PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5796

SALOMON S. LOAYZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Raymond A. Jackson, District Judge.

(CR-95-11)

Argued: October 31, 1996

Decided: February 25, 1997

Before WIDENER and HALL, Circuit Judges, and THORNBURG,

United States District Judge for the Western District of

North Carolina, sitting by designation.

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Affirmed by published opinion. Judge Thornburg wrote the majority

opinion, in which Judge Hall joined. Judge Widener wrote a dissenting opinion.

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COUNSEL

ARGUED: Oldric Joseph LaBell, Jr., Newport News, Virginia, for

Appellant. Alan Mark Salsbury, Assistant United States Attorney,

Norfolk, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Norfolk, Virginia, for Appellee.

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OPINION

THORNBURG, District Judge:

Appellant, Salomon S. Loayza, assigns numerous errors to the

court below in connection with his convictions for mail fraud in violation of 18 U.S.C. § 1341.

Loayza and co-defendant Robert Shirey owned or co-owned and

operated several investment management companies. They devised a

Ponzi-type scheme whereby individuals were persuaded to invest in

these companies by representations that their funds would be invested

in reputable mutual funds guaranteed to earn tax-free interest and

dividends.1 The investors were also assured the original principal

investment ultimately would be returned in full. The money actually

was used to pay the personal and business expenses of appellant and

Shirey. Periodically, funds from new "investments" were used to

make "interest payments" to the earlier investors. The availability of

investment funds was assured by the use of the mail. Eleven investors

were defrauded for a total of $628,000.

I.

Appellant's first attack is on the bill of indictment. Prior to trial,

he moved to dismiss the indictment as legally insufficient. The trial

court denied the motion but ordered the government to file a bill of

particulars.

Because appellant moved against the sufficiency of the indictment

at trial, this court applies a de novo standard of review. United States

v. Darby, 37 F.3d 1059, 1060 (4th Cir. 1994), cert. denied, 115 S. Ct.

1826 (1995). "[H]eightened scrutiny" is applied because the motion

attacking the sufficiency was made prior to the verdict. Id., at 1063.

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1 A "Ponzi" scheme typically refers to one in which early investors are

paid off with money received from later investors in order to prevent discovery and to encourage additional and larger investments. It is named

for the alleged 1920's swindler, Charles A. Ponzi.

 2
Appellant attacks the indictment primarily on the ground that the

names and addresses of the victims were not included in each count.

Counsel conceded at oral argument, however, that appellant was not

prejudiced by the omission if the indictment is otherwise sufficient.

He also claims it failed to give adequate notice of the charges

because, while the counts refer to the amounts of the investment

checks sent through the mail, the indictment does not state to whom

they were payable, upon what banks drawn, the persons sending the

check, the persons to whom sent, and the places of receipt.

In order to be legally sufficient, "[a]n indictment must contain the

elements of the offense charged, fairly inform a defendant of the

charge, and enable the defendant to plead double jeopardy as a

defense in a future prosecution for the same offense." United States

v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992), cert. denied, 506 U.S.

1086 (1993). If the indictment does not contain every essential element of the offense, it is invalid; and, a bill of particulars cannot cure

the defect. Darby, 37 F.3d at 1063; United States v. Price, 857 F.2d

234, 236 (4th Cir. 1988) (citing Russell v. United States, 369 U.S. 749

(1962)). In essence, then, the bill of indictment insures that a defendant does not face incarceration "except on presentment or indictment

of a grand jury;" thus, if it is insufficient, a prosecutor cannot cure the

defects. Darby, supra; United States v. Floresca, 38 F.3d 706 (4th

Cir. 1994).

The essential elements of mail fraud are "(1) the existence of a

scheme to defraud, and (2) the mailing of a letter, etc., for the purposes of executing the scheme." United States v. United Medical and

Surgical Supply Corp., 989 F.2d 1390, 1404 (4th Cir. 1993). The

indictment here alleged that from March 1989 through December

1993, the appellant devised a scheme to defraud persons by inducing

investments in specified investment management companies which he

owned or co-owned. It also alleged intentional fraudulent representations by appellant as to future investments, interest rates, the return

of original principal, the diversion of funds, and the cover-up of the

scheme by partial "interest" payments. Eleven unidentified investors

were alleged to have been defrauded for a total of $628,000. The

checks used in the scheme were identified by the amount and as having been received through the mail on specified dates because of

 3
appellant's representations. The essential elements of the charge thus

are clearly specified.

Moreover, in order to obtain a conviction for mail fraud, the indictment must

furnish the accused with such a description of the charge

against him as well enable him to make his defence .. .".

[I]ndictments which do not identify specific mail fraud victims by name [are sufficient].

United States v. Mizyed, 927 F.2d 979, 981 (7th Cir.), cert. denied,

500 U.S. 937 (1991) (citations omitted); accord , United States v.

Hatch, 926 F.2d 387 (5th Cir.), cert. denied , 500 U.S. 943 (1991) (an

indictment for mail fraud is sufficient despite the failure to identify

the victim); accord, United States v. Arlen, 947 F.2d 139, 145 (5th

Cir. 1991), cert. denied, 503 U.S. 939 (1992) (discussing a violation

of 21 U.S.C. § 333) ("[t]he prosecution must prove beyond a reasonable doubt that a defendant intended to defraud or mislead someone,

but the indictment need not specify the intended victim; the focus is

on defendant's intent, not the victim's identity"). The indictment here

was sufficiently specific. The time period, the scheme, the purported

investment companies, the "cover-up" of the diversion of funds, and

the use of the mail to carry out the scheme are all alleged. Id. The

identity of the fraud victims is not an essential element of the crime.

Nonetheless, the appellant is entitled to assurance that the indictment and prosecution were in fact for the same violations. In other

words, upon what basis may it be determined that the grand jury

returned a bill of indictment charging mail fraud of the same investors

used by the prosecution to prove his case. Darby , supra; Floresca,

supra.

