*1 America, STATES of UNITED

Plaintiff-Appellee, HOOKER, II, Murray

Defendant-Appellant.

No. 87-5026. Appeals, Court of

Fourth Circuit.

Argued Dec. 1987.

Decided March 1988. *2 verdict, Hooker Following jury

counts. judgment arrest on motion his renewed denied this motion III Count deficiency been if there had a because Richmond, Marstiller, Philip Steward III, was no in there Count in Miller, Litten, and Litten, Sipe (J. Va., Jay the defendant. prejudice Gaden, Rich- Va., J. Harrisonburg, Barbara a initially heard before was case The Hazel, Southard, mond, Va., Jeffrey C. filing of an Before this Court. panel of P.C., Hanes, & Thomas, Fiske, Beckhorn herein, was consolidated the case opinion brief), Va., Milton Gordon Richmond, on cases the related hearing banc with for en N.C., Todd Clark Widenhouse, Jr., Raleigh, Pupo, and of defendant-appellant. Concormon, for Govantes, because Justice, Criscitelli, Dept, of Sara Bradkin dispositive issue thought it was Otis, D.C., Graham Washington, William There was cases. in the the same Alexandria, Va., (Samuel Atty., U.S. Asst. of the cases facts difference some N.C., Henry Raleigh, Atty., Currin, T. U.S. file better considered it has been and Va., Alexandria, on Hudson, Atty., E. separately. cases en decisions banc brief), for plaintiff-appellee. therefore, is, confined opinion This Pupo and opinion case and Hooker WINTER, Judge, and Chief Before simultaneously. being filed Govantes HALL, WIDENER, RUSSELL, SPROUSE, MURNAGHAN, PHILLIPS, and CHAPMAN,

