United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
R. LEICHTY JUDGE, UNITED STATES DISTRICT COURT
12, 2019, a grand jury returned a one-count indictment
alleging Mr. Edward Schafer was a felon unlawfully in
possession of a firearm. The indictment charged that Mr.
Schafer “possessed one or more firearms in and
affecting interstate or foreign commerce after having
previously been convicted of a crime punishable by a term of
imprisonment of more than one year, and the defendant did so
knowingly” in violation of 18 U.S.C. § 922(g)(1).
ECF 16. Mr. Schafer moved to dismiss the indictment based on
Rehaif v. United States, 139 S.Ct. 2191 (2019). With
due regard and appreciation for the parties' briefing,
including Mr. Schafer's reply brief as filed instanter,
the court denies the motion to dismiss.
indictment must be “a plain, concise, and definite
written statement of the essential facts constituting the
offense charged.” Fed. R. Crim. P. 7(c)(1). A defendant
may challenge an indictment for failure to charge an offense,
United States v. Mosley, 786 F.2d 1330, 1334 (7th
Cir. 1986), though a motion to dismiss an indictment is not
“a means of testing the strength or weakness of the
government's case.” United States v.
Moore, 563 F.3d 583, 586 (7th Cir. 2009) (quoting
United States v. Todd, 446 F.3d 1062, 1067 (10th
Cir. 2006)). That is for trial; before then, an indictment
performs three functions: (1) it states the elements of the
offense, (2) it informs the defendant of the charge's
nature so he can prepare a defense, and (3) it enables the
defendant to plead the judgment as a bar to later prosecution
for the same offense. United States v. Hausmann, 345
F.3d 952, 955 (7th Cir. 2003); United States v.
McComb, 744 F.2d 555, 562 (7th Cir. 1984). In the end,
the indictment must conform to “minimal constitutional
standards.” Hausmann, 345 F.3d at 955.
Schafer seeks to apply the Rehaif interpretation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2) to his
indictment. Before Rehaif, this circuit had
held that criminal liability under this statute required only
a general intent. See United States v. Lane, 267
F.3d 715, 720 (7th Cir. 2001). Under that standard, the
government was required to prove that the defendant knew
“that the object he possessed was a gun, ” but
seemingly not that the defendant also knew that he was a
felon. Id. Rehaif clarified that the government must
also prove that the defendant knew he was in a prohibited
status-in that case, an alien unlawfully in the United
States, and here by extension an individual previously
convicted of a crime punishable for over a year.
Rehaif, 139 S.Ct. at 2196.
Schafer challenges the indictment arguing the government
failed to allege that he knew he was a felon. See
Rehaif, 139 S.Ct. at 2194. Mr. Schafer does not dispute
that the other elements of the crime are adequately alleged
in the indictment. Thus the issue before the court is narrow:
whether the government must strictly allege in an indictment
that a defendant knew he was a felon for it to survive a
motion to dismiss.
indictment conformed constitutionally to the requisite
standards. The indictment states as follows:
Edward Schafer, defendant herein, possessed one or more
firearms in and affecting interstate or foreign commerce
after having previously been convicted of a crime punishable
by a term of imprisonment of more than one year, and the
defendant did so knowingly. . . . All in violation of Title
18, United States Code, Section 922(g)(1).
So stated, the indictment fulfills the three functions an
indictment must-informing Mr. Schafer of the nature of the
charge, enabling him to defend against a second prosecution,
and stating the crime's elements. See Hausmann,
345 F.3d at 955.
construing an indictment, the court must look to the
indictment as a whole and refrain from reading it in a
“hypertechnical manner.” United States v.
Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985).
“Even if an essential averment in an indictment is
faulty in form, if it may by fair construction be found
within the text, it is sufficient.” Id.
(quoting United States v. Anderson, 532 F.2d 1218,
1222 (9th Cir. 1976), cert. denied, 429 U.S. 839).
In charging an offense, an indictment may usually track the
statute's words. United States v. Smith, 230
F.3d 300, 305 (7th Cir. 2000). This indictment effectively
does just that.
“[w]hen several words are followed by a clause [that]
is applicable as much to the first and other words as to the
last, the natural construction of the language demands that
the clause be read as applicable to all.” Paroline
v. United States, 572 U.S. 434, 447 (2014) (quoting
Porto Rico Railway, Light & Power Co. v. Mor,
253 U.S. 345, 348 (1920)). A fair reading of the indictment
reveals that “knowingly” applies to the operative
(non-jurisdictional) elements of the charge that precede it.
Indeed, the word “knowingly” appears in a
separate clause that semantically gives it that very effect.
A strict reading of “knowingly” to apply only to
certain but not other operative elements is the exact type of
“hypertechnical” reading the law seeks to avoid.
See Gironda, 758 F.2d at 1209.
course, Mr. Schafer raises the concern in reply that such a
construction would necessarily apply a “knowing”
scienter to the interstate commerce element (ECF 35-1), yet
that is not really so. Indeed, Rehaif made no such
interpretative leap, and it was construing a statute, not
just an indictment. See Rehaif, 139 S.Ct. at
2196-97. The United States Supreme Court made no
assumption that the word “knowingly” that
preceded the statute somehow applied to the jurisdictional
element just as this court will not assume that the word
“knowingly” expressed at the charge's end
must necessarily apply to that same jurisdictional element to
reach its proper construction. See Id. If
“knowingly” can be fairly applied throughout the
statute without tripping on the jurisdictional element, it
can be fairly read the same for this indictment.
question, the indictment puts Mr. Schafer on notice of the
charge against him with its language and reference to the
specific statute that the government alleges Mr. Schafer
violated. The government is not required to write out every
explicit element of a crime in an indictment. Instead, an
indictment is adequate so long as “each element [is]
present in context.” United States v. Smith,
223 F.3d 554, 571 (7th Cir. 2000). An “indictment is
constitutionally sufficient if it alleges the appropriate
section of the United States Code, even if it does not allege
the express element required.” United States v.
Westmoreland, 240 F.3d 618, 633 (7th Cir. 2001) ...