The indictment's preamble to Count One contains a detailed

description of the scheme used by appellant to defraud investors,

including the fact that appellant both solicited checks directly from

the victims and also induced them to "liquidate their legitimate investment holdings and transfer the funds to the defendant and his companies." J.A. at 13. The indictment also states that eleven investors were

defrauded of a total of approximately $628,000. Id., at 14. Count One

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goes on to allege that on September 11, 1990, appellant received from

the mail a check in the amount of $10,000 "which was mailed by an

investor." Id. Each of the remaining counts incorporates the preamble

text to Count One. Count Two alleges that on April 8, 1992, the

appellant received in the mail a check in the amount of $10,000 which

had also been mailed by an investor. Id., at 15. Likewise, Count Three

specifies the receipt on June 4, 1991, of a check in the amount of

$10,000 mailed by an investor. Id., at 15-16. The specification of the

dates on which these checks were received by appellant, the amounts

thereof, and the mailing thereof by investors assures that the grand

jury, in returning charges on these counts, had in mind the investors

who ultimately testified against appellant.

Such assurance is also certain as to Counts Four and Five. Those

counts as well incorporate the preamble text to Count One. Count

Four charges that on December 18, 1991, the appellant caused "to be

delivered by mail according to the direction thereon, a check in the

amount of $20,000.00, which was mailed by Keystone Fund to an

investor solicited on the basis of the false and fraudulent statements

and representations described" in the preamble text. J.A. at 16. When

read together with paragraph 2 in Count One, it is clear that appellant

induced the victim in Count Four to liquidate a legitimate investment

in the Keystone Fund in order to place the investment with his companies and that he used the mail to do so. Count Five charges the same

conduct, on a different date, involving a check in the amount of

$5,000, again mailed by Keystone Fund to an investor for investment

with appellant. As noted above, the specification of the dates, the

amounts of the checks, and the identification of the legitimate investment company from which the checks were sent assures that the

grand jury presented an indictment based on the investors who testified at trial.

While it is possible, as appellant argued, that he received large

numbers of checks from various investors, the indictment's identification of the dates, the check amounts and their receipt from investors

or investment companies was sufficient to place him on notice of the

charges. Appellant,

understandably, wants the government to disclose its theory

of the case and the supporting evidentiary facts."That is not

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and never has been required at the indictment stage.. . . The

ready remedy of a motion for a bill of particulars[under

Fed. R. Crim. P. 7(f)] is available to add specifics beyond

those required for the indictment to pass constitutional muster. . . ." Here, the indictment "taken as a whole . . . adequately apprised [appellant] of the charges so that [he]

might prepare a defense."

Arlen, 947 F.2d at 145 n.7 (citations omitted). Thus, the indictment

informed the appellant of the charges and caused double jeopardy to

attach for the purposes of any future prosecution. Daniels, 973 F.2d

at 274.

It nonetheless bears noting that the addition of the victims' identities could easily have been included in the indictment. Indeed, such

a simple addition would have negated the motion to dismiss below

and thus, a portion of this appeal.

II.

Appellant next claims the government engaged in prosecutorial

misconduct. During closing argument, the prosecutor stated his belief

that a certain government witness was telling the truth. J.A. at 290.

Defense counsel's contemporaneous objection was overruled. A prosecutor's remarks where an objection has been raised are reviewed in

their entirety for harmless error. Fed. R. Crim. P. 52(a). "Any error

. . . which does not affect substantial rights shall be disregarded." Id.

Appellant also claims, for the first time on appeal, that other

remarks of the prosecutor were improper. Where no objection was

raised below, the remarks are reviewed for plain error. Fed. R. Crim.

P. 52(b). "Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court."

Id.

When the defendant has made a timely objection to an error

and Rule 52(a) applies, the court of appeals normally

engages in a specific analysis of the district court record--

a so-called "harmless error" inquiry--to determine whether

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the error was prejudicial. Rule 52(b) normally requires the

same kind of inquiry, with one important difference: It is the

defendant rather than the Government who bears the burden

of persuasion with respect to prejudice.

United States v. Olano, 507 U.S. 725, 734 (1993) (citations omitted).

"Stated somewhat differently, had [appellant] preserved this issue for

appeal, we would still be called upon to determine whether the government's remarks were prejudicial in resolving whether the remarks

constituted reversible error." United States v. Moore, 11 F.3d 475,

481 (4th Cir. 1993), cert. denied, 114 S. Ct. 1864 (1994).

Considering first the prosecutor's remark concerning the veracity

of a witness, "[it is] improper for a prosecutor to directly express his

opinion as to the veracity of a witness." Moore, 11 F.3d at 481. Moreover, "[a]ny statement of personal belief jeopardizes the integrity of

the trial process." United States v. Harrison , 716 F.2d 1050, 1052 (4th

Cir. 1983), cert. denied, 466 U.S. 972 (1984). Nonetheless, comments

made by a prosecutor during closing arguments will not warrant a

new trial unless they "so infected the trial with unfairness as to make

the resulting conviction a denial of due process." United States v.

Francisco, 35 F.3d 116, 120 (4th Cir. 1994), cert. denied, 115 S. Ct.

950 (1995). In other words, were the remarks indeed improper and is

it more likely than not that the remarks materially affected the appellant's substantial rights. Id.; United States v. Bennett, 984 F.2d 597,

608 (4th Cir.), cert. denied, 508 U.S. 945 (1993) (applying this test

where counsel objected to the remarks).

The government concedes the comments here were improper. The

issue then is whether those remarks materially affected the verdict. In

resolving that issue, we consider first, whether the comments misled

the jury and prejudiced the appellant; second, were they isolated or

extensive; third, absent the remarks, what was the weight of the evidence against the accused; and fourth, were the prosecutor's remarks

deliberate. Moore, 11 F.3d at 482 (citing Olano, supra); see also

Bennett, 984 F.2d at 608. The comment here was prejudicial but the

trial court's curative instruction prevented it from misleading the jury.2

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2 The court charged the jury as follows:

 7
Francisco, 35 F.3d at 120 ("[W]e follow the presumption that the jury

obeyed the district court's limiting instructions."). The remark was

isolated and the evidence against appellant was overwhelming. Moreover, the remark clearly was not intentional since the prosecutor was

not aware the word "I" had been used and when so advised, immediately apologized. J.A. at 334-35.

The prosecutor also stated during closing argument that the appellant, who took the stand, was trying to "con" or "dupe" the jury. At

another point during defense counsel's summation, the prosecutor

said "that's not even close (to the evidence)." Defense counsel failed

to object to these comments. Thus, appellant bears the burden of

showing plain error; i.e., that the error affected his substantial rights.

Olano, supra; United States v. Adam , 70 F.3d 776 (4th Cir. 1995);

Mitchell, 1 F.3d at 240.