ERVIN, WILKINSON I. sitting en Judges, WILKINS, Circuit appeal is on wheth- primary question The banc. of an to include er failure Judge: RUSSELL, Circuit DONALD a RICO commerce on interstate effect the count of requires the dismissal on indicted appellant Hooker The on that conviction the voidance and to defraud (I) conspiracy charges: three III of the agree that Count charge. We of 18 U.S.C. in violation the United States and that fatally defective indictment was to distribute (1982); (II) conspiracy § be reversed. must thereon the conviction 841 and 21 U.S.C. of §§ in violation cocaine II, I how- and on Counts convictions to commit (III) conspiracy (1982); and ever, are affirmed. of 18 U.S.C. violation RICO trial 1962(c) (1982). weeks Two § for Count to dismiss moved Hooker II. of the sub- one element to include failure of facts of statement Any extensive offense, namely, that business stantive decision unnecessary to the case is com- this on interstate enterprise an effect presented for lawof specific issues the mo- judge found The district merce. appellant It is sufficient review. the close untimely. At tion be attorney II, anwas Murray Hooker who J. again raised the Hooker case Common- practice law licensed The district of the indictment. sufficiency of his clients Virginia, two had as judgment wealth for motion denied the judge Wayne Tha- Donald T. Miller Michael appellant should saying that the acquittal, ostensibly in the gard, whom both requesting issue addressed have actually but were business construction of the case trial particulars. bill distribu- engaged in the drug traffickers on all three guilty resulted a verdict up corpora- set Hooker of cocaine. on the tion years of two counts, sentences Thagard, trusts Miller count, count, tions on the second years two first income assets allegedly to their conceal years four consecutively, and served to be activity, an activ- illegal arising their out of concurrent- served count the third laundering. money popularly ity known first two on the sentences ly with are, first, actions, in- These these Hooker was criteria in- Because of dicted. dictment “contains the elements of the charged, offense intended to be ‘and suf- III. ficiently apprises the defendant what ” prepared meet,’ and, he must be III of that indictment “ secondly, ‘in 1962(c).1 pro- the case other conspiracy to violate 18 U.S.C. *3 ceedings against are taken him for a The issue in this case is whether the failure similar of Count III of the indictment to include record accuracy shows with to what one essential element offense extent he charged may plead acquittal this count a former count invalidated or convic- ” (citations omitted) required its tion.’ indictment and dismis alleged sal. The fatal omission was the declared, contrary This same case to the enterprise charge failure to that the had an below, ruling particulars that “a bill of effect on interstate commerce. There is no cannot save invalid indictment.” Rus- dispute requirement that this of “an effect sell, 770, 369 U.S. at 82 S.Ct. at 1050. on interstate commerce” is an essential ele Moreover, again contrary ruling be- ment of the offense established low, a motion that an fails RICO statute. As the court United charge may any an offense be made at Cir.1983), Sinito, (6th 723 F.2d 1250 States 12(b). time verdict. Fed.R.Crim.P. 817, 469 105 rt. S.Ct. ce appellant’s It is the contention that the 86, (1984), it, 83 33 summarized L.Ed.2d (that fifth element of a RICO five elements that the Govern there are enterprise business affected interstate com- prove for a RICO ment must substantive merce) was an essential element of this (1) enterprise; of an offense: existence crime, making federal thus the indictment (2) the defendant’s association with the en mandating insufficient on its face and vaca- (3) participation terprise; the defendant’s judgment tion of of convictionon this count (4) pat enterprise; in the affairs of the for failure to state a RICO offense. The (5) racketeering activity; and tern of concedes, must, government as it that this foreign enterprise’s effect on interstate or element of the RICO offense is not ex- commerce. See also United States v. Diec III, pressly included Count but it con- idue, 535, (5th Cir.1979), 536 tends that the indictment is nonetheless 946, 1345, 100 63 445 U.S. S.Ct. any sufficient to state an offense for 781, 912, 1842, L.Ed.2d 446 U.S. four reasons. address those reasons We III of this 64 L.Ed.2d 266 seriatim. largely paraphrased the conduct required section for a RICO offense with A. 1962(c) failed that the enter any effect on com prise had interstate government’s primary posi is the It state, directly through or merce or to either that, despite the include in tion failure to reference, incorporation by any facts that the indictment that defendant’s enterprise show that the affected would commerce, conduct involved interstate such interstate commerce. omission cured the citation of sec 1962(c) tion in the indictment. The difficul States, In Russell v. 369 U.S. that, testing ty argument 749, 763-64, S.Ct. indictment, sufficiency of an “it is the (1962), the Court stated two of the pleading, of facts in the rather sufficiency in- statement criteria which the of an statutory citation that is control Fifth Amend- than the dictment under the and Sixth Wuco, 535 ling....” may ments be measured: 1962(c), indirectly, ipate, directly provides: or in the conduct 1. 18 U.S.C. through pattern enterprise’s such affairs any person employed for It shall be unlawful racketeering activity any enterprise engaged of unlawful or collection or associated with in, affect, or the activities of which debt. commerce, foreign partic- to conduct or or question explicitly statutes though the 1200, 1202 n. F.2d falsity, if this knowledge of the require L.Ed. denied, deficient state- enough cure a also, see (1976); 2d 586 would ment, no indictment almost S.Ct. then Hutcheson, attack; is common for it (1941). And has be vulnerable 464, 85 L.Ed. 788 the statute to cite indictments practice rule in this Circuit. the consistent long been Parker, speaking been violated. to have ago Judge century aHalf court, “It is ele put it: for a unanimous rule in this case accordingly apply the We crime ingredient of every mentary that for failure count defective find the bill, refer general charged in the must be of the of- ingredient allege an essential being of the statute provisions ence to commerce”). (“interstate fense States, v. United Hale insufficient.” though argues that our government re We have decision variance conclusion *4 subsequent rule in this reaffirmed peatedly Roberts, 198 v. 296 F.2d in United States Hayes, 775 F.2d v. States cases. United denied, 369 867, cert. Cir.1961), U.S. (4th v. States Cir.1985); United (4th 1279, 1282 (1962). that 1033, 85 In 8 L.Ed.2d 82 S.Ct. Cir.1975), (4th 460, 461 Pomponio, 517 F.2d in the any the case omission 448, 1015, 46 423 U.S. cert. of the crime ingredient of an indictment holding Moreover, (1975). this L.Ed.2d 386 on only in a attack charged arose collateral in at adopted the rule in with is accord asserted for the judgment conviction the Kurka, 818 v. eight circuits. U.S. least proceeding. in 2255 appeal first time on Cir.1987); United (9th 1427, 1430-31 F.2d objection had not raised the The defendant 239, (1st McLennan, 242 F.2d 672 v. States from his conviction. appeal on at trial or Jones, F.2d v. 647 Cir.1982); United States 2255 he filed his not raise it when He did Cir.1981), (6th 696, 699-700 appeal of dis only on the It was motion. 