The statute, 18 U.S.C. § 371 provides as follows: 1

If two or more persons conspire either to commit any offense against the United States,

or to defraud the United States, or any agency thereof in any manner or for any purpose,

and one or more of such persons do any act to effect the object of the conspiracy, each

shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a

misdemeanor only, the punishment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v ) CR. NO. 2:06CR202-WKW

)

EUGENE L. CLECKLER )

KIM CLECKLER )

RECOMMENDATION OF THE MAGISTRATE JUDGE

On August 15, 2006, Eugene and Kim Cleckler were indicted under 18 U.S.C. §

371 for conspiracy to defraud the Internal Revenue Service (IRS) of the United States by 1

various means to reduce the amount of taxes which their business would owe resulting

from an audit. In the second count of the indictment, both defendants were also charged

under 26 U.S.C. § 7212(a) and 18 U.S.C. § 2 for aiding and abetting each other to

corruptly obstruct and impede the due administration of the internal revenue laws of the

United States by presenting to the IRS forged and altered documentation. Kim Cleckler

filed a motion to dismiss the indictment on November 8, 2006 (doc. # 41) and Eugene

Cleckler filed a motion to dismiss the indictment on November 9, 2006. (doc. # 43). The

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government has filed responses to both motions. After due consideration of the motions

and the government’s responses, the court concludes that the motions are due to be

denied.

1. Failure to Allege “Agreement.” The Clecklers contend that the conspiracy

count of the indictment is fatally deficient because it fails to allege the existence of an

“agreement” which, of course, is the essence of a conspiracy. “For an indictment to be

valid, it must contain the elements of the offense intended to be charged, and sufficiently

apprise the defendant of what he must be prepared to meet.” United States v. Bobo, 344

F.3d 1076, 1083 (11th Cir.2003) (internal quotation marks omitted). “An indictment not

framed to apprise the defendant with reasonable certainty, of the nature of the accusation

against him is defective, although it may follow the language of the statute.” Id. (internal

quotation marks omitted). “Furthermore, if the indictment tracks the language of the

statute, it must be accompanied with such a statement of the facts and circumstances as

will inform the accused of the specific offense, coming under the general description,

with which he is charged.” Id. (internal quotation marks omitted). See also United States

v. Critzer, 951 F.2d 306, 308 (11th Cir.1992).

To prove conspiracy under 18 U.S.C. § 371 , the government must establish the

existence of an agreement to achieve an unlawful objective, the defendant's knowing and

voluntary participation in the conspiracy, and the commission of an overt act in

furtherance of the conspiracy. United States v. Suba, 132 F.3d 662, 672 (11th Cir.1998). 

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Eugene Cleckler also argues that the 1996 and the 2000 conduct are not part of a common

2

purpose and plan; therefore, joining these “offenses” in a single count is impermissible. To the extent

that this argument is based on the assertion of a fact – whether the conduct is part of a common purpose

or plan – the court is precluded from considering the argument. United States v. Critzer, 951 F.2d 306,

3

In the instant case, the indictment tracks the statutory language alleging that the

defendants engaged in a conspiracy to defraud the government. More particularly, the

indictment (1) alleges that the defendants “did conspire among themselves and with . . . ”

others “for the purpose of impeding, impairing, obstructing, and defeating the lawful

Government functions of the IRS in the ascertainment, computation, assessment and

collection of revenue, that is, income taxes;” (2) alleges the object of the conspiracy as

the reduction of additional taxes assessed against the defendants through the submission

of fraudulent documents during the IRS audit; (3) alleges the means and manner in which

the conspiracy was accomplished, setting forth in detail the defendants’ use of fraudulent

documents and generally describing those documents, and (4) alleges with specificity the

overt acts committed in furtherance of the conspiracy.

The fact that the indictment did not use the term “agreement” is not fatal. This

indictment tracks the language of the statute and is accompanied with a statement of the

facts and circumstances which adequately informs the accused that they are charged with

conspiracy to defraud the government through the use of fraudulent documents. It was

not necessary that the indictment use the term “agreement.”