To reverse for plain error, we must: (1) identify an error; (2)

which is plain; (3) which affects substantial rights; and (4)

which "seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings."

Moore, 11 F.3d at 481 (quoting Olano, 507 U.S. at 736).

Under the evidence in this case, the prosecutor's argument that the

appellant, on trial for mail fraud, attempted to"con" the jury into

believing his version of the events at issue was not plain error. "It is

undisputed that closing argument is not merely a time for recitation

of uncontroverted facts" and argument may rely on inferences from

the evidence. Francisco, 35 F.3d at 120.

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Ladies and gentlemen, I caution you here at this point that during

the course of closing argument both counsel perhaps from time

to time used the phrase "I believe" or "I think," or this or that in

referring to the evidence. That is not evidence. What counsel

believes or thinks doesn't matter. It is what you believe and what

you find to be the evidence. You are the judges of the facts. So

I caution you of that.

J.A. at 334.

 8
While it was improper for the prosecutor to make an exclamation

during the closing argument of defense counsel, it cannot be said the

remark constituted error. It would have been entirely appropriate for

the prosecutor to argue during summation that the defense version of

the events at issue "were not even close" to the evidence presented.

Thus, the remark, while perhaps a breach of courtroom etiquette, was

not error.

Moreover, the appellant has not identified the impairment of a substantial right which seriously affected the fairness and integrity of the

judicial process. Moore, supra. Thus, the remarks did not constitute

prosecutorial misconduct giving rise to reversible error.

III.

Appellant also claims the trial court erred in the admission of evidence pursuant to Federal Rule of Evidence 404(b) in the absence of

a notice by the government that such evidence would be presented.3

Inherent in appellant's claim is a showing that the evidence at issue

is indeed Rule 404(b) evidence.

It is well-settled that decisions regarding the admission and

exclusion of evidence are peculiarly within the province of

the district court, not to be reversed on appeal absent an

abuse of discretion. [A]ny error in [the] admission or exclusion [of evidence] is subject to the harmless error test.

Francisco, 35 F.3d at 118 (citations omitted).

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3 Rule 404(b) provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident,

provided that upon request by the accused, the prosecution in a

criminal case shall provide reasonable notice in advance of trial,

. . . of the general nature of any such evidence it intends to introduce at trial.

 9
Robert Shirey testified that he and appellant co-owned Provident

Capital Management. Irvin Kuhn, an alleged victim, testified that he

invested funds with Provident Capital Management in late 1992 and

early 1993. J.A. at 76-78, 83-87. Appellant objected to this evidence,

claiming that Kuhn actually gave the investments to Shirey who

invested them in Provident Capital Management, a company in which

appellant had no ownership. In addition, appellant argued the time

frame of these investments was outside the scope of the indictment.

Thus, appellant claims this testimony amounted to improper use of

Rule 404(b) evidence to show a propensity to commit mail fraud.

However, the indictment alleged the scheme continued from March

1989 through December 1993. It also alleged, and the evidence at trial

showed, that Loayza and Shirey co-owned Provident Capital Management. The last date in the indictment when appellant was alleged to

have used the mail was March 1992. However, his participation in the

scheme with Shirey later that year was simply direct evidence of the

scheme to defraud, not Rule 404(b) evidence.

It is well-established, however, that the mere fact that the

evidence involved activities occurring [after] the charged

time frame of the [offense] does not automatically transform

that evidence into "other crimes" evidence. . . . "There is no

requirement that all the Government's evidence fall within

the time period of the indictment, providing it is relevant to

the charges." Rather, evidence of uncharged conduct is not

considered "other crimes" evidence if it "arose out of the

same . . . series of transactions as the charged offense, . . .

or if it is necessary to complete the story of the crime (on)

trial."

United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994), cert.

denied, 115 S. Ct. 939 (1995) (citations omitted); United States v.

Dozie, 27 F.3d 95, 97 (4th Cir. 1994) (evidence concerning fraudulent

conduct occurring within the time frame of the conspiracy to defraud

admissible to prove involvement in the scheme, not to prove similar

acts).

IV.

At trial, the government used summary charts of bank records

which were introduced after the testimony of thirteen prosecution wit-

 10
nesses occurring over a three day period. Among the 130 government

exhibits admitted during this time were the complete bank records of

all the companies used by Loayza and Shirey to instigate and perpetuate the fraudulent scheme. Appellant's only argument against the

admission of the summary charts is that they "unduly showe[d] the

evidence. The jury should be making their judgment from the original

records." Appellant's Br. at 29.

The admission of summary charts "will not be overturned on

appeal unless [the] decision is shown to be arbitrary or irrational."

United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir.), cert. denied,

116 S. Ct. 266 (1995). Summary charts are admissible if they aid the

jury in ascertaining the truth. Id., at 1159. The complexity and length

of the case as well as the numbers of witnesses and exhibits are considered in making that determination. Id. While the potential prejudice to a defendant must be considered, prejudice may be dispelled

by giving the defendant an opportunity to cross-examine the individual who prepared the chart. Id. In addition, a cautionary jury instruction may be requested and given. Id.

The court below applied these factors. It elicited from defense

counsel that he had pretrial access to the original documents from

which the summary charts were prepared. J.A. at 215. Counsel also

had the benefit of the charts themselves prior to trial and an opportunity to cross-examine the testifying agent. Id. ; Johnson, supra.

In addition, the trial court gave the jury a cautionary instruction

regarding the use of the charts. Appellant claims this instruction was

erroneous because it "invited" the jury to"accept the checks as genuine because they were on the chart." Appellant's Br. at 31. In fact, the

trial court laboriously reviewed this instruction with both counsel and

included language designed to answer appellant's concern. ("Charts

and summaries are only as good as the underlying evidence that supports them." J.A. at 351.) Moreover, counsel accepted and agreed to

this instruction. J.A. at 280. Viewing the instruction as a whole, it

clearly "informed the jury that the chart represented the Government's

analysis, and the jurors must weigh the evidence and determine the

witnesses' credibility on their own." Johnson , 54 F.3d at 1161. "Without evidence to the contrary, we follow the presumption that the jury

obeyed the limiting instructions." Id.

 11
V.

Appellant claims there is insufficient evidence to sustain his convictions of Counts Four and Five because there was no evidence to

show he caused the mailings involved in those counts. According to

appellant, the evidence failed to show that Mrs. Vaillancourt, one of

the victims, told him she had investments in the Keystone Fund. Thus,

there was no showing that he knew the mail would be used.

