United States District Court, D. Montana, Great Falls Division
MEMORANDUM AND ORDER
Stephan Duane Korol-Locke (Korol-Locke) has moved to dismiss
the Indictment for failure to state an essential element of
the offense. The Government opposes the motion. The Court
conducted a hearing on the motion on November 13, 2017.
Indictment charges Korol-Locke with Attempted Coercion and
Enticement in violation of 18 U.S.C. § 2422(b). Section
2422(b) provides in pertinent part as follows:
"Whoever, using ... any ... means of interstate commerce
... knowingly persuades, induces, entices or coerces any
individual who has not attained the age of 18 years, to
engage in ... any sexual activity for which any person
can be charged with a criminal offense, or attempts to
do so [is guilty of Coercion and Enticement]."
Indictment tracks the language of the statute, but fails to
identify the specific criminal offense, if any, the grand
jury found that Korol-Locke may have violated based upon his
alleged conduct. The Indictment provides as follows:
"That on or about June 23, 2017, at Great Falls, in the
State and District of Montana, the defendant, STEPHAN DUANE
KOROL-LOCKE, using any facility and means of interstate and
foreign commerce, did knowingly attempt to persuade, induce,
entice, and coerce an individual who had not attained the age
of 18 years to engage in sexual activity for which any person
can be charged with a criminal offense, and committed a
substantial step toward completing said sexual activity, in
violation of 18 U.S.C. § 2422(b)."
(Doc. 1 at 1-2).
argues that the Government's failure to identify the
specific offense that he could have been charged with makes
the Indictment defective. Korol-Locke argues that the
Indictment must describe the specific offense so it is clear
that he is being "tried for the same offense that was
considered by the grand jury." (Doc. 30 at 6). The
Government argues that Korol-Locke's motion to dismiss
should be denied because "the specific state crime [that
Korol-Locke] could have been charged with is not an element
of the offense." (Doc. 37 at 4).
Indictment must meet the requirements of the Federal Rules of
Criminal Procedure and the Due Process Clause. Rule 7(c) of
the Federal Rules of Criminal Procedure requires that an
Indictment "be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged." Fed. R. Crim. P. 7(c). The Due Process Clause
requires that the Indictment set forth the elements of the
charged offense in adequate detail to inform the defendant of
the charge and enable the defendant to plead double jeopardy.
See United States v. Huping Zhou, 678 F.3d 1110,
1113 (9th Cir. 2012).
Indictment is generally sufficient if it sets forth "the
offense in the words of the statute itself, as long as those
words of themselves fully, directly, and expressly, without
any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offense intended to be
punished." United States v. Mancuso, 718 F.3d
780, 790 (9th Cir. 2013) (quoting Hamling v. United
States, 418 U.S. 87, 117 (1974). The Ninth Circuit has
stated repeatedly that the elements of a § 2422(b)
offense are as follows:
"[T]he government [must] prove that [the defendant],
using a means of interstate commerce, 'knowingly (1)
attempted to (2) persuade, induce, entice, or coerce (3) a
person under 18 years of age (4) to engage in sexual activity
that would constitute a criminal offense."
United States v. Tello,
600 F.3d 1161, 1164 (9th
Cir. 2010) (quoting United States v. Goetzke, 494
F.3d 1231, 1234-35 (9th Cir. 2007); see also United
States v. Meek,366 F.3d 705, 718 (9th Cir. 2004). The
Ninth Circuit has not held, in any reported decision, that
the state crime that the defendant could have ...