Supply,
Inc., 982 F.2d 173, 176 (6th Cir. 1992).
indictment must provide a “plain, concise, and definite
written statement of the essential facts constituting the
offense charged.” Fed.R.Crim.P. 7(c). The purpose of an
indictment is “to inform the defendant of the nature of
the accusation against him.” Russell, 369 U.S.
at 767 (quoting United States v. Hess, 124 U.S. 483,
487 (1888)). “The Federal Rules of Criminal Procedure,
18 U.S.C.A., were designed to eliminate technicalities in
criminal pleading and are to be construed to secure
simplicity in procedure. Rule 2, F.R.Crim.Proc.”
United States v. Debrow, 346 U.S. 374, 376
(1953). As explained by the Supreme Court as early as 1895,
an indictment need not be a literary work of art:
T]he true test is, not whether it might possibly have been
made more certain, but whether it contains every element of
the offense intended to be charged, and sufficiently apprises
the defendant of what he must be prepared to meet, and, in
case any other proceedings are taken against him for a
similar offense, whether the record shows with accuracy to
what extent he may plead a former acquittal or conviction.
Evans v. U.S., 153 U.S. 584, 587, 588, 14 Sup. Ct. 934;
Batchelor v. U.S., 156 U.S. 426, 15 Sup. Ct. 446.
Cochran v. United States, 157 U.S. 286, 290, 15
S.Ct. 628, 630, 39 L.Ed. 704 (1895).
indictment must be read as a whole, accepting the factual
allegations as true, and construing those allegations in a
practical sense with all the necessary implications.
United States v. Reed, 77 F.3d 139, 140 n. 1 (6th
Cir.1996) (en banc). An indictment is to be construed
liberally in favor of its sufficiency. United States v.
Davis, 306 F.3d 398, 411 (6th Cir.2002). United
States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007).
The Sixth Circuit further discussed challenges similar to
those made by the defendants in this case:
Here, defendant contends that Counts One and Two of the
indictment, which allege violations of the mail fraud
statute, 18 U.S.C. § 1341, do not adequately set forth
two of the requisite elements of that offense: (1) that
defendant acted willfully with an intent to defraud, and (2)
that a “material” misrepresentation was made. The
mail fraud statute prohibits the use of the mails by any
person “having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises....” 18 U.S.C. §
1341. “Mail fraud consists of (1) a scheme or artifice
to defraud; (2) use of mails in furtherance of the scheme;
and (3) intent to deprive the victim of money or
property.” United States v. Turner, 465 F.3d
667, 680 (6th Cir.2006). Materiality of falsehood is a
requisite element of mail fraud. Neder v. United
States, 527 U.S. 1, 25, 119 S.Ct. 1827, 144 L.Ed.2d 35
(1999). The misrepresentation “must have the purpose of
inducing the victim of the fraud to part with the property or
undertake some action that he would not otherwise do absent
the misrepresentation or omission.” United States
v. Daniel, 329 F.3d 480, 487 (6th Cir.2003). A
misrepresentation “is material if it has a natural
tendency to influence, or is capable of influencing, the
decision of the decision-making body to which it was
addressed.” Neder, 527 U.S. at 16, 119 S.Ct.
1827 (internal citation and quotation marks omitted).
The requisite intent to defraud requires “an intent to
deceive or cheat for the purpose of either causing a
financial loss to another or bringing about a financial gain
to oneself.” Sixth Circuit Pattern Jury Instruction
10.01(2)(E); see also United States v. Frost, 125
F.3d 346, 371 (6th Cir.1997). With regard to both elements
*532 at issue, an indictment is not fatally insufficient for
its failure to allege these elements in haec verba,
if the facts alleged in the indictment warrant the inference
of such elements, i.e., materiality and intent to defraud.
United States v. McGough, 510 F.2d 598, 602 (5th
Cir.1975) (materiality); United States v. Hoag, 823
F.2d 1123, 1126 (7th Cir.1987) (intent to defraud).
United States v. McAuliffe, 490 F.3d at 531-32.
challenges the sufficiency of Counts 2 and 3 on the ground
that these counts fail to allege that the defendants intended
to defraud anyone, and fail to allege that any prescription
drug was “misbranded.” He also urges that Counts
2 and 3 are multiplicious.
on its face, it does not appear that Counts 2 and 3 are
multiplicious, as they purport to charge 2 separate
conspiracies, one involving business conducted through Meds 2
Go, Inc. from 2010 to 2012 (Count 2) and one involving
business conducted through Aracoma Pharmacy beginning in June
2009 and continuing to May 2012 (Count 3). Whether the United
States proves two separate conspiracies remains to be seen.
However, for purposes of assessing the SSI's sufficiency,
we find that it meets the standard for notice to the
defendant and avoidance of double jeopardy. Hamling,
the defendants challenges that these counts fail to allege
that Michael intended to defraud anyone and fail to allege
that any prescription drug was “misbranded, ” we
first reiterate that the indictment must be read as a whole.
prescription drugs are identified in the SSI, such as Soma,
Ultram, and Fioricet. SSI, ¶¶ 34-36. Counts 2 and 3
allege that prescription drugs dispensed by Michael without a
valid prescription ...