214 399, 898, by the district of his 2255 motion missal Camp, 541 F.2d v. States (1981); United the defect that he asserted court v. Cir.1976); (8th 739, 740 was the issue appeal, On that indictment. 1, Cir.1975); 3 (7th Wabaunsee, 528 F.2d the that late date conviction at whether 1002, Berlin, 472 F.2d v. States United judg after “open collateral attack” was denied, (2d 1007 2255 ment, from a denial of his appeal on (1973); 3007, L.Ed.2d 1001 949, 93 S.Ct. 37 con held Roberts in that the motion. We 1014, Beard, 414 F.2d v. States United not, saying the contention was that viction v. United Cir.1969); Robinson (3d 1017 proceed raised properly not be “could 911, 912 States, 263 ing under 2255.” majori Further, in the vast the rule this is Roberts ruling in was accord Huntley, This courts, State v. state ty of the Hagner ruling Supreme Court partic the (Me.1984), the 859, 863-64 A.2d 473 States, 427, 429, 433 285 v. United in all the interesting, the rule is ularly it did not assert single excep (1932). the There defendant with a Circuit this states of in- State, 155, A.2d failed to 433 the indictment 291 Md. his claim that Ayre v. tion. Cook, N.C. v. 272 essential element State (1981); clude an 1150, 1158 v. State (1968); a motion 820, and then until after verdict S.E.2d sustaining dis- Sossamon, In judgment. 130 S.E.2d 259 N.C. arrest of Commonwealth, Su- objection, v. (1963); related Wilder missal of the contra, (1976); “upon the record said that preme 225 S.E.2d Court Va. Crenshaw, deciding 266 S.E. us, S.C. that without v. State rule, open to some not have been Were indictment 2d would stage challenge stated be that at an earlier would form of the result Berlin, supra: opinion after verdict case, we are that States made here the attack is not vulnerable fact cured deficiency The is objection made upon it.” When after count statute cited that each somewhat differ- verdict, the decisions are Al- alleged violated. to have appellant is The Wabaunsee, false su- statements. ent. See United is made the false statements rule decisions the that Stefan some 2. Under pra, made he late when failed “knowingly,” is too but objection stated, where the verdict, in other cases “willingly.” The court acted also after objection verdict, after specifically is made refers the indictment “[W]hen validity reviewed deficiency is to be on which to the statute is not liberal standard a more under based, statutory language may be used In Finn absolutely invalid. necessarily defendant re- to determine States, 306-07 256 F.2d Stefan, notice.” adequate ceived followed Cir.1956),2 to have we seem stated, how- also at 1101-02. delayed plaintiff has If the latter view. not re- ever, if the count habeas objection until his 2255 raising the statute, “knowingly” and ferred objection too action, find the Roberts would requirements rea mens “willingly” here, when, event, late. analytical distinctions slight such and at trial both before objection is made to inform alone was sufficient either term Hale, Hayes verdict, the rule trial before charge against him. the defendant finding the Pomponio therefore, major part of the Stefan, Circuit. in this invalid followed present. In the element was mens rea how suggested, has government contrast, bar, by an element case at be made ever, should some distinction But, the extent entirety. missing in its the reference where the situation between rely on a mere may said that Stefan *5 in the is statute embedded applicable to indictment statutory reference the here, indictment, where as and body of the the offense element of supply an essential indict of the at the end appears either implicit precedent contrary to charged, it is marginal reference. Kaneshi byor ment in a circuit, stated law as well as in this 1266, 1269 States, F.2d ro v. United which majority of Circuits the substantial 992, denied, 404 Cir.1971), U.S. (9th cert. explicitly and we the issue have considered (1971),is cited 537, 92 S.Ct. ruling to that effect reject the Stefan. of this supportive as government by the fact significance the find Nor do we note the differ case did distinction. That rather alleges conspiracy a that Count it must be but situations ence the two Although an crime. substantive than a inmade comment was this emphasized that conspiracy a object of is the objection to the sufficien case where the a the indictment on need not be delineated raised was first the indictment cy of as a substan- particularity It conviction. same judgment of with the from the appeal States, offense, Wong this than Tai v. United analogous to case any more tive is not noted, L.Ed. 545 since, was, we have often 47 S.Ct. Roberts objec the state- applies case raised his (1927), this admonition defendant in this the during trial. indict- and the trial “flesh out” both before of fact that tion ments of the of- the basic elements ment—not F.2d 1093 Stefan, 784 States, 406 — Nelson United fense itself. U.S. —, — con- Wong Tai F.2d 1136 193, 93 L.Ed.2d 107 S.Ct. impart va- language which would tains no (1986), —, 93 L.Ed.2d 706 an alle- omits indictment which lidity is not government also relies the on which crime of gation of an element the case defend point. In that the actually on any time suggest at does it nor of charged with a violation ant was statute mere citation opinion that a it a crime makes which U.S.C. will sat- issues the under certain willingly” make “knowingly and verdict, our task made after al of a motion Finn, we 2. said: necessary facts only ‘the to determine construed are informations “Indictments and form, by fair construction any or a before, appear in verdict than liberally after more every informa- terms’ found within can be indulged support is then intendment reviewing deni- tion.” sufficiency” "in requirement require- one of isfy the indictment dictment satisfies those simultaneously satisfy but a clear statement the elements ments does not contain charged. the other. In Russell the con- of the offense