In reviewing the sufficiency of the evidence to support

[appellant's] conviction, this court must view the circumstantial and direct evidence in the light most favorable to the

government and determine whether any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.

United States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995), cert.

denied, 117 S. Ct. 49 (1996).

Mrs. Vaillancourt testified that in 1991 the appellant and Shirey

visited her at her home because they wanted her to invest in their

company, Salomon Roberts Company. J.A. at 49. As a result, she

withdrew money from the Keystone Fund and a check in the amount

of $20,000 was made payable to her from that fund and mailed to her.

Id., at 51-52. She then endorsed that check to appellant. Id. Appellant

claims her testimony failed to establish that he knew the Keystone

Fund would use the mail for the transactions.

However, the mail fraud statute does not require such knowledge.

The question is whether the jury could have reasonably concluded that the mailings were for the purpose of executing

the scheme. . . . The mails were "used prior to, and as one

step toward, the receipt of the fruits of the fraud." . . .

"Where one does an act with knowledge that the use of the

mails will follow in the ordinary course of business, or

where such use can reasonably be foreseen, even though not

actually intended then he `causes' the mails to be used."

 12
United States v. Snowden, 770 F.2d 393, 397 (1985) (citations omitted); see also, Schmuck v. United States , 489 U.S. 705, 710-11 (1989)

("It is sufficient for the mailing to be `incident to an essential part of

the scheme,' or `a step in [the] plot'"); United States v. Maze, 414

U.S. 395, 400 (1974). A reasonable jury could have found that appellant's solicitation of Mrs. Vaillancourt's investment was done with

knowledge that use of the mails would follow in the ordinary course.

Thus, the evidence was sufficient to support the convictions in Counts

Four and Five.

VI.

Finally, appellant claims the sentencing court committed error in

the computation of loss. The circuit reviews " de novo the district

court's legal interpretation of the term `loss' under the Sentencing

Guidelines, but `to the extent that the determination of the amount of

loss is a factual matter, we review only for clear error.'" United States

v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995). Only a preponderance

of the evidence need support these factual findings. United States v.

Engleman, 916 F.2d 182, 184 (4th Cir. 1990).

In calculating the total amount of loss attributable to appellant, the

sentencing court included the "interest" payments made to the early

investors. The evidence at trial showed that appellant and Shirey

made such periodic payments to dispel investors' complaints and to

keep the scheme active. However, the funds used for those payments

came from defrauding other investors. Appellant argues the amount

of loss attributed to him should have been reduced by these sums

which totalled approximately $96,000.

"Loss" is defined as "the value of the property taken, damaged, or

destroyed." U.S.S.G. § 2F1.1, comment (n.7) (1994); U.S.S.G.

§ 2B1.1, comment (n.2) (1994). "[I]f an intended loss that the defendant was attempting to inflict can be determined, this figure will be

used if it is greater than the actual loss." U.S.S.G. § 2F1.1, supra. It

does not appear this Circuit has addressed the application of these

definitions to the issue at hand. Both parties note the Seventh Circuit

has addressed the point in a case involving an almost identical

scheme. United States v. Holiusa, 13 F.3d 1043 (7th Cir. 1994).

There, the defendant solicited over $11,000,000 for investment in

 13
fraudulent companies. Because of complaints from the early investors, over $8,000,000 in payments were returned to them before the

scheme was uncovered. The sentencing court charged the defendant

with the full amount of $11,000,000; but, on appeal, the Circuit

reversed holding that only the "net" loss should be charged. See e.g.,

United States v. Menichino, 989 F.2d 438, 441-42 (11th Cir. 1992);

United States v. Smith, 951 F.2d 1164, 1168 (10th Cir. 1991); United

States v. Kopp, 951 F.2d 521, 534-35 (3d Cir. 1991); but see, United

States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996) (invoking a caseby-case approach).

The government, however, encourages us to adopt the approach of

the dissent in Holiusa which noted that at the time the defendant was

engaged in the fraudulent conduct, he clearly intended to receive the

full amount. Thus, the definition of "loss" provided in the Guidelines

resolves the issue. "This process of partial return was an essential part

of [the defendant's] `Ponzi' scheme, and any comparison to a legitimate pledge or security is unfounded." Holiusa, 13 F.3d at 1048-49

(footnote omitted) (Manion, J., dissenting).

The Second Circuit has declined to adopt a "net" loss theory. In

dealing with a Ponzi scheme, that court held:

Under section 2F1.1, loss does not always equal the actual

financial harm suffered by the victim. Where the"intended"

loss is greater than the "actual loss", intended loss will be

used. U.S.S.G. § 2F1.1 Application Note 7."Under the

Guidelines, `loss' includes the value of all property taken,

even though all or part of it was returned." Applying these

principles, [defendant's] sentence was properly enhanced.

Although he returned some of [one victim's] money, and

repaid [two other victims], he did so as part of a meretricious effort to maintain their confidences. He is therefore

not entitled to credit for sums returned, or for sums spent for

[the first victim's] benefit.

United States v. Mucciante, 21 F.3d 1228, 1238 (2d Cir. 1994), cert.

denied, 115 S. Ct. 361 (1994) (citations omitted).

Here, the trial court also found the appellant never intended his victims should ultimately keep the sums paid as "interest".

 14
[T]he defendant, without question, participated in a scheme

where a total of $643,575.14 was taken. However, during

the course of the preparation of the scheme, around $98,000

was returned to the defrauded investors clearly for the purpose of continuing to defraud them, to perpetrate the

scheme. So it was not returned out of any good faith change

of mind or any concern about restoring something to the victims, but merely to perpetrate the scheme. . . . It just does

not appear to the court that this defendant ought to be able

to profit from monies that just happened to be back in the

victim's hand while he was perpetrating the scheme because

he never had any intent for them to keep the money. It was

all designed so that he could continue to steal money from

his victims.

J.A. at 404-05. Thus, the sentencing court found the appellant

intended the total amount to be defrauded. This approach which holds

a defendant responsible for the amount of loss which was intended,

not the actual loss ultimately sustained, is appropriate in cases where

the payments are vital to the longevity of the scheme. Thus in such

factual scenarios, this court will decline to follow the approach of "net

loss" and will hold defendants responsible for the value of all property

taken, even though all or a part is returned. Where the "intended loss"

is greater than the "actual loss," the intended loss should be used.

