Filed: 7/18/2017 5:15 PM

Myla A. Eldridge
Clerk
Marion County, Indiana

STATE OF INDIANA ) MARION SUPERIOR COURT

) SS: CRIMINAL DIVISION
MARION COUNTY ) CAUSE NO. 49G24-1706-F6-021444

STATE OF INDIANA

V.
VVVVVVV

HOLIDAY BURKE,

Defendant.

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS

Defendant Holiday Burke, by counsel, respectfully requests that

the Court dismiss the charging information filed in the instant case

pursuant to LC. § 35—34—1—4. In support of this motion, Ms. Burke states

as follows:

BACKGROUND

In 2016, Ms. Burke was working With the Indiana Voter

Registration Project ("IVRP"). The IVRP registered approximately 45,000

people to vote in 2016. (RC. Aff., p. 12).

On June 9, 2017, the Office of the Marion County Prosecutor filed

the following charges against Ms. Burke:

COUNT I Procuring or Submission of False, Fictitious, or

Fraudulent Voter Registration Application 1.0. 3- 14-3—1 . 1(1)

On or about between May 1, 2016 and November 8,

2016, Holiday Burke did knowingly procure or submit voter
registration applications known by Holiday Burke to be
materially false, fictitious or fraudulent;
 COUNT II Counterfeiting LC. 35—43—5—2(1)(1)(D)

On or about between May 1, 2016 and November 8, 2016,

Holiday Burke, did knowingly make or utter a written
instrument, to—wit: one or more voter registration
applications; in such a manner that it / they
purports/purported to have been made by by [sic] another
person and / or by authority of one who did not give authority

DISCUSSION

I MS. BURKE MUST BE DISCHARGED BECAUSE THE COUNTS

AS CHARGED ARE UNCONSTITUTIONAL UNDER ART. 1, § 13
OF THE INDIANA CONSTITUTION

Art. 1, § 13 of the Indiana Constitution provides: "In all criminal

prosecutions, the accused shall have the right to a public trial, by an

impartial jury, in the county in which the offense shall have been

committed; to be heard by himself and counsel; to demand the nature

and cause of the accusation against him, and to have a copy thereof; to

meet the Witnesses face to face, and to have compulsory process for

obtaining Witnesses in his favor." It "provides a defendant with the

opportunity to know the accusations against him so that he may

anticipate the proof and prepare a defense in advance of trial." Malone U.

State of Indiana, 547 N.E.2d 1101, 1103 (Ind. Ct. App. 1989) (citation

omitted). "However, the formal and substantive requirements of a valid

indictment are defined in IND. CODE 35—34—1—2 which was enacted to

effectuate the constitutional guarantee." Id.

Ind. Code § 35—34—1—2(a) requires the information to "allege the

commission of an offense" by among other things "(2) setting forth the

nature and elements of the offense charged in plain and concise

language without unnecessary repetition . . . (7) stating the place of the

offense with sufficient particularity to show that the offense was

committed within the jurisdiction of the court where the charge is to be

filed." Ind. Code § 35-34-1-2(d) requires:

The indictment or information shall be a plain, concise, and

definite written statement of the essential facts constituting
the offense charged. It need not contain a formal
commencement, a formal conclusion, or any other matter
not necessary to the statement. Presumptions of law and
matters of which judicial notice is taken need not be stated.

Ind. Code § 35-34-1-4(a)(1) and (4) provide: "The court may, upon

motion of the defendant, dismiss the indictment or information upon any

of the following grounds . . . (1) [t]he indictment or information, or any

count thereof, is defective under section 6 [IC 35-34-1-6] of this chapter"

or "(4) [t]he . . . information does not state the offense with sufficient

certainty." Ind. Code § 35-34-1-6(a)(1) provides that an information is

defective when it "does not substantially conform to the requirements of

Section 2(a) [IC 35-34-1-2(a)] of this chapter."

It is longstanding Indiana law that when, as is the situation in the

instant case, a charging information merely parrots the words of the

criminal code without providing any facts that enable the defendant to

sufficiently be apprised of the charge, the information is insufficient and

must be dismissed. See, Robinson v. State, 232 Ind. 396, 112 N.E.2d 861

(1953).

