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STATEMENT OF FACTS AND

NATURE OF THE PROCEEDINGS

The defendant, Thomas L. Little, has been charged with

violating Title 13, United States Code, Section 221 (a) by an information dated June 19, 1970 and signed by F. L. Peter Stone, United States

Attorney for the District of Delaware.

On June 19, 1970, the defendant voluntarily appeared before the Honorable Edward J. Pollard, United States Commissioner and was released on his own recognizance.

On July 2, 1970, the defendant was arraigned before the Honorable Caleb Layton, Senior Judge of the United States District Court for the District of Delaware. The defendant entered a plea of not guilty.

On July 13, 1970, defendant filed a Motion to Dismiss the information and a Motion for a Bill of Particulars. On July 30, 1970, the United States filed an answer to the Defendant's Motion for a Bill of

Particulars.

This brief is offered in support of the defendant's Motion

to Dismiss the information.

ARGUMENT I

THE INFORMATION FAILS TO STATE FACTS
SUFFICIENT TO CONSTITUTE AN OFFENSE
AGAINST THE UNITED STATES

The Supreme Court of the United States in United States vs. Selah C. Carll (1882) 105 U.S. 611, 26 S. Ct. 1135 has held that where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the words of the statute. Mr. Justice Gray delivered the opinion of the

court:

"In an indictment upon a statute, it is not
sufficient to set forth the offense in the words
of the statute, unless those words of them-
selves fully, directly and expressly, without
any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offense
intended to be punished; and the fact that the
statute in question, read in the light of the
common law, and of other statutes on the like
matter, enables the court to infer the intent
of the Legislature does not dispense with the
necessity of alleging in the indictment all the
facts necessary to bring the case within that
intent. U. S. v. Cruikshank, 92 U.S. 542
[XXIII., 588]; U.S. v. Simmons, 96 U.S. 360
[XXIV., 819]; ... The omission is a matter of
substance, and not a 'defect or imperfection in
matter of form only,' within the meaning of
section 1025 of the Revised Statutes. By the
settled rules of criminal pleadings, and the
authorities above cited, therefore, the question
of the sufficiency of the indictment must be
answered in the negative.

11

More recently in Russell v. United States (1962) 369 U.S.

749, 82 S. Ct. 1038, the Supreme Court held that certain indictments charging the defendant's refusal to answer certain questions when

summoned before a congressional subcommittee were insufficient where

they did not identify the subject under inquiry at the time of the defendant's alleged default or refusal to answer. In that case Mr. Justice Steward delivered the opinion of the court which said, inter alia:

...the very core of criminality under

2 U.S. C. $192, 2 U.S. C. A. §192 is pertinency
to the subject under inquiry of the questions
which the defendant refused to answer. What
the subject actually was, therefore, is central
to every prosecution under the statute. Where
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.

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In the case at bar, it is crucial to know the specific questions which the defendant is alleged to have "refused and wilfully neglected to answer" in order to determine whether they are "applicable to the (defer.dant] and his family" as required by Title 13, United States Code, Section 221(a). It is also crucial to know the pertinence of such questions to the purpose of the census.

In view of the fact that neither the specific questions nor

their pertinence have been alleged, the information fails to state facts sufficient to constitute an offense against the United States.

ARGUMENT II

THE INFORMATION FAILS TO ADEQUATELY
INFORM THE DEFENDANT OF THE NATURE
OF THE CHARGE AGAINST HIM IN VIOLATION
OF THE DEFENDANT'S RIGHTS GUARANTEED
BY THE UNITED STATES CONSTITUTION

The Sixth Amendment of the United States Constitution

provides that "In all criminal prosecutions the accused shall enjoy

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to be informed of the nature and cause of the accusation;

The Supreme Court has, in a number of cases, emphasized

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the protections which informations and indictments are intended to guarantee. Two criteria have been advanced by which the sufficiency of the information or indictment is to be measured. The criteria are, first, whether the information or indictment "...contains the elements of the offense intended to be charged, and sufficiently appraises the defendant of what he must be prepared to meet;" and secondly, "... 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 formal acquittal or conviction." Cochran and Sayre v. United States, 157 U.S. 286, 15 S. Ct. 628, 39 L. Ed. 704; Rosen v. United States, 161 U.S. 29, 16 S. Ct. 434, 40 L. Ed. 606, Ilagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861.

In United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed.

588 the court said:

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Furthermore, in United States v. Simmons, 96 U.S. 360

at page 362, 24 L. Ed. 819, it was said that an indictment which was not drafted to inform the defendant "with reasonable certainty, of the nature of the accusation against him ... is defective although it may follow the language of the statute. '

And in United States v. Iless, 124 U.S. 483, 487, 8 S. Ct.

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Russell v. United States (1962) 369 U.S. 768, 82 S. Ct. 1038

is a case which is closely parallel to the case at bar. In Russell, a series of defendants were indicted for refusing to answer questions posed by a congressional subcommittee. The defendants were charged with

violating 2 U.S. C. $192, 2 U.S. C. A. $192, a statute which is quite

similar to the statute under which the present defendant is charged. The

former statute reads as follows:

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