Finally, in appellant's case, giving him credit for the $96,000 of

"interest" payments does not change the calculation of his offense

level. Even if the payments are deducted from the total amount

defrauded, the loss exceeds $500,000 and a 10-level increase in

offense level is warranted. U.S.S.G. § 2F1.1(b)(1)(K).

CONCLUSION

The court has reviewed appellant's other contentions and finds

them to be without merit. For the reasons set forth herein, the judgment of the district court is hereby

AFFIRMED.

 15
WIDENER, Circuit Judge, dissenting:

I respectfully dissent.

While it is true that by the time the courtroom proceedings before

the jury commenced Loayza had notice of the acts with which he was

charged and that following the trial, a reference to the whole record,

including the bill of particulars, would suffice to sustain a plea of former jeopardy in any future trial, it is not true that the Fifth Amendment's requirement, that the indictment show that he was indicted by

a grand jury on account of the same acts for which he was tried, was

complied with. In that connection, it is plain that the requirement of

Rule 7(c)(1) of the Federal Rules of Criminal Procedure, which give

effect to the Fifth Amendment to the Constitution, that "[t]he indictment . . . shall be a plain, concise and definite written statement of

the essential facts constituting the offense charged" has been violated,

as I will demonstrate.

I.

At trial Loayza moved for the dismissal of all the counts of the

indictment (ONE-SIX) for failing to name and describe the investors

designated; failing to describe the nature of the misrepresentation

made to each of said investors and the date and manner in which it

was made; and failing to describe sufficiently the item placed in or

taken from the mail. Additionally, he moved to dismiss Counts

FOUR, FIVE, and SIX for failure to allege venue within the jurisdiction of the court. The district court denied Loayza's motion, but

ordered the government to file a bill of particulars. There is no question on appeal with respect to venue or the nature of misrepresentation made to the investors.

The six-count indictment1 alleges that Loayza solicited 11 investors

and took from them a total of $628,000 pursuant to his fraudulent

scheme.

_________________________________________________________________

1 The sixth count, drafted in similar fashion to Counts FOUR and

FIVE, was dismissed before trial.

 16
In each of Counts ONE, TWO and THREE,2 the indictment

includes the allegations with respect to the Ponzi scheme and then

alleges that Loayza, on a given date,

did take and receive . . . from the mail, a check in the

amount of $10,000, which was mailed by an investor

solicited on the basis of the fraudulent Ponzi scheme. The indictment

does not disclose the name of the investor, neither does it otherwise

identify the investor. The indictment does not disclose the date of the

check; it does not disclose the serial number of the check; it does not

disclose the drawer of the check; it does not disclose the bank on

which the check was drawn; it does not disclose the payee of the

check; it does not disclose the date of mailing of the check; or to

whom the check was mailed; where the check was mailed from; neither does it disclose where the check was taken from the mail other

than the Eastern District of Virginia.

Counts FOUR and FIVE fare no better.3 They reallege the Ponzi

_________________________________________________________________

2 Counts ONE, TWO and THREE are identical in their lack of detail,

only the date of taking from the mail differs. Typical of these three

counts, Count TWO states:

COUNT 2

THE GRAND JURY CHARGES THAT:

 1. Paragraphs 1, 2, 3, 4, 5 and 6 of Count One of this indictment [describing the Ponzi scheme] are hereby realleged and

incorporated herein by reference as though fully set forth herein.

 2. On or about April 8, 1991, in the Eastern District of Virginia, for the purpose of executing the aforesaid scheme and artifice and attempting to do so, SALOMON S. LOAYZA did take

and receive and cause to be taken and received from the mail, a

check in the amount of $10,000.00, which was mailed by an

investor solicited on the basis of the false and fraudulent statements and representations described above.

 (In violation of Title 18, United States Code, Section 1341 and

Section 2.)

3 Counts FOUR and FIVE are identical except as to the dates of causing to be delivered and amounts of the checks. Count FOUR provides:

 17
scheme and then provide that on a given date in the Eastern District

of Virginia, Loayza

did knowingly cause to be delivered by mail according to

the direction thereon, a check in the amount of . . . [$____,]

which was mailed by Keystone Fund to an investor

solicited on the basis of the fraudulent representations of the Ponzi

scheme.

The indictment does not disclose the bank on which the check was

drawn, the date of the check, the number of the check, the drawer of

the check, the name of the investor, the date of mailing to the investor, nor does it disclose the date of mailing by the investor at Loayza's

direction.4 The indictment also does not otherwise identify the inves-

_________________________________________________________________

COUNT FOUR

THE GRAND JURY FURTHER CHARGES THAT:

 1. Paragraphs 1, 2, 3, 4, 5 and 6 of Count One of this indictment [describing the Ponzi scheme] are hereby realleged and

incorporated herein by reference as though fully set forth herein.

 2. On or about December 18, 1991, in the Eastern District of

Virginia, for the purpose of executing the aforesaid scheme and

artifice and attempting to do so, SALOMON S. LOAYZA did

knowingly cause to be delivered by mail according to the direction thereon, a check in the amount of $20,000.00, which was

mailed by Keystone Fund to an investor solicited on the basis of

the false and fraudulent statements and representations described

above.

 (In violation of Title 18, United States Code, Section 1341 and

Section 2.)

4 A fair reading of Counts FOUR and FIVE of the indictment indicates

that each count refers to two mailings, one from the Keystone Fund to

an investor, and another from the investor to Loayza. After the bill of

particulars was filed and proof was taken in the case, it has turned out

that the government has depended on only one mailing, from the Keystone Fund to the investor. Who can tell what was presented to the grand

jury?

 18
tor or which Keystone Fund is involved. Even a rural newspaper lists

in its daily financial mutual fund section 12 entries under Keystone,

each obviously representing a different mutual fund belonging to a

family of funds. See e.g. Bristol Herald Courier/Virginia-Tennessean

7b, Dec. 11, 1996. Without more, one can only assume the indictment

refers to the Keystone Management, Inc. company, but of that one

cannot be certain.

Keystone Management, Inc. oversees at least 31 different mutual

funds that hold some $9.5 billion in assets. Keystone's largest fund

contains assets valued at $1.4 billion (Keystone Custodian Funds, Inc.

