LEVAL, Circuit Judge:
Defendant Thomas B. Stringer appeals from his conviction on both counts of a superseding indictment after a jury trial in the United States District Court for the Southern District of New York (Lynch, J.). The jury found him guilty of bank fraud in violation of 18 U.S.C. § 1344 (Count One) and unlawful use of another person's means of identification in relation to the bank fraud in violation of 18 U.S.C. §§ 1028A(a)(1) and (c)(5) (Count Two). Stringer contends that Count Two was constitutionally deficient for failure to name or sufficiently identify the person or persons whose means of identification he used in the bank fraud scheme. He also contends that the superseding indictment, filed 25 days prior to the day scheduled for the start of trial, substantially altered the nature of the allegations, and that the district court therefore abused its discretion by refusing to postpone the trial to allow him adequate time to prepare to defend against the new charges. We reject
On June 29, 2010, Stringer was arrested on a federal criminal complaint charging him with bank fraud and aggravated identity theft. The complaint set forth a detailed factual narrative describing the nature and operation of Stringer's scheme to use names and identification documents of other persons to open bank accounts funded with forged checks and withdraw the proceeds. On July 20, 2010, the government filed a two-count indictment (the "original indictment") charging Stringer with bank fraud and aggravated identity theft. One week later, on July 27, 2010, the government made evidentiary disclosures to Stringer, which included the names of two persons which he used to open fraudulent bank accounts. On May 12, 2011, the court set down the case for a trial to begin on July 25, 2011. On June 30, 2011, the government filed a two-count superseding indictment (the "superseding indictment") charging the same offenses with some alteration of the language describing them.
The superseding indictment charged as follows:
United States v. Stringer, No. 12-0608 Appendix ("App.") 21-22.
Among the changes of language as between the original and the superseding indictments was that while Count Two of the original indictment asserted that Stringer used the name of one other person (identified as "Victim-1") in a scheme involving bank accounts and checks in that person's name, the superseding indictment alleged without specification that Stringer used "one and more names" in carrying out the fraud scheme.
The court convened a conference to arraign Stringer on the superseding indictment on July 6, 2011. After the superseding indictment was read, Stringer asked the court about the significance of the change from the allegation of "Victim-1" to "one and more names." The government advised that Stringer had perpetrated the fraud using at most two names.
That evening, Stringer told his counsel he wanted a new lawyer. At a conference the following day, July 7, the court told Stringer he would not be allowed to change lawyers because there was no reason to doubt his attorney's competence to try the case and because a change would necessitate delaying the trial. The district court also stated that any motion Stringer might make to adjourn the trial due to the recent filing of the superseding indictment would be denied, because the superseding indictment neither added any new charges, nor presented a new theory, nor made changes for which the defense had no ability to prepare. The court characterized the superseding indictment as charging "the same checks, the same banks, the same scheme, the same names that have been provided by the government in discovery all along," so that the changes were essentially "ministerial." United States v. Stringer, No. 12-0608 Government Addendum ("Add.") 20.
Stringer asserted at this conference that Count Two of the superseding indictment was defective because of the failure to specify a victim's name. The court rejected the contention but added that the government would be limited to proving the two victims (whose names had been disclosed a year earlier) so there could be "no ambiguity remaining about what the charge is." Id. at 19.
Trial began on July 25, 2011. On the first day of trial, Stringer submitted a motion seeking, inter alia, (1) to represent himself at trial; (2) to dismiss Count Two as deficient, and (3) to postpone the trial to afford him time to prepare his own defense. The district court granted Stringer's request to proceed pro se, but declined to dismiss Count Two or postpone the trial.
Stringer represented himself at trial, with his former defense attorney acting as stand-by counsel. On July 29, 2011, a jury found Stringer guilty on both counts of the superseding indictment.
Stringer contends that Count Two of the superseding indictment is constitutionally defective for failure to identify any person whose means of identification he used in the commission of the bank fraud. The sufficiency of an indictment is a question of law, which we review de novo. See, e.g., United States v. Geibel, 369 F.3d 682, 689 (2d Cir.2004). Pursuant to Federal Rule of Criminal Procedure 7(c)(1), an indictment "must be a plain,
We reject Stringer's contention. We have held that to satisfy the pleading requirements of Rule 7(c)(1), an indictment need "do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime." Pirro, 212 F.3d at 92 (internal quotation marks omitted). An indictment "need not be perfect, and common sense and reason are more important than technicalities." De La Pava, 268 F.3d at 162.
