Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Business Crimes BulletinCommercial LawFeaturesRegulationWhite Collar Crime

Talk Is Cheap: The Misuse of 'Speaking' Indictments

By Ronald H. Levine

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).

However, in white collar fraud, public corruption and other high-profile cases, DOJ prosecutors sometimes go well beyond this “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. The recent securities and FDA fraud indictment of Acclarent executives is a good example. United States v. Facteau, 15 CR 10076 (D.Ma. indictment filed April 8, 2015); see also, e.g., United States v. Mahaffy, 446 F. Supp. 2d 115, 118-19 (E.D.N.Y. 2006) (underlined and capitalized indictment captions referring to front-running, bribery, cover-up and lying to investigators); United States v. Sattar, 314 F. Supp. 2d 279, 320-21 (S.D.N.Y. 2004) (Rule 7 does not prohibit “background” section consisting of 27 introductory paragraphs not a part of any count). Sometimes the indictment even contains a table of contents.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

Coverage Issues Stemming from Dry Cleaner Contamination Suits Image

In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

Blockchain Domains: New Developments for Brand Owners Image

Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.