K-1 Series) and even the smallest fund is worth $5.1 million (Keystone America Texas Tax Free Fund). See Investment Company Institute, 1995-1996 Directory of Mutual Funds (1995) (listing individual

funds and asset value as of Sept. 10, 1994). As of September 30,

1996, another mutual fund reporter which tracks funds and their different classes listed no less than 67 entries for Keystone with assets

totaling approximately $9.6 billion. Johnson's Charts, Quarterly Performance Report 46 (Sept. 30, 1996). In light of these massive holdings the indictment's bald statement that "Keystone Fund" mailed a

check does nothing to increase the specificity of the indictment.

Which Keystone fund, if any, was the drawer of the check is nowhere

disclosed. In fact, the recital of the mailing of the check by one of 31

Keystone funds only serves to underscore the vagueness of these deficient counts. As Loayza argued in his pretrial challenge to the indictment, from the too meager recitals of the indictment it is impossible

to identify the checks and transactions involved. One may only guess

at how many dozens, hundreds, or thousands, of checks Keystone

causes to be delivered by mail on a daily basis in the managing of its

multi-billion dollar holdings, either in the specified amounts or any

other amount.

This said, Counts FOUR and FIVE also fail to state to whom the

checks were payable, upon what banks they were drawn, to whom

they were sent, or the places of either mailing or receipt.

II.

Rule 7(c)(1) of the Federal Rules of Criminal procedure requires

that every indictment contain "a plain, concise and definite written

 19
statement of the essential facts constituting the offense charged." This

rule acts to guarantee several constitutional protections, and thus the

sufficiency of the indictment may be evaluated according to whether

it actually serves each of these functions. In Russell v. United States

the Court stated, first, that to ensure the defendant's Sixth Amendment right to know what he is charged with, the indictment must contain the elements of the offense intended to be charged and

"sufficiently apprise[ ] the defendant of what he must be prepared to

meet." Russell v. United States, 369 U.S. 749, 763-64 (1962). Second,

to guarantee a defendant's Fifth Amendment protection against double jeopardy "the record [must] show[ ] with accuracy to what extent

he may plead a former acquittal or conviction." 369 U.S. at 764. Double jeopardy protection is not at issue here because, as mentioned

above, when the bill of particulars was included and evidence was

taken, the record sufficiently identified the specific transactions for

which he was convicted to protect him against any subsequent prosecution. Russell, 369 U.S. at 764; see Wright, 1 Federal Practice and

Procedure § 125 n.6 (citing Russell ). And Loayza also knew from the

indictment he was being charged with mail fraud, but the indictment

is far too vague in describing the acts with which Loayza was charged

to pass either procedural or constitutional muster.

Central to the deficiency of the instant indictment, is the Fifth

Amendment's requirement that "[n]o person shall be held to answer

for a capital, or otherwise infamous crime, unless on a presentment

or indictment of Grand Jury. . . ." This provides another standard for

the sufficiency of an indictment. See 8 Moore, Federal Practice

¶ 7.02 (1996).

The Court in Russell explained that "The very purpose of the

requirement that a man be indicted by a grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge." Russell, 369 U.S.

at 771 (quoting Stirone, 361 U.S. at 218 (1960)). This fundamental

protection "is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a

means of protecting the citizen against unfounded accusation, whether

it comes from the government, or be prompted by partisan passion or

private enmity. No person shall be required . . . to answer for any of

the higher crimes unless . . . [the grand jury] shall declare . . . that

 20
there is good reason for his accusation and trial." Stirone, 361 U.S.

at 218 n.3 (quoting Ex parte Bain, 121 U.S. 1, 11 (1887)). The Court

has stressed that the indictment must be complete and definite in its

charges because

[t]o allow the prosecutor, or the court, to make a subsequent

guess as to what was in the minds of the grand jury at the

time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a

defendant could then be convicted on the basis of facts not

found by, and perhaps not even presented to, the grand jury

which indicted him.

Russell, 369 U.S. at 770.

In Stirone v. United States, 361 U.S. 212 (1960), the defendant was

charged with one violation of federal law (interference with interstate

transport of sand) while at trial proof of another basis for the violation

was permitted (interference with interstate steel shipments). The

Court reversed the conviction, finding that the defendant's Fifth

Amendment rights were abrogated because it was impossible to tell

whether the defendant was convicted for the same violations for

which he was indicted. Stirone, 361 U.S. at 219. Similarly, even if the

record at trial makes clear which transactions the jury considered in

convicting Loayza, from the indictment we have no indication of

what evidence of which transactions were presented to the grand jury

in its decision to indict. The sparse indictment does not specify the

serial numbers of the checks involved, the investors involved, the

banks on which the checks were drawn, to whom the checks were

payable, the dates of the checks, the dates or place of mailing in all

of the counts, the date of receipt in Counts FOUR and FIVE, or which

one of the 30-odd Keystone funds was the drawer of the check.

Indeed, exhibiting to the grand jury any check in the amount of

$10,000, regardless of the date, number, bank, payee or drawer, and

whether paid or unpaid, would have satisfied Counts ONE and TWO

of the indictment. Almost the same difficulty is present for Counts

FOUR and FIVE. For each of those counts, any check ever written

in the amounts indicated in the indictment by any of the 30-odd Key-

 21
stone funds, regardless of date, number, bank, or payee, upon being

presented to the grand jury would have satisfied the vague requirements of the indictment. And it is even doubtful, at best, that such

check should have been drawn by any of the Keystone funds because

the indictment provides in Counts FOUR and FIVE only that the

checks were "mailed by Keystone," not made or drawn by Keystone.

Thus we cannot say "with certainty that . . .[Loayza] was convicted solely on the charge made in the indictment the grand jury

returned." Stirone, 361 U.S. at 217.

III.

While the majority opinion does recognize that a bill of particulars

cannot cure a defective indictment, it is well to emphasize that the

Supreme Court has so held in Russell v. United States, 369 U.S. 749

(1962).

Along the same line, to any extent that the majority opinion, p.3,

relies on a lack of prejudice on account of the defective indictment,

that reliance is not well taken because we have decided, in United

States v. Daniels, 973 F.2d 272, 275 (4th Cir. 1992), that when there

has been, as here, ". . . a timely objection to the sufficiency of the

indictment, an absence of prejudice is irrelevant." As Daniels points

out, our en banc court decided the same question in United States v.

Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc), and United States

v. Pupo, 841 F.2d 1235 (4th Cir. 1988) (en banc).

IV.