2. Count I is Duplicitous. The Clecklers argue that the conspiracy count in the

indictment is duplicitous because it joins two offenses in one count . The defendants 2

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307(11th Cir. 1992) (Court may not make a pretrial determination of the sufficiency of the evidence but

must determine the sufficiency of an indictment from its face).

TM and CB are so identified in the indictment and allegedly were employee’s of Gene’s Marine 3

Sales and/or Ezy-Rider, Inc.

4

correctly observe that the indictment first alleges that beginning in or about November

1996 Eugene Cleckler with the assistance of Kim Cleckler directed TM to create 3

fictitious documents showing money paid to suppliers of their business. These documents

thus created business expenses thereby lowering taxes. The indictment also alleges that

beginning in May 2000 Eugene assisted by Kim directed TM and CB to create documents

which showed that income earned by their business was earned by another business,

thereby lowering taxes due. The Clecklers argue that the indictment alleges two distinct

conspiracies: one “to impede the administration of the IRS” and one “to shift income and

reduce taxes.” This argument is fallacious. Rather than alleging two distinct

conspiracies, the indictment alleges one conspiracy which was carried out by multiple

means. See e.g. United States v. Smith, 159 Fed.Appx. 94 (11 Cir. 2005). Count one of th

the indictment is not duplicitous.

3. Failure to Allege Substantive Offense. The Clecklers argue that the

indictment is defective because it does not allege that any substantive federal tax or other

offense was committed by the defendants. In order to charge a violation under § 371, the

government must show that the defendant conspired to commit one or more substantive

offenses against the United States, or that the defendant conspired to defraud the

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government in any manner or for any purpose. United States v. Sans, 731 F.2d 1521,

1533-35 (11th Cir.1984). The statute is written in the disjunctive and should be

interpreted as establishing two alternative means of committing a violation. United States

v. Harmas, 974 F.2d 1262, 1266 (11 Cir. 1992). Here, the indictment is based on the th

fraud component of the statute, not the offense component. Thus, no substantive offense

allegation was required.

4. Statute of Limitations. The Clecklers argue that both the 1996 conspiracy and

the 2000 conspiracy alleged in Count One of the indictment are violative of the five year

statute of limitations in 18 U.S.C. § 3282. This argument is fallacious. The court has

already concluded that the indictment charges a single conspiracy to defraud the United

States which commenced in 1996. As the United States correctly points out, the statute of

limitations applicable to a charge of defrauding the United States by impeding the Internal

Revenue Service is six years. 26 U.S.C. § 6531; United States v. Waldman, 941 F.2d

1544 (11 Cir. 1991). The last overt act occurred in November 2000. The indictment th

was returned on August 15, 2006, before the expiration of six years.

5. Fair Notice. The Clecklers argue that the indictment fails to give them fair

notice of the crime with which they are charged because the indictment is

unconstitutionally vague. They contend that in the indictment “the Government shifts its

attack and appears uncertain whether it intends to charge a failure to pay taxes or

obstruction of an IRS administrative audit. This uncertainty creates an unconstitutional

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vagueness.” This argument borders on the frivolous. The indictment is clear. It alleges

that the defendants conspired to defraud the United States by impeding, impairing,

obstructing and defeating the IRS in the ascertainment, computation, assessment and

collection of revenue. The conspiracy was carried out by the use of fraudulent

documents. The purpose was to reduce additional taxes owed as a result of the audit. 

The indictment is more than adequate in giving notice of what the defendants must

defend.

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the

motions to dismiss be denied. It is further

ORDERED that the parties are DIRECTED to file any objections to the said

Recommendation on or before December 4, 2006. Any objections filed must

specifically identify the findings in the Magistrate Judge's Recommendation objected to. 

Frivolous, conclusive or general objections will not be considered by the District Court. 

The parties are advised that this Recommendation is not a final order of the court and,

therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in

the Magistrate Judge's report shall bar the party from a de novo determination by the

District Court of issues covered in the report and shall bar the party from attacking on

appeal factual findings in the report accepted or adopted by the District Court except upon

grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 Cir.

th

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1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 Cir. 1982). See also th

Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981, en banc), adopting as binding th

precedent all of the decisions of the former Fifth Circuit handed down prior to the close

of business on September 30, 1981.

Done this 20 day of November, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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