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UNITED STATES v. ROBERTS

December 29, 1966

UNITED STATES of America,
v.
William Daniel ROBERTS, Defendant



The opinion of the court was delivered by: TENNEY

MEMORANDUM

 TENNEY, District Judge.

 The defendant in the within action seeks an order of this Court (1) dismissing each count of the indictment; (2) alternatively, requiring the Government to file a bill of particulars; and (3) requiring the Government to furnish the defendant with a copy of his testimony before the Grand Jury. On November 10, 1966, an eight-count indictment was filed charging defendant, in essence, with the receipt of gratuities for the performance of his official duties in violation of 18 U.S.C. § 201(c), (g) (1964). The nature of the alleged offense was that defendant accepted gifts for enlisting applicants into the United States Army Reserve Program.

 Motion to Dismiss.

 In support of this portion of the motion, defendant sets forth two arguments. First, he alleges that by failing to specify the names of the donors of the bribes, the indictment violates his sixth amendment rights and fails to comply with the applicable provision of the Federal Rules of Criminal Procedure. Secondly, the defendant contends that since the acts alleged in counts one and two occurred before the enactment of § 201(c), (g), the indictment is defective as to these counts. The Government concedes that count two should be dismissed.

 Rule 7(c) of the Federal Rules of Criminal Procedure provides in pertinent part that "the indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The indictment in the instant case clearly fulfills the requirements of said Rule. The defendant is amply informed of the offense charged and is able to prepare his defense. Further, the Government has agreed to furnish the names sought by defendant in a bill of particulars. Accordingly, it is concluded that defendant is not deprived of any constitutional right since he has been "informed of the nature and cause of the accusation" as required by the sixth amendment, nor does the indictment fail to comply with the pleading requirements of the Federal Rules of Criminal Procedure.

 As to defendant's second contention, the result is equally clear. Although it is true that § 201(c) of Title 18 U.S.C. did not become effective until after the alleged act was committed, § 202 of said Title, which was in effect at the time in question (January 1962), provided:

 
Whoever, being an officer or employee of, or person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or agency thereof * * * asks, accepts, or receives any money * * * with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby, shall be [guilty of a crime].

 Count one of the indictment charges that defendant, a public official, "unlawfully, wilfully and knowingly and corruptly did * * * ask, demand, exact, solicit, seek, accept, receive and agree to receive something of value for himself * * * in return for being influenced in his performance of an official act * * *." It is apparent that the language of this count has sufficiently apprised defendant that he has been charged with the commission of an offense in violation of the former § 202. Accordingly, no dismissal is warranted on these grounds. United States v. Hutcheson, 312 U.S. 219, 229, 61 S. Ct. 463, 85 L. Ed. 788 (1941); Williams v. United States, 168 U.S. 382, 389, 18 S. Ct. 92, 42 L. Ed. 509 (1897); Paz Morales v. United States, 278 F.2d 598 (1st Cir. 1960) (per curiam); cf. United States v. Galgano, 281 F.2d 908 (2d Cir. 1960), cert. denied, 366 U.S. 960, 81 S. Ct. 1916, 6 L. Ed. 2d 1253 (1961). Additionally, the fact that the wrong statute was cited does not require dismissal since there has been no showing of prejudice by the defendant. See Fed.R.Crim.P. 7(c); United States v. Galgano, supra; Paz Morales v. United States, supra; United States v. McKnight, 253 F.2d 817, 820 (2d Cir. 1958).

 Therefore, the motion to dismiss is denied except that count two will be dismissed with the consent of the Government.

 Bill of Particulars.

 Defendant requests that the Government furnish the following particulars as to each count of the indictment:

 
(a) The time of day of the ...

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