The majority opinion depends on three cases to support its affirmance. They are: United States v. Mizyed, 927 F.2d 979, cert. denied,

500 U.S. 937 (1991); United States v. Hatch, 926 F.2d 387 (5th Cir.),

cert. denied, 500 U.S. 943 (1991); and United States v. Arlen, 947

F.2d 139 (5th Cir. 1991), cert. denied, 503 U.S. 939 (1992).

I suggest, however, that none of them support the conclusion of the

majority. Mizyed was a case in which the defendant was convicted of

mail fraud in connection with a scheme involving a false redemption

 22
of food coupons from food manufacturers and others. The defendant

had admitted that he had submitted false information in questionnaires sent through the mail, the false information being that

J & J Foods, his employer, did accept coupons while, in fact,

J & J Foods did not accept coupons. The sole question raised as to

the indictment was that the names of the victims of the mail fraud

were not identified in the indictment. No other objection was made.

The court examined the indictment and found that it"properly

detailed the factual circumstances that caused Mizyed to run afoul of

the law." 927 F.2d at 981. The other terms of the indictment are not

made a part of the opinion, neither are they recited, so we do not

know what else it contained, but, since the only objection was the lack

of names, that opinion can stand for no more than if such is the sole

objection an indictment otherwise sufficiently identifying facts will

suffice and the indictment will stand. To use Count FIVE of the case

at hand as an example, one of the checks involved was No. 00231838,

dated March 27, 1992 and payable to Shirley L. Vaillancourt, in the

amount of $5,000, Keystone Series B-4, Account No. 46-

1004898042, drawn by Keystone Investor Resource Center [illegible]

Disbursement Agent /s/ Ralph L. Spaulding. Had that data, or enough

thereof to identify the transaction, been disclosed except the name of

Shirley L. Vaillancourt, the description in the indictment of course

should be held sufficient, and the mere omission of the name Shirley

L. Vaillancourt should not invalidate the indictment. But the government here, having in its previous possession all of the data with

respect to the check, disclosed none of it except its amount.

In United States v. Hatch, a Louisiana sheriff, in legal possession

of the general fund for his office, authorized his chief civil deputy to

send a check to Hatch in the amount of $25,000, drawn on the general

fund. Such check was sent by mail. The $25,000 payment was for services which Hatch did not actually provide, and the government's

contention was that Hatch and the sheriff planned to defraud the general fund of the money. The indictment alleged a scheme to defraud

the Union Parrish Sheriff's Office of the money. Hatch contended that

since the general fund was not a separate legal entity from the sheriff's office, it was impossible to defraud the office. The court decided

that naming the sheriff's office as the party defrauded did not prevent

Hatch from ascertaining the charges against him. Indeed, the court

stated accurately the issue: "[s]ince the UPSO is not a legal entity

 23
Hatch claimed that it is impossible to defraud the UPSO [Union Parrish sheriff's office]." 926 F.2d at 391. The only question decided in

that case was that it was possible to defraud the sheriff's office, therefore the Hatch opinion should have no effect on our decision at all.

The indictment in Hatch omitted or concealed nothing; only the legal

effect of the fact disclosed in the indictment was involved.

United States v. Arlen is much like United States v. Hatch. In the

Arlen case, the indictment charged that the defendant, with the intent

to defraud and mislead, had delivered for introduction into interstate

commerce certain prescription drugs without a prescription. The

indictment set forth the date of the delivery, the name of the drug, and

the recipient of the drug. The statute involved was 21 U.S.C.

§ 333(b), which required for the degree of the offense charged that the

violation be "with the intent to defraud or mislead." The court

instructed the jury that if it believed that violation was with the intent

to defraud or mislead the government in its regulation of drugs, that

was sufficient to satisfy the statute. The court simply held that since

the statute did not require any particular person or organization to be

defrauded, only that the intent be there, the indictment was sufficient

without specifying who must be defrauded.

Again, Arlen, as Hatch is similarly, is only a case of statutory construction having little or nothing to do with identifying the transaction

involved. Indeed, a reference to the indictment in n.6 of the Arlen

opinion, 947 F.2d at 145, sets out exactly the transaction with which

Arlen was charged: the date of the act, the name of the drug, and the

recipient of the drug. But the government, here, even with all the

information at hand, chose not to identify with any reasonable certainty the acts with which Loayza was charged. Its omission of the

name is only a part of the deficiency, and a small part at that.

In this circuit, we have indeed arrived at a like conclusion as in

Hatch and Arlen in United States v. Darby, 37 F.3d 1059 (4th Cir.

1994), which involved the construction of a statute involving a threatening communication in violation of 18 U.S.C. § 875(c). Neither

Hatch, nor Arlen, nor Darby involved the omission of sufficient factual information to identify the acts with which the defendant was

charged,5 the only decisions in those cases being the construction of

a statute or of a term used in the indictment.

_________________________________________________________________

5 The government does not depend on the same authority as does the

majority opinion. Rather, it relies solely on United States v. Caldwell,

 24
V.

The decisions in this circuit and as well the decisions of other circuits are consistent with the teachings of Russell and Stirone, and

have, with considerable uniformity, dismissed indictments which did

not state the essential facts constituting the offense charged.

United States v. Hooker, 841 F.2d 1225 (4th Cir. 1988) (en banc),

was a RICO prosecution under 18 U.S.C. § 1962(c), which required

the enterprise involved be engaged in activities which affect interstate

commerce. The indictment omitted the allegation that the activities

charged, money laundering by Hooker, had an effect on interstate

commerce. The en banc court held that the indictment was deficient

not only for failing to state an offense but because it "did not satisfy

the Fifth Amendment requirement that all elements of the offense

have been considered and found by the grand jury." 841 F.2d at 1230.

We rejected arguments that such omission could be cured by a bill of

particulars or jury instructions or a reference to the statute.

United States v. Pupo, 841 F.2d 1235 (4th Cir. 1988) (en banc),

was a companion case to Hooker. The indictment was for possession

with intent to distribute and the distribution of cocaine. The statute

required that the distribution be knowingly or intentionally done.

Although the indictment referred to the statute, the fact that the distribution was known or intentional was omitted from the indictment,

and we held the indictment must be dismissed on that account. We

held that "a mere citation to the applicable statute does not give a

defendant notice of the nature of the offense." 841 F.2d at 1239.

