United States of America, Appellant, v. Dale Paul Glup, Appellee, 482 F.2d 1288 (8th Cir. 1973)

Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellant.

William M. Lamson, Jr., Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH.^* 

TALBOT SMITH, Senior District Judge.

The case before us challenges the sufficiency of count one of the indictment. Such count alleges "that from on or about November 30, 1969 to on or about June 8, 1970, in the District of Nebraska, Dale Paul Glup willfully and knowingly engaged in the business of dealing in firearms in interstate commerce at 5608 Weir Street, Omaha, Nebraska, without having been licensed to do so under the provisions of Chapter 44, Title 18, United States Code.

"In violation of section 922(a) (1) and 924(a), Title 18, United States Code."¹ 

The objection made is that the indictment "is vague and indefinite and fails to inform the accused of what acts he must defend against." Reliance is had principally upon United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875), Ex Parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1886), and United States v. Hess, 124 U.S. 483, 8 S. Ct. 571, 31 L. Ed. 516 (1888).

There was a time in the history of our law when the indictment was an instrument of such archaic and arcane verbosity that it served more to confuse than to enlighten. Thus an indictment for "Selling a Diseased Cow in the Public Market" required three printed pages of fine print.²  Such exercises are now, happily, things of the past.³  As we held in Taylor v. United States, 332 F.2d 918 (8th Cir. 1964):

"Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A., provides in part:

"The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement."

The Supreme Court in United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S. Ct. 113, 114, 98 L. Ed. 92, in construing Rule 7(c), stated:

"'The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.""' [Quotation marks as appearing in original.]

An analysis of the indictment, supra, in the light of the applicable statutes, set forth hereinabove, makes clear that it contains the elements of the offense charged. Our conclusion, as we noted in United States v. Anderson, 447 F.2d 833 (8th Cir. 1971), is strengthened by the fact that the indictment substantially follows those found in the Appendix of Forms attached to the Federal Rules of Criminal Procedure.⁴  It is true that the indictment before us is not replete with the details formerly thought necessary for a complete indictment.⁵  Thus appellant points out that he is not informed by the indictment whether he is to be tried as a seller of "bombs or grenades; rockets or missiles," or is a "pawnbroker." Such arguments, if accepted, would have no end as we proceeded next to what kind of a bomb was meant, or what was the category of missile or rocket. This is not to say that such questions may not be material. But what we must distinguish, in the issue before us, are those matters constitutionally essential from those informative only.

Such discovery as is authorized by the Federal Rules of Criminal Procedure may be obtained by utilization, in part, of Rule 7(f), of a motion for a bill of particulars, its grant or denial remaining within the sound discretion of the trial court.

The dismissal of the indictment is reversed and the case remanded.