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Commercial Law Regulations White Collar Crime

Talk Is Cheap: The Misuse of ‘Speaking’ Indictments

In white collar fraud, public corruption and other high-profile cases, DOJ prosecutors sometimes go well beyond the“notice” principle and draft thick indictments laying out in conclusory language the regulatory schema surrounding the challenged conduct; public policy rationales for the laws and regulation said to be violated; alleged motives of defendants; and the government’s inferences from alleged facts (“connecting the dots”) — all under section headings or captions advocating the government’s view.

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The term “speaking indictment” refers to indictments that go beyond the Fed.R.Crim.P. 7(c)(1) requirement of a “plain, concise and definite written statement of the essential facts constituting the offense charged” — i.e., an indictment that does more than simply track the statutory charging language and state the who, what, when, where and the elements of the crime, the manner and means, and, for Section 371 conspiracies, overt acts. The use of speaking indictments is often justified as providing notice to defendants of allegations the absence of which might otherwise provoke pretrial motions to dismiss or for a bill of particulars. See Department of Justice (DOJ) Criminal Resource Manual at § 214 (“The [indictment] drafter must afford the defendant … a document … that is sufficiently descriptive to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment, if appropriate.”) (emphasis added). Indeed, prosecutors and courts often cite to “speaking indictments” as a reason to deny a defense motion for a bill of particulars. See, e.g., United States v. Schaefer, 2016 U.S. Dist. LEXIS 51897 *9-12 (N.D.Ind. April 19, 2016).

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