tained the of the offense this elements by apprise itself was insufficient to B. charge defendant of the nature so he argument government’s second The prepare present In the could defense. i.e., is one the court below: advanced case, acquired ac- defendant somehow by surprise. not taken that Hooker was notice his tual nature of offense. government if no contends even But if we were to assume this imputed statutory tice be from the cannot indictment, (an notice emanated from citation, Hooker must have actual no justified assumption not under the authori- from the indictment itself because he tice opinion) in our still left ties we would be able, trial, to move two weeks with a document that did not contain and to iden for dismissal the indictment part of one element of the tify missing element. particularity satisfy thus did not the Fifth Amendment however, accept argument, Were we to requirement of- all elements encourage merely defendants we would fense have been considered and found questionable indictments defer their grand jury. See Stirone motions after trial. This would until States, 4 L.Ed. system judicial detrimental our (1960). Therefore, 2d reject we promote unnecessary trials. It also would government’s position on this issue. penalize objec would defendants with valid question if is first tions because raised C. appeal, sufficiency an indictment’s if argument tested a stricter standard than third question proceedings first in the court can look was raised indictment as Pheaster, 544 sufficiency below. United States v. whole determine the alone, (9th Cir.1976), that, standing may be insuffi- *6 Although 51 97 S.Ct. L.Ed.2d 546 cient. neither of other the Wabaunsee, (1977); charges required in 2. We are this case an effect on hold, effect, unwilling pretrial in to that a interstate commerce as an ele- essential ment, II, charging insufficiency predi- the of the E motion U of Count which was a self-defeating merely indictment can be be cate included an that Miller, conspiracy cause the motion could not have been Michael a member of the cocaine, brought Virgi- to without actual notice of the miss distribute traveled from purchase ing attempt element. nia to Florida in an to government cocaine. The contends accept sugges- Even if to we were to this is sufficient show that the business however, tion, only half of the notice enterprise had an effect on com- In question. Hamling both Russell and merce. the Court stated that a sufficient indict- government argument the In this ment must contain the elements of of- the relies apprise Esposito, on fense and the defendant United States v. (7th Cir.1985), charge. requirement

