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Talk Is Cheap: The Misuse of 'Speaking' Indictments
The term “speaking indictment” refers to indictments that go beyond the Fed.R.Crim.P. 7(c)(1) requirement of a “plain, concise and definite written statement of the essential facts constituting the offense charged” — i.e., an indictment that does more than simply track the statutory charging language and state the who, what, when, where and the elements of the crime, the manner and means, and, for Section 371 conspiracies, overt acts. The use of speaking indictments is often justified as providing notice to defendants of allegations the absence of which might otherwise provoke pretrial motions to dismiss or for a bill of particulars. See Department of Justice (DOJ) Criminal Resource Manual at § 214 (“The [indictment] drafter must afford the defendant … a document … that is sufficiently descriptive to permit the defendant to prepare a defense, and to invoke the double jeopardy provision of the Fifth Amendment, if appropriate.”) (emphasis added). Indeed, prosecutors and courts often cite to “speaking indictments” as a reason to deny a defense motion for a bill of particulars. See, e.g., United States v. Schaefer, 2016 U.S. Dist. LEXIS 51897 *9-12 (N.D.Ind. April 19, 2016).
However, in white collar fraud, public corruption and other high-profile cases, DOJ prosecutors sometimes go well beyond this “notice” principle and draft thick indictments laying out in conclusory language the regulatory schema surrounding the challenged conduct; public policy rationales for the laws and regulation said to be violated; alleged motives of defendants; and the government's inferences from alleged facts (“connecting the dots”) — all under section headings or captions advocating the government's view. The recent securities and FDA fraud indictment of Acclarent executives is a good example. United States v. Facteau, 15 CR 10076 (D.Ma. indictment filed April 8, 2015); see also, e.g., United States v. Mahaffy, 446 F. Supp. 2d 115, 118-19 (E.D.N.Y. 2006) (underlined and capitalized indictment captions referring to front-running, bribery, cover-up and lying to investigators); United States v. Sattar, 314 F. Supp. 2d 279, 320-21 (S.D.N.Y. 2004) (Rule 7 does not prohibit “background” section consisting of 27 introductory paragraphs not a part of any count). Sometimes the indictment even contains a table of contents.
In other words, by design, the government's speaking indictments advocate a story — one usually reserved for opening and closing jury arguments, but now intended for the news media, the jury pool and the trial jury. See Crafting Helpful Indictments, United States Attorneys' USA Bulletin at 9, 18 (July 1998) (“An indictment … is an advocacy tool … 'Speaking indictments' are more effective because they help notify the defense, court and jury of the Government's theory.”).
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