United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., SENIOR JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on Defendants' Joint Motion to
Strike Portions of the Indictment and Motion in Limine. [DN
102]. The Court held a hearing on the Motion on October 3,
2019. Fully briefed, this matter is ripe for decision.
agents of Armstrong Coal Company, are charged with conspiracy
to defraud the United States. 18 U.S.C. § 371. The basis
for the Indictment is the allegation that Defendants
“conspired to commit dust fraud by knowingly and
willfully altering the company's required dust-sampling
procedures, by circumventing the dust-sampling regulations,
submitting false samples, and by making false statements on
dust certification records.” [DN 1 ¶ 1].
August 1, 2019, Defendants submitted a Joint Motion to Strike
Portions of the Indictment and in Limine. [DN 102].
Defendants first move the Court to strike from paragraphs 1,
4, 5, and 6 of the Indictment “allegations that
respirable coal mine dust causes lung disease, that
respirable coal mine dust causes pneumoconiosis and
silicosis, that federal regulations were enacted to reduce
levels of respirable coal mine dust, and that reducing levels
of respirable coal mine dust is the only way to prevent such
diseases.” [DN 102-1 at 1]. Defendants argue that the
only charge in the Indictment-18 U.S.C. § 371-concerns
conspiracy to commit an offense or to defraud the United
States and that the cited information in those paragraphs is
irrelevant to the charge. [DN 102-1 at 2-2]. The Government
responds that the information contained in those paragraphs
is “at the heart of this case” and should not be
stricken. [DN 106 at 1].
also move the Court to issue an Order prohibiting the
Government from referencing at trial any information
contained in the above-mentioned paragraphs. [DN 102; DN
102-1 at 3-5]. Defendants argue that such evidence is not
relevant, but that even if the Court finds that the evidence
is relevant, its probative value is outweighed by unfair
prejudice. [DN 102-1 at 3-5]. The Government objects to this
request and argues that the evidence is relevant to
Defendants' motive and that there is nothing about the
information that is unduly prejudicial to Defendants. [DN 106
Rule of Criminal Procedure 7(c)(1) requires an indictment to
“be a plain, concise, and definite written statement of
the essential facts constituting the offense charged.”
If an indictment does not satisfy the confines of Rule 7, a
court “[u]pon the defendant's motion . . . may
strike surplusage from the indictment.” Fed. R. Crim.
P. 7(d); see also United States v. Kemper, 503 F.2d
327, 329 (6th Cir. 1974) (“Rule 7(d) . . . makes the
striking of surplusage permissive but not mandatory.”).
The Sixth Circuit has said that “[t]he Rule is properly
invoked when an indictment contains nonessential allegations
that could prejudicially impress the jurors.”
Kemper, 503 F.2d at 329. “[I]f the language in
the indictment is information which the government hopes to
properly prove at trial, it cannot be considered surplusage
no matter how prejudicial it may be (provided, of course, it
is legally relevant).” United States v.
Thomas, 875 F.2d 559, 562 n.2 (6th Cir.) (citation
omitted), cert denied, 493 U.S. 867 (1989). Accordingly, any
information stricken from the indictment must also be deemed
not legally relevant for purposes of trial.
Government cites to several cases as support for its
contention that it is entitled to present, both in the
Indictment and to the jury, the basic purpose of the
regulations under which the defendants are accused. Indeed,
several cases in the Sixth Circuit have addressed motions to
strike “background” information contained in
indictments. The consensus of that line of cases is that
language ought not be stricken from an indictment where the
information helps to make sense of or explain the context for
the criminal charge. See United States v.
Huddleston, No. 3:16-CR-61, 2017 WL 3332757, at *7 (E.D.
Tenn. Aug. 3, 2017) (“[T]he United States' use of
background information in an indictment is not surplusage
when . . . it helps to make sense of or establish context for
the criminal charges.”); United States v.
Daughtery, No. 5:16-CR-22, 2017 WL 781048, at *2 (E.D.
Ky. Feb. 28, 2017) (“[T]he Court should not strike
phrases-included in the Indictment's background
section-because they indeed help explain the context and
circumstances surrounding the charged fraud in order for the
charges to be understood.”) (internal quotation marks
and citation omitted); United States v. Garton, No.
3:08-CR-31, 2009 WL 1424429, at *3 (E.D. Ky. May 21, 2009)
Court concludes that some of the language that Defendants
find objectionable should not be stricken because it provides
necessary context to the charges in the indictment.
Therefore, certain language concerning the statutory scheme
and purposes of the health and safety standards will remain.
However, language specifically mentioning black lung and the
disease process is not relevant and serves no purpose other
than to inflame the jury. It will be stricken.
Government argues that evidence of disease is relevant since
it will be seeking a sentencing enhancement under § 5K2
of the Sentencing Guidelines. This evidence may be relevant
at a sentencing hearing but it will not be allowed at the
trial of this case. The attached document reflects the
Court's judgment as to which language should remain in
the indictment and which should be stricken. The scope of
evidence permitted at trial must fall within the confines of
the information remaining in those paragraphs.
reasons set forth above, IT IS HEREBY ORDERED that
Defendants' Joint Motion to Strike and in Limine [DN 102]
is GRANTED in part and DENIED in part.