UNITED STATES DISTRICT COURT

______________ DISTRICT OF TEXAS

_________ DIVISION

UNITED STATES OF AMERICA	          	§
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V.						§	CAUSE NO. ________________
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DEFENDANT’S MOTION TO DISMISS COUNT ONE OR, ALTERNATIVELY, TO STRIKE “RESULTING IN THE DEATH OF ANOTHER PERSON” LANGUAGE AS PREJUDICIAL SURPLUSAGE 

TO THE HONORABLE _____________, UNITED STATES DISTRICT JUDGE FOR THE _________________ DISTRICT OF TEXAS:

	NOW COMES  Defendant _____________, through his attorney, and respectfully requests that the Court dismiss Count One of the indictment because it fails to sufficiently allege a “death-resulting” violation of 18 U.S.C. § 844(i).  Alternatively, __________ asks that the language “resulting in the death of another person” be struck as prejudicial surplusage.  In support of his Motion, __________ respectfully shows this Court the following:
Introduction
	______________________ is charged by indictment with being an accessory after the fact under 18 U.S.C. § 3, misprision of a felony under 18 U.S.C. § 4, false statement to a federal agent under 18 U.S.C. § 1001, and obstruction of justice under 18 U.S.C. § 1503, all in relation to federal robbery and arson offenses.  ______________________ moves to dismiss Count One of the indictment because it fails to sufficiently allege a “death resulting” offense under 18 U.S.C. § 844(i).  Alternatively, ______________________ requests that the “resulting in the death of another person” be struck from the indictment as prejudicial surplusage.1
Legal Argument and Authorities
	Count One of the indictment charges that “______________________, knowing that an offense against the United States had been committed, to-wit: that Michael James Scott had conspired with other persons to commit armed robbery and arson of a commercial business premises affecting interstate commerce and resulting in the death of another person contrary to Title 18, United States Code, Sections 371, 844(h), 844(i) and 1951, did knowingly receive, relieve, comfort, and assist the offender. . . .”  The only one of the enumerated offenses allegedly committed by Michael James Scott that contains a “death-resulting” element is the arson offense under § 844(i).  Compare 18 U.S.C. §§ 371, 844(h), 844(i), and 1951.2 
	Because the “death-resulting” provision in § 844(i) increases the statutory maximum from twenty years to life imprisonment or the death penalty, it must be alleged in the indictment and submitted to a jury as an element of the offense.  Cf. United States v. Williams, 343 F.3d 423, 432–33 (5th Cir. 2003) (applying rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), to deprivation of a person’s rights under color of law offense to find that “death-resulting” element must be pleaded in the indictment and proved to the jury beyond a reasonable doubt).  While Count One contains the language “resulting in the death of another person,” its language is not in conformity with § 844(i) and does not sufficiently allege a § 844(i) “death-resulting” offense.  	Section  844(i), provides in pertinent part: “Whoever maliciously damages. . . by means of fire. . . any building. . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both; and . . .if death results to any person . . . as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.”  The allegation contained in Count One fails to specify that the death resulted as a direct and proximate result of the arson.  Thus, the Grand Jury might have true billed the allegation in Count One based upon a finding that a death occurred as a result of the armed robbery, but not the arson.3  
	Because the Hobbs Act robbery offense does not contain a “death-resulting” element, such language is surplusage to that allegation.  This surplusage is far from harmless.  If the petit jury were allowed to make the same possible misinterpretation based on this imprecision in drafting, and the result was a conviction on Count One as charged,  ______________________ would be exposed improperly to a higher statutory maximum.  This is so because the available sentence for an accessory offense is directly tied to the principal’s potential sentence on the underlying federal crime.  See 18 U.S.C. § 3 (an accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment prescribed for the punishment of the principal; or if the principal is punishable by life imprisonment or death, the accessory shall be imprisoned not more than 15 years).  Thus, if ______________________ were convicted of being an accessory to a death-penalty eligible offense, he would face a maximum of 15 years’ imprisonment on Count One.  If he were to be convicted of being an accessory to a non-death offense, even a Hobbs Act robbery resulting in death, he would face a maximum of one half of the principal’s twenty year maximum, or ten years’ imprisonment.  Compare 18 U.S.C. §§ 371 (five-year maximum), 844(h) (twenty-year maximum), 844(i) (twenty-year maximum when death does not result as a direct and proximate cause of arson), and 1951(twenty year maximum).  Clearly, such a result is improper.
	For these reasons, ______________________ requests that the Court dismiss Count One of the indictment as it fails to sufficiently allege a “death-resulting” violation of 18 U.S.C. § 844(i).  Alternatively, ______________________ asks that the language “resulting in the death of another person” be struck as prejudicial surplusage.
PRAYER
	WHEREFOR, premises considered, ______________________ respectfully requests that this Honorable Court dismiss count one of the indictment, on the ground that the allegation fails to specify that the death resulted as a direct and proximate result of the arson, as required by § 844(i).   Alternatively, ______________________ respectfully requests that this Honorable Court strike the language “resulting in death to another person” from count one of the indictment.

						Respectfully submitted.

					Attorney for Defendant

CERTIFICATE OF SERVICE
	I certify that I served a copy of the foregoing Defendant's Motion to Dismiss Count One of the Indictment, or Alternatively To Strike Language “Resulting in Death to Another Person” as Prejudicial Surplusage on the United States Attorney for the ________ District of Texas (Attn: Assistant U.S. Attorney .), by mailing it to his office at United States Attorney’s Office,__________________on _________________, 20___. 			

						______________________________________ 
						
						Attorney for Defendant