nature of the The (1986). the notice derives from defendant’s Sixth 106 S.Ct. L.Ed.2d 302 charged right Amendment to be informed that case the defendant was accusation. The seven of extortion in violation of the nature and cause counts Act, inclusion of all also derives from Hobbs and four counts of travel elements Amendment, requires the Fifth which interstate commerce with intent commit grand jury Travel Act. have considered and found extortion violation present. most cases The Travel Act counts failed to all elements element—namely, conjunctive requirements insepa- third that the defendant these are Russell, illegal committed an act after the interstate Infrequently, rable. the in- incorporate fails to challenged count nonetheless found The court travel. by reference. in- other “when the counts because indictment sufficient gave read as a whole dictment D. charged they defendants notice on later attempts to extort ... dates argument, final also The as, than, the dates of as the same below, as well adopted the court is that Esposito, 771 F.2d travel.” the interstate deficiency in the was harmless at 288. charge to the it was cured because jury. jurors were instructed that in Wander, 601 F.2d In United States conspiracy order convict on RICO however, held (3d the court count, they must find that the business because was insufficient that an indictment enterprise an effect on interstate com- element allege that same third it failed to government merce. The relies unlawful act a Travel Act violation—an Mechanik, 475 U.S. States v. Although interstate travel. after the (1986), in which the 89 L.Ed.2d 50 count, which case another allegedly defi- harmless an Court found Act, includ conspiracy to violate the Travel grand jury produced by a cient indictment acts missing element in its overt ed investigation in violation of Fed. conducted section, that ele refused read the court 6(d). held that R.Crim.P. The Court there Travel Act count because ment into the jury verdict ensured both the actual incorporate it expressly did probable cause for the there had been v. Giron by reference. See United States jury’s charge and grand (court (7th Cir.1985) must da, F.2d 1201 beyond doubt. The was true a reasonable independent of indictment read each count petit that because concluded counts) ly of all other cause, probable jury’s ratification of not warrant- costs of retrial were societal here. applies Count The same situation government argues that ed. The incorpo includes no of Hooker’s indictment analogous present case is Mechanik be- allegations by reference ration petit jury actually considered the cause the particularly This is a I II. Counts missing found that it was sat- element and II does striking omission because Count isfied. allegations reference the incorporate by I, grand jury knew showing that the begs ques- government’s position if it so incorporate by analysis reference in Me- how error tion. The harmless 52(a), chose. derives from Fed.R.Crim.P. chanik that do not applies only to errors contrary directly Esposito also gives rights. *7 affect substantial Mechanik supra, this precedent. Hayes, our own errors in guidance us on how deal approval and dis court cited Wander do not substantial affect indictments it Act indictment because missed a Travel is, regard, in consonant rights element incorporate missing failed to only a Because it concerned with Russell. count, by reference the other procedural of a fairly violation technical Act. the Travel conspiracy to violate rule, however, help us deter- does not supra, dis in this court Pomponio, And sub- affects a mine the error here charging interstate missed an indictment right. stantial de transportation of counterfeit securities of a crime— essential element missing An that the element spite the fact right affects substantial contained one that apparently was fraudulent intent —is necessary specification ... “one whose a different in an earlier count behav illegality of the very to establish the There very same statute. violation jurisdiction.” sup thus the court’s fore, not ior and in this circuit does the law 853, 859 Cina, v. miss United States government’s position port the ing element can be read into an indictment (1983). Al- 481, 78 L.Ed.2d 679 when the count—at least not from another jury satisfy verdict can petit nor a here does not tions missing element though the right behavior, the Fifth Amendment the fact illegal it is none- after describe overt charges by grand found upon tried to be in a federal theless essential Stirone, 361 U.S. at 80 S.Ct. at jurisdic- jury. court’s because it establishes 274; Camp, 541 F.2d Stirone, at tion. See (6th Cir.1976). (Hobbs must Act indictment at 273 commerce in order effect on Mechanik, further note that We jurisdiction of federal show grand jury’s procedural error did not sur- Moore, 185 F.2d crime); of trial. Given until the second week face Cir.1950) (indictment for viola- stage by trial the advanced Act does not Standards tion of Fair Labor date, analysis appro- error a harmless defend- if it does not show an offense state case, contrast, by present priate. commerce engaged in interstate ants were first moved to dismiss Count Hooker Act); coverage of see within or otherwise trial. The court fully two weeks before Diecidue, (identifying 603 F.2d at 546 also motion, erroneously and the denied commerce as essential on interstate effect attempt get a su- government made no offense). RICO element of In such a situation perseding indictment. apply a more liberal standard we must missing element in the Because Pheaster, movant, see 544 F.2d favor essential, complete its present case was 361; Wabaunsee, 528 F.2d at and a at defect. III is a fatal from Count absence analysis inappropriate. harmless error elements of a RICO The first four (O’Connor, Mechanik, 106 at 945 S.Ct. See III, do not they alleged in Count as were Russell, J., concurring judgment); crime, nor do any federal themselves state 763-64, 1046. 369 U.S. at 82 S.Ct. at jury all grand found they show that The court federal crime. elements of E. try Hooker jurisdiction to un