_________________________________________________________________

544 F.2d 691 (4th Cir. 1976). The indictment in Caldwell, however, provided in terms that the defendant, Caldwell by name,"on or about

August 14, 1970, knowingly and wilfully placed and caused to be placed

in the United States mails an envelope containing a check, said envelope

being addressed to `The Greenbrier, White Sulphur Springs, West Virginia, 24986'" for the purpose of executing the scheme to defraud. 544

F.2d at 700. Thus, the Caldwell indictment set out information from

which Caldwell could identify the transaction with which he was

charged, factual recitals not present here.

 25
We followed Hooker and Pupo in United States v. Daniels, 973

F.2d 272 (4th Cir. 1992). Daniels was a case in which the defendant

was convicted of possessing and transferring a sawed-off shotgun.

The indictment described the shotgun and the transfer in detail but

omitted a reference to the code section permitting the transfer. The

district court permitted an amendment to the indictment merely to add

a reference to the code section. We held that this was in violation of

the Fifth Amendment's requirement that a defendant must be prosecuted for a capital or infamous offense only on indictment by a grand

jury. Since the indictment on which Daniels was tried did not include

the statutory reference, we held the indictment had to be dismissed.

Again, we acknowledged that the result was required although Daniels had adequate notice of the charges and received a fair trial.

United States v. Hayes, 775 F.2d 1279 (4th Cir. 1985), was a case

of like effect which preceded Hooker, Pupo and Daniels. Hayes was

a case under the Travel Act in which 18 U.S.C. § 1952(a) required

that the travel be done with intent to carry on or facilitate the promotion of an unlawful activity, the activity in the case being the bribery

of a public official in violation of state law. While the requirement of

the statute of travel for bribery was plainly set out in the indictment,

the indictment did not allege the fact that Hayes had thereafter

attempted to perform or performed the violation of state law which he

had been charged with traveling to do. We held that was a violation

of Fed. R. Crim. P. 7(c)(1) because it did not set forth an essential element of the crime being charged.

Other circuits have come to the same conclusion. United States v.

Tomasetta, 429 F.2d 978 (1st Cir. 1970), was a prosecution for loan

sharking under 18 U.S.C. § 894 in which the defendant was charged

in the indictment that on a given date at Worcester he did "participate

in the use of extortionate means . . . namely an express and implicit

threat of use of violence to cause harm to the person or certain persons to collect or attempt to collect extensions of credit." The court

held that indictment to be invalid under Rule 7(c) because, unless the

defendant could demonstrate he was not in the City of Worcester during the entire day in question, he could not have provided an alibi

because the precise time and place were not specified in the indictment, p. 980; because of the failure to specify the means by which the

alleged threats were communicated, p. 980; and because of the failure

 26
to name the victim, p. 980. The court described the indictment as

accusing the defendant "of making threats by an unstated means to an

unnamed person on a particular day in a city of moderate size," p.

979. The court stressed that no one factor was determinative, but

when taken together, they made it unfair to require the defendant to

answer the charge. The indictment in Tomasetta is little different from

the indictment at hand. The victim in neither indictment is named.

While use of the mail is alleged in the indictment in this case, precise

or even reasonably certain dates of mailing are not disclosed. Neither

are any details with respect to the checks disclosed. All of this information was in the hands of the government and I suggest it is at least

as unfair to require Loayza to answer the indictment in this case as

the First Circuit held it was unfair for Tomasetta to answer in that

case.

This quotation from the Tomasetta court is just as applicable here:

On an indictment as vague as that at bar, it is possible, however unlikely, for a prosecutor to obtain a conviction based

wholly on evidence of an incident completely divorced from

that upon which the grand jury based its indictment. The

prosecution may not have the power to "roam at large" in

this fashion.

Tomasetta, 429 F.2d at 980 (citing Russell v. United States, 369 U.S.

749, 768-771 (1962)).

In United States v. Cecil, 608 F.2d 1294 (9th Cir. 1979), an indictment which gave the period of the conspiracy and named the conspirators in a charge of conspiring to distribute marijuana gave no other

facts. The court required the dismissal of the indictment stating "our

decision is based upon the absence of any factual particularity within

the indictment." In Cecil, as here, the trial court had recognized the

short-coming of the indictment and required a bill of particulars,

which the court of appeals held could not save the invalid indictment.

United States v. Curtis, 506 F.2d 985 (10th Cir. 1974), was a mail

fraud case involving a Computer Matching Institute, in which the

defendant's scheme to defraud was based on a false representation

that he could match by computer people looking for dates or mar-

 27
riages, when in fact he could not. The court required the dismissal of

the indictment because the unlawful scheme or plan was "masked, if

not concealed, by the conclusionary language of the indictment as

framed." p. 987. The court stated on p. 989 that"for all the indictment

shows, the grand jury may have had a concept of the scheme essentially different from that relied upon by the government before the

trial jury." That same defect is present in the case at hand, among

other reasons, because of the vagueness of the indictment with respect

to the names of the investors and any even minor detail with respect

to the checks.

In United States v. Nance, 533 F.2d 699 (D.C. Cir. 1976), the court

required dismissal of an indictment which had charged the obtaining

of something of value by false pretenses with intent to defraud in violation of D.C. Code § 22-1301(a). While the indictment stated the

name of the victim, the date of the false representation and the

amounts involved, it did not state what was the false representation,

describing the same only as "the false representations" (italics in original). The reason the court required the dismissal of the indictment

was that the United States Attorney would have a free hand to insert

the vital part of the indictment without reference to the Grand Jury,

p. 701. That same condition pertains here with respect to the unnamed

investors and inadequately described checks.

VI.

From the discussion set forth above, it follows that I would require

the indictment to be dismissed without prejudice to reindict Loayza.

I would not even find it necessary to decide the constitutional question but would require the dismissal because the indictment is in violation of Fed. R. Crim. P. 7(c)(1). Ashwander v. Tennessee Valley

Authority, 297 U.S. 288, 341, 347 (1936) (Justice Brandeis, concurring). Even if the key parts of the indictment are concise in that they

are terse, it is neither plain nor definite nor does it contain the essential facts constituting the offense charged as required by that rule.

If somehow or other a dependence on Rule 7(c) were not in order,

I would have no hesitation in holding the indictment invalid under the

grand jury requirement of the Fifth Amendment because the indict-

 28
ment does not sufficiently identify the acts with which Loayza was

charged and it follows that there is no way to tell from the indictment

whether Loayza was convicted of the same acts for which he was

indicted by the grand jury.

 29