by Robert L. Weinberg, Adjunct Faculty, George Washington University Law School and University of Virginia School of Law; former President, District of Columbia Bar; former Partner, Williams and Connolly LLP
On July 3, 2013, the Seventh Circuit rendered the first appellate opinion on the issue of whether Twombly and Iqbal may be applied to adjudicate the sufficiency of federal criminal indictments in United States v. Vaughn. Coincidentally, that same day, ACS released my Issue Brief, “Applying the Rationale of Twombly to Provide Safeguards for the Accused in Federal Criminal Cases.” My Issue Brief analyzed the sufficiency of indictments under the very same criminal conspiracy statute involved in the Seventh Circuit case – 21 U.S.C. Section 846.
In Vaughn, the Seventh Circuit upheld the sufficiency of a bare-bones drug conspiracy indictment charged under 21 U.S.C. Section 846, which would plainly have been invalidated if the court had followed the Twombly holding that the allegation of a “conspiracy” is merely a “legal conclusion” and not a “factual allegation.” Twombly’s holding on this point was reaffirmed in Iqbal. Twombly had dismissed a civil treble damages complaint for violation of a criminal conspiracy statute, the Sherman Antitrust Act. As Iqbal noted:
“The Court held the plaintiffs’ complaint deficient under Rule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a ‘legal conclusion’ and, as such, was not entitled to the assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce.”
The Seventh Circuit rejected the application of the Supreme Court’s Twombly and Iqbal rulings to criminal indictments, on the theory that the Circuit should not “adopt the civil pleading standards articulated by the Supreme Court…to assess sufficiency of a criminal indictment.”