thus had no indictment, and its der that count government could It is that the obvious judgment must vacated. Cf. superseding indict- easily have obtained a Roberts, (similar argu supra, States v. delay no in the sched- ment with little or weight in habeas cor may ment have less to do so resulted in uled trial. Its failure jurisdiction of court is pus petition because of resources an enormous waste open limited attack collateral to more court, government, and the defendant. denied, 369 proceedings), cert. Regrettably, the first occasion 1033, 8 L.Ed.2d 85 S.Ct. govern- chastise the we have had reason to practices drafting indict- ment for its lax prejudice to the absence ments; regrettably, unlikely it is more does not in a traditional sense defendant sentiments, expressed as be the last. Our substantive, jurisdictional defect in cure a Roberts, perti- are as 269 F.2d Smith, an indictment. United States today they twenty-six years nent 1239, 1242(10th Unlike ago: Mechanik, of a the defect the situation understanding beyond our that a missing element can It is completely essential Attorney would under- jury instruction cured a later States] not be [United hav- jury take draw an indictment without nothing petit for a there is because *8 case, defines ing in him the statute which purposes of this the before ratify. For offense, or, having before the the statute solely jurisdiction and dictment relates to to omit alle- him could be so careless as petit jury A verdict can do pretrial notice. gations meeting statutory definition grand jury the than that the no more show the essential elements of given adequate of one of the have the defendant could might A indictment This cannot crime. defective notice had it chosen to do so. office, but a well-ordered failing give notice come from harm of to that undo the in offices of carelessness on the inexcusable timely, jurisdiction nor can it confer suggested Attorneys is instruc- none existed. Neither States] court where [United adequate There is evidence case. is ment’s court which this frequency among the con- conversations possible tapes of questions of to consider required support jury’s of verdicts. arising out spirators to defendants prejudice the court’s Therefore, any indictments. related to defects errors unexplainable little of can but of Tha- save on cross-examination carelessness limitation Such Attorney knowledge gambling of ac- gard States] the time his about [United indictments, its but of by Tha- preparation tivities, in the the revisionist statement ex- needless requires the consequence disposal of his about gard after trial effort time and much of penditure produce assets, government’s failure and counsel him, and their by defendants to Tha- given examination polygraph situa- Here, in most by the courts. police, and gard by state by an avoided tions, could be waste much Thagard’s the details of provide failure care. A of reasonable exercise initial would be agreement state plea would to care dedicated few moments harmless, Hooker’s support not and would controversy. entirely this have avoided Therefore, we trial. for new demand a before questions are When these errors fur- these not examine need Attorney or Court, the States] [United ther. invariably argument at oral his Assistant relates error remaining of in the personal involvement disclaims grant new trial refusal to a court’s indict- defective of preparation of “new evidence” production after the Attorney, ... States] ment. [United Eck, by Francis affidavit the form an for the' work- however, responsible is Eck partner. At trial law Hooker’s former and proper It is office. his product of that stated and he a defense witness juniors his give him for desirable re- with Hooker not discussed he had drafting in- training experience deposits for bank requirements porting provide duty to dictments, his it is but $10,000; after by affidavit than greater su- guidance, counsel them with conversa- he had trial Eck stated to insure necessary are pervision subject. Even Hooker about tion with quality of a finished work their light in the “new evidence” if view this we expect right to has a public Hooker, indisputably most favorable by a sense required should be and which justi- point and does relates to a minor immediate pride. If the professional fy a new trial. is the a defective cause of jun- some carelessness inexperience or V.