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 The defendant has a right to require that a charge against
him be made with such certainty as will enable him to
distinguish it from other violations of the same statute, and
with such particularity as will enable him to anticipate the
proof which may be adduced against him and prepare to
meet it. Mayhew v. State (1920), 189 Ind. 545, 128 N. E.
599. The averments must be so clear and distinct that there
may be no difficulty in determining what evidence is
admissible thereunder. Mayhew 1). State, supra; Funk 11. The
State (1898), 149 Ind. 338, 49 N. E. 266; Padgett U. State
(1906), 167 Ind. 179, 78 N. E. 663; Large v. State (1928), 200
Ind. 430, 164 N. E. 263. The charge must be preferred with
such reasonable certainty as will enable the court and jury
to distinctly understand what is to be tried and determined,
and fully inform the defendant of the particular charge which
he is to meet. Large U. State, supra; It must be particular
and specific enough so that the grand jury may not base an
indictment on evidence of one crime and the petit jury base a
verdict on evidence of another. State of Indiana v. Brown
(1935), 208 Ind. 562, 196 N. E. 696.

See also, Bays U. State ofIndiana, 240 Ind. 37, 47, 159 N.E.2d 393, 398

(1959) ("it is sufficient to charge an offense if it states With particularity

the unlawful acts charged and further designates the particular felony

Which the accused intended to commit"); Fadell U. State of Indiana, 450

N.E.2d 109, 116 (Ind. Ct. App. 1983) (where assessor was accused of

paying ghost employees, trial court committed error by failing to dismiss

the information which failed to inform the defendant of the names of the

ghost employees he allegedly paid); (Sacks U. State of Indiana, 157 Ind.

App. 407, 409, 300 N.E.2d 356, 358 (1973) ('Facts constituting the crime

must be directly and positively alleged in the indictment").

"The constitutional right of the accused to be informed of the

nature and cause of the accusation against him requires that every
material fact and essential element of the offense be charged with

precision and certainty in the indictment or information." Bays, 240 Ind.

at 46, 159 N.E.2d at 397. The essential elements requiring material facts

in the present case for Count I are that Ms. Burke 1) did knowingly 2)

procure or submit voter registration applications 3) known by her to be

materially false, fictitious or fraudulent.

The State acknowledges that there were approximately 45,000

voter registration forms handled by the IVRP yet it fails to provide any

material facts regarding the elements of the alleged crime charged in

Count I. For example, it fails to identify the specific individual

registration form(s) which it claims Ms. Burke knew to be materially

false, fictitious or fraudulent or which she submitted procured. The State

fails to identify any material facts that would allow Ms. Burke to know if

she is defending against "procuring" or "submitting" false voter

registration forms. The State also fails to provide any material facts as to

why it believes Ms. Burke acted "knowingly" in submitting or procuring

false voter registration forms. Although the probable cause affidavit

claims Ms. Burke submitted 27,377 voter registration forms (Probable

Cause Affidavit, p. 2). The charging information fails to identify a specific

time period during which the false form(s) were submitted, Further, the

charging information fails to state where the crime allegedly occurred to

show that the Marion County Courts have jurisdiction over this matter.

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 Under Count II of the information, the essential elements requiring

support of material facts are that Ms. Burke 1) did knowingly 2) make or

utter 3) a written instrument, 4) that purports to have been made by

another person or 5) that it purports to have been made by the authority

of one who did not give authority. Again, the State fails to identify the

specific voter registration form(s) that support the charge against Ms.

Burke, let alone their number, dates, locations and what Ms. Burke

actually did with respect to them. The State fails to identify the

individual who purportedly made the instrument or who purportedly did

not grant authority to utter the instrument. Indeed, the very wording of

the charge suggests that the State is simply guessing that she violated

the law: “one or more voter registration applications; in such a manner

that it/they purports/purported to have been made by by [sic] another

person and/or by authority of one who did not give authority.” And yet

again, the State fails to allege any material facts that Ms. Burke acted

knowingly. Nor does the charging information provide any specific time

period during which this crime allegedly occurred nor does it provide a

location where the crime allegedly occurred so as to establish that the

Marion County courts have jurisdiction of the matter.

Without material facts, Ms. Burke is unable to properly defend

herself against the State's allegations. To mount a defense, Ms. Burke

needs to know the specific voter registration forms and/or illegal actions

the State is claiming so that she can determine if she had anything to do

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with that particular registration form or if she committed

"counterfeiting." Without a more specific charging information, Ms.