When a crime, unlike the murder of a specified individual, is capable of repetition on the same day, or within a specified time frame, the indictment will rarely provide sufficient detail so that, on its face, it guarantees protection against double jeopardy. Examples commonly seen in federal courts are indictments charging a defendant with having, on or about a specified date, distributed an approximate quantity of a mixture or substance containing cocaine. A defendant may have committed the acts described in such an indictment a hundred times on or about the day specified, each one separately prosecutable. Stringer's indictment included far more limiting specificity. In addition to tracking the language of the pertinent criminal statute and specifying the time frame of the commission of the offense, Count Two, by cross referencing Count One, provided substantial additional detail as to the means by which Stringer committed the offense. It specified that he committed the fraud by "creat[ing] counterfeit checks drawn on an account at JP Morgan Chase in Manhattan, which he deposited into fraudulently created accounts at SunTrust Bank in Florida." App. 21. Notwithstanding its failure to specify the names of persons whose identifying documents were used, this charge, compared to many commonplace indictments, contained substantially more limiting detail.
When the charges in an indictment have stated the elements of the offense and provided even minimal protection against double jeopardy, this court has "`repeatedly refused, in the absence of any showing of prejudice, to dismiss ... charges for lack of specificity.'" United States v. Walsh, 194 F.3d 37, 45 (2d Cir.1999) (quoting United States v. McClean, 528 F.2d 1250, 1257 (2d Cir.1976)). Here, Stringer does not even attempt to argue that he suffered any prejudice. The government had provided him with the criminal complaint, which outlined his crimes in detail, as well as disclosures that included the victims' names, well in advance of trial. Taking these disclosures into account, it is beyond question that Stringer was sufficiently informed to defend against the charges and to be protected against the risk of double jeopardy (for which the trial record provides further protection). See Walsh, 194 F.3d at 45 (discovery cannot save a defective indictment but, "where the
In support of his argument, Stringer cites Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), a 50 year-old precedent, which is one of the very rare cases in which an indictment that tracked the statutory language and furnished the pertinent dates was held insufficient. In Russell, the defendants were charged under a federal statute that made it a crime for a witness before a congressional committee to refuse to answer questions pertinent to the committee's inquiry, 2 U.S.C. § 192. Id. at 752, 82 S.Ct. 1038. The case arose out of the controversial McCarthy-era hearings of the Committee on Un-American Activities of the House of Representatives and the Internal Security Subcommittee of the Senate Judiciary Committee. Id. at 752, n. 3, 82 S.Ct. 1038. The Supreme Court ruled that the indictments were insufficient because they failed to specify the subject matter of the congressional inquiry.
The Court stressed that:
Id. at 759, 82 S.Ct. 1038.
The Court continued, in discussing another similar case previously before it:
Id. at 767, 82 S.Ct. 1038.
In light of these statements, it is clear that the Supreme Court's decision in Russell must be seen as addressed to the special nature of a charge of refusal to answer questions in a congressional inquiry and not as a broad requirement applicable
Id. at 109-10, 127 S.Ct. 782 (internal citation and quotation marks omitted).
The Resendiz-Ponce Court concluded that the reasoning of Russell "suggests that there was no infirmity [in the indictment alleging illegal attempted reentry into the United States].... [U]nlike the statute at issue in Russell, guilt under [the statute charged against Resendiz-Ponce] does not depend so crucially upon such a specific identification of fact." Id. at 110, 127 S.Ct. 782 (internal quotation marks omitted).
The message of the Supreme Court's discussions in Russell and Resendiz-Ponce is that for certain statutes specification of how a particular element of a criminal charge will be met (as opposed to categorical recitation of the element) is of such importance to the fairness of the proceeding that it must be spelled out in the indictment, but there is no such universal requirement. See Hamling, 418 U.S. at 118, 94 S.Ct. 2887 (explaining Russell as holding that, "[w]here guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute" (internal quotation marks omitted)). Other examples that courts have found to fall in that less-common category have been specification of what statements are alleged to be false, and in what respect they are false, in charges of criminal falsity, see United States v. Tonelli, 577 F.2d 194, 200 (3d Cir.1978) ("Because the indictment in this case did not set forth the precise falsehoods alleged and the factual
Stringer's second contention is that the district court abused its discretion in refusing to postpone the trial date upon the filing of the superseding indictment to allow him additional time to prepare to meet the new charges.
While the changes in language from the original indictment to the superseding indictment, which included an additional month in the period during which Stringer was alleged to have carried out his scheme of fraud, could have provided for the inclusion of very extensive criminal activity not covered by the original indictment, the district court satisfied itself that in fact the superseding indictment introduced no significant change. There was no abuse of discretion, indeed no impropreity of any kind in the court's ruling.
The judgment of the district court is