ior-assistant, evidences the defect Attorney States] failure the [United conviction summary, we vacate the the busi- conduct organize and properly the forfei- III and on Count sentence office. ness his based accounts bank ture of Hooker’s deficiency the facial In this case On remand conviction. because more intolerable III without to dismiss instructed notice actual government had reindict government to prejudice to the trial, available and had well defect chooses, including if it reprosecute Hooker curing that mechanism frequently-used ac- bank of Hooker’s seeking forfeiture indictment. superseding way of a defect We af- at 1283. Hayes, counts. I and II. on Counts firm the convictions IV. by the court alleges errors Hooker also concurring Judge, WILKINS, Circuit trial. a fair deprived him of he claims part: dissenting in part and Donald errors relate of these Most Hooker’s the affirmance I concur A cooperating witness. Wayne Thagard, II, I do not I and on Counts convictions us convinces the record review careful *9 of the indictment III agree that Count although sub- testimony, Thagard’s a model Although not fatally govern- defective. stantial, critical to was 1234 (1962). generally sufficient for an 240 It is constitutionally suffi-

indictment, it was allege an defi- any possible significantly, cient. And statute, “fully, if those words error and words of III harmless ciency in Count Therefore, any uncer directly expressly, and without prejudice. no Hooker suffered ambiguity, forth all the ele tainty of the set from reversal or respectfully I dissent necessary reasons the offense.” III for the to constitute Count ments conviction on Carll, 611, 612, v. United States discussed more 105 U.S. and briefly stated below Russell, quoted companion (1882), case 1135 fully my 26 L.Ed. dissent Pupo, 1235, v. 765, United States 841 F.2d Specifi at 1047. 82 S.Ct. 369 U.S. following language cally, 86-5151. No. an indictment charges adequately an ef 1962 of section I. commerce a RICO fect on interstate may simply re conspiracy; an indictment III charged in Count with Hooker was specificity. further cite this term without 1962(c) 18 U.S.C.A. conspiracy to violate Diecidue, 603 F.2d 535, v. United States 1962(c) pro- 1984) (RICO). (West Section denied, cert. Cir.1979), (5th 445 U.S. 547 vides that: 1345, 781, 946, 446 100 63 L.Ed.2d S.Ct. any person em- for It be unlawful shall 1842, 912, L.Ed.2d 266 U.S. 100 S.Ct. 64 any enter- ployed by associated or (1980). in, prise engaged or activities foreign affect, com- interstate or premises, I find no rea- which In of these view directly participate, merce, or to conduct recitation of distinction between sonable of such en- in the conduct indirectly, “affecting com-' terminology or interstate through pattern terprise’s affairs meree,” specific allegation of viola- and the of un- racketeering activity or collection 1962(c) contains those tion of section debt. understanding lawful A defendant’s words. by repetition of this is not aided the offense the circumstances set forth The indictment alleg- language the statute statutory when charged alleged offense Of edly is cited in the indictment. violated “enterprise” that of an part Hooker was statute, course, reci- or even 18, citation States Title United conspired “to violate language, not an statutory tation of Code, 1962(c),” it did not Section adequate allegation every element of inter- enterprise affected explicitly that the require greater for some elements majority holds state commerce. alleged conduct description or “affecting detail omission of the words fatally de- defendant. commerce” rendered view, applica- my citation fective. requi- alleged this sufficiently statute