Burke will be denied her rights promised by Art. 1, § 13 of the Indiana

Constitution.

II MS. BURKE MUST BE DISCHARGED BECAUSE THE CHARGING

INFORMATION INFRINGES UPON HER RIGHTS PROMISED BY
THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND
DUE PROCESS AS PROMISED BY THE FOURTEENTH
AMENDMENT

As with the Indiana Constitution, the purpose of the Indiana

statutes setting forth the requirements for a charging information is to

protect a defendant's rights promised by the Sixth Amendment.

The Sixth Amendment to the United States Constitution and

Article I, § 13 require a defendant to be informed of the
nature and the cause of the accusation. In accordance
therewith, the State's charging information must be in
writing, "setting forth the nature and elements of the offense
charged in plain and concise language without unnecessary
repetition." Ind. Code § 35-34-1-2(a)(4).

Shuai v. State of Indiana, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012).

Additionally, "the validity of an [information] is subject to measurement

against general fourteenth amendment guarantees of due process." U.S.

ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983) (citing

Peters v. Kiff, 407 U.S. 493, 496, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972)).

As the Seventh Circuit has observed:

No matter how a state chooses to charge a criminal

defendant, the due process clause requires that a criminal
defendant receive "notice of the specific charge, and a chance
to be heard in a trial of the issues raised by that charge."
Cole v. Arkansas, 333 U.S. 196, 201, 92 L. Ed. 644, 68 S. Ct.

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with that particular registration form or if she committed

"counterfeiting." Without a more specific charging information, Ms.

Burke will be denied her rights promised by Art. 1, § 13 of the Indiana

Constitution.

II MS. BURKE MUST BE DISCHARGED BECAUSE THE CHARGING

INFORMATION INFRINGES UPON HER RIGHTS PROMISED BY
THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND
DUE PROCESS AS PROMISED BY THE FOURTEENTH
AMENDMENT

As with the Indiana Constitution, the purpose of the Indiana

statutes setting forth the requirements for a charging information is to

protect a defendant's rights promised by the Sixth Amendment.

The Sixth Amendment to the United States Constitution and

Article I, § 13 require a defendant to be informed of the
nature and the cause of the accusation. In accordance
therewith, the State's charging information must be in
writing, "setting forth the nature and elements of the offense
charged in plain and concise language without unnecessary
repetition." Ind. Code § 35-34-1-2(a)(4).

Shuai v. State of Indiana, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012).

Additionally, "the validity of an [information] is subject to measurement

against general fourteenth amendment guarantees of due process." U.S.

ex rel. Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983) (citing

Peters v. Kiff, 407 U.S. 493, 496, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972)).

As the Seventh Circuit has observed:

No matter how a state chooses to charge a criminal

defendant, the due process clause requires that a criminal
defendant receive "notice of the specific charge, and a chance
to be heard in a trial of the issues raised by that charge."
Cole v. Arkansas, 333 U.S. 196, 201, 92 L. Ed. 644, 68 S. Ct.

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 m
Defendant Holiday Burke respectfully requests that the Court

discharge her on the grounds that the charging information fails to

provide material facts in support of the essential elements of the crimes

alleged and Without those material facts, Ms. Burke is unable to

determine exactly what she is required to defend against, in

contravention of the protections offered by the Indiana Constitution and

the U. S. Constitution.

Respectfully Submitted,

/ 3/ Karen Celestino—Horseman
Karen Celestino-Horseman (Atty. No. 15762-49)
Of Counsel, Austin 85 Jones, P.C.
One North Pennsylvania
Suite 220
Indianapolis, IN 46204
317/632—5633 (Office)
3 1 7/ 630— 1040 (Facsimile)
Karen@KCHorseman.com

/s/ William R. Groth

William R. Groth
Of Counsel, Fillenwarth Dennerline
Groth 8L Towe, LLP
429 E. Vermont St.
Suite 200
Indianapolis, IN 46202
Tel: (317) 353—9363
Fax: (317) 351—7232
E—mail: WgrothGIDfdgtlaborlawcom
 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing has been delivered

through E-service using the Indiana E-filing System to Abigail Bohn,

Deputy Marion County Prosecutor, this 18th day of July 2017.

/s/ Karen Celestino—Horseman

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