ble B. event, undeni- Hooker element. site adequate ably given a fair trial Following prior from this cir decisions instructions. jury others, against proper notice and cuit the indictment sufficiently alleged the offense Hooker A. the statute. See United charged citing Duncan, Cir.), (4th and States v. 839 598 guarantees of fifth To meet the denied, 871, 100 cert. (1) 62 S.Ct. amendments, must an indictment sixth Stefan, (1979); offense L.Ed.2d 96 contain the elements — denied, cert. (11th Cir.), 1093 784 F.2d fairly inform a defendant —, 125 93 L.Ed.2d him, (2) him against U.S. enable Arteaga-Limones, States (1986); of fu- jeopardy defense plead double Cir.), 429 1183 529 F.2d the same offense. prosecutions for ture States, L.Ed.2d 286 Hamling v. United 50 U.S. Johnson, (1976); 2887, 2907, 590 L.Ed.2d S.Ct. States, U.S. v. United Russell (1974); 25 L.Ed.2d 1038, 1046, 749, 763-64, S.Ct. S.Ct. *10 pro- grand jury was no majority are indication by the contrast, cited cases 402(i) and the indict- copy section of vided unpersuasive. distinguishable or either stat- to the definitional ment did not refer ute, that use of the term of court held II. alleged essential ele- sufficiently art he inad- contend did not Hooker Id. at 112. commerce. ment of interstate that his charge or of the notice equate Silverman, inter- If, jurisdictional as in of by the hampered absence defense was alleged could be element state commerce enterprise express in a statute term of art defined by use of a was Nor commerce.” interstate “affected grand nor even jury supplied have that Hooker would indictment, clearly an assertion could be there cited in jeopardy charging as plead double a violation alleged by specifically unable been jurisdic- for the 1962 which contains prosecution of section future defense commerce.” language “interstate tional prej- a total lack Despite same offense. Count holds that udice, majority indict- for an Certainly, preferable it is stressing form over defective, fatally was each essential specify in' detail ment af- be conviction should plate element, including This of boiler substance. recitation deficiency in assuming firmed, applicable statute. from the taken language But, preferred a fair III, clearly received instances where Hooker followed, should reversal is not approach trial. in the total automatically mandated not be recent Su the rationale Applying to a defendant any prejudice absence v. in United States preme Court decision fair trial. afforded a concede was whom all 66, 70, 106 S.Ct. Mechanik, 475 U.S. (1986), guilty verdict L.Ed.2d HALL and Judges K.K. Circuit there was shows that petit jury to be shown have asked WILKINSON charge Hooker with probable cause to opinion. separate joining convicted, and he was of which proceeding grand jury “any error was charging decision with the

connected a reasonable doubt.” beyond

harmless error that the harmless majority maintains America, UNITED applied STATES cannot analysis of Mechanik Plaintiff-Appellee jurisdiction had no court here because the failed count which try Hooker on the effect on interstate allege an expressly PUPO, Alfonso Adalberto been would have Jurisdiction commerce. Defendant-Appellant. did not lacking only if the America, UNITED STATES allege by through failure crime a federal Plaintiff-Appellee, connection with means a some Silverman, commerce. de (2d GOVANTES, George L.Ed. nied, Defendant-Appellant. grounds, on other (1971), 2d modified 86-5151, Nos. 86-5152. Silverman, (2d F.2d 1198 Appeals, Court embezzle defendant was Fourth Circuit. violation of union funds ment juris Argued Dec. 1987. 501(c). held that the C. § a nexus with interstate dictional element Decided March 1988. by use sufficiently commerce No. 86-5152 Rehearing Denied organization” “labor of art of the term 22, 1988. April 402(i) as “a in 29 U.S.C. is defined industry engaged in an organization labor Although there affecting commerce.”