Case A25A0395 Filed 10/15/2024 Page 1 of 38

In the Court of Appeals of the State of Georgia

THE STATE OF GEORGIA, )

Cross-Appellant, )
) Case Nos. A25A0395,
) A25A0396, A25A0397,
versus ) A25A0398, A25A0399,
) A25A0400
)
JOHN EASTMAN, RAY STALLINGS SMITH, )
DONALD JOHN TRUMP, RUDOLPH )
WILLIAM LOUIS GIULIANI, ROBERT )
DAVID CHEELEY, MARK RANDALL )
MEADOWS, )
Cross-Appellees. )
)

BRIEF OF CROSS-APPELLANT

The State of Georgia, by and through Atlanta Judicial Circuit

District Attorney Fani T. Willis, hereby files its Brief of Cross-Appellant.

INTRODUCTION

The trial court erred by quashing six counts of the indictment in

this case, each of which alleged the crime of Solicitation of Violation of

Oath by Public Officer. The indictment more than sufficiently placed

Cross-Appellees on notice of the conduct at issue and allowed them to

prepare an intelligent defense to the charges. The indictment included

an abundance of context and factual allegations about the solicitations at

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issue, including when the requests were made, to whom the requests

were made, and the manner in which the requests were made.

The trial court erred by requiring the State to plead with specific

details as to the target1 crime of violation of oath by public officer, which

is not required for a charge of solicitation of violation of oath by public

officer. Solicitation, an inchoate offense, is complete before the target

crime commences and often well before the target crime is fully

considered or planned out. As a result, the target offense in an allegation

of solicitation does not need to be detailed as though it were the

completed, substantive crime itself. The only Georgia case concerning

this issue does not provide a clear analog to this case. Consideration of

cases from other jurisdictions, which is appropriate due to the lack of

Georgia precedent acknowledged by the trial court in its order below,

makes clear that the details of a target crime are not required to be

pleaded with particularity so long as a defendant is placed on notice of

1 There appears to be no common term of art to describe an offense that

is the object of a criminal solicitation. The offense being solicited has been
described as the “intended,” “solicited,” “targeted,” “completed,”
“objective,” “underlying,” and “predicate” offense, among other terms.
Because an act of solicitation seeks for another person to perform actions
that would result in a completed criminal offense as a consequence, this
brief will use the term “target offense.”

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what of his own conduct is at issue that constituted solicitation.

Moreover, facts and context from other counts of the indictment here

provide details that protect Cross-Appellees from double jeopardy and

allow them to prepare an intelligent defense.

JURISDICTIONAL STATEMENT

The Court of Appeals of Georgia, rather than the Supreme Court of

Georgia, has jurisdiction over this interlocutory appeal as the matters

involved are not reserved to the Supreme Court or conferred on other

courts by law. GA. CONST. Art. VI, § V, ¶ III. None of the charged offenses

are felonies punishable by death. GA. CONST. Art. 6, § 6, ¶ III (8). This

appeal does not involve the construction of “a treaty or of the Constitution

of the State of Georgia or of the United States and . . . the

constitutionality of a law, ordinance, or constitutional provision has [not]

been drawn in question. GA. CONST. Art. 6, § 5, ¶ II (1).

The State appeals under O.C.G.A. § 5-7-1 (c) (“In any instance in

which the defendant in a criminal case applies for and is granted an

interlocutory appeal as provided in Code Section 5-6-34 . . . the state shall

have the right to cross appeal on any matter ruled on prior to the

impaneling of a jury or the defendant being put in jeopardy.”). On May

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10, 2024, Defendants Michael Roman and David Shafer filed their notices

of appeal in the case that would be docketed in this Court under case

numbers A24A1595-1603.2 The State filed its notice of cross-appeal in

this case on May 23, 2024. (R. 1-5).3

ENUMERATION OF ERROR

1. Did the trial court err in granting a special demurrer by applying

the pleading requirements for compound or non-anticipatory

offenses to counts of the indictment charging criminal solicitation,

an inchoate offense?

2Other Defendants on the disqualification order subsequently filed their

notices of appeal on May 13, 2024 (Meadows, Latham), May 14, 2024
(Cheeley), May 16, 2024 (Trump, Clark), and May 17, 2024 (Floyd).
Cross-Appellees Ray Smith and John Eastman were not involved in the
original issue being appealed by the Defendants but were included in this
cross-appeal. Other Defendants subsequently filed their notices of appeal
on May 13, 2024 (Meadows, Latham), May 14, 2024 (Cheeley), May 16,
2024 (Trump, Clark), and May 17, 2024 (Floyd). Centennial Ins. Co. v.
Sandner, 259 Ga. 317 (1989) (allowing cross appeals against parties who
are not the appellant).

3Citations are made to the record in State v. Smith, Case No. A25A0396.
When a citation is made to another record, the citation will include the
Cross-Appellee’s name, and for citations to the record in the appeal
concerning the order on the disqualification motion, the case number in
this Court.

Brief of Cross-Appellant – Eastman et al. v. State of Georgia (A25A0395-0400) –

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PROCEDURAL HISTORY

On August 14, 2023, a Fulton County grand jury returned a 41

count indictment against Cross-Appellees and thirteen other individuals

alleging their participation in a conspiracy to illegally overturn the

results of Georgia’s 2020 presidential election. (R. 6-103). Included in the

indictment were six counts of Solicitation of Violation of Oath by Public

Officer (counts 2, 5, 6, 23, 28, and 38).

Cross-Appellee Smith filed several demurrers on September 11,

2023. (R. 212-46). Included was a special demurrer arguing that the six

solicitation counts failed to allege “what the oath of office was, or what

portion of the oath was violated.” (R. 224). Cross-Appellee Smith’s

demurrer focused on the completeness of the allegations of the solicited

felony, rather than the substantive offense of solicitation. The other

Cross-Appellees would adopt this demurrer in later filings. (Trump Case

No. A24A1599 R. 263; Giuliani Case No. A24A1601 R. 680, 698; Eastman

R. 659; Meadows Case No. A24A1598 R.693; Cheeley Case No. A24A1597

R. 560). The State responded that the indictment sufficiently alleged the

criminal solicitation offenses, as there was no support for the proposition

that the counts were required to allege the exact provision or provisions

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of the solicited persons’ oaths of office that the solicited conduct would

have violated, just as there is no requirement that an indictment for any

other solicited crime specify exactly how the target crime may have

ultimately been completed. The State also argued that the indictment as

a whole provided ample information allowing Cross-Appellees to prepare

an intelligent defense to the charges. (R. 710-12).

An omnibus hearing was held on December 1, 2023, which included

argument on this issue and post-hearing briefs were submitted and

considered by the trial court. (R. 744-99). The State included in its post-

hearing brief exhibits of several federal indictments alleging solicitation

offenses that were upheld by federal courts. (R. 764-85). A continuation

of the previous hearing was held on January 12, 2024.

The trial court issued its order on March 13, 2024. (R. 1228). The

trial court granted the special demurrer as to these counts and quashed

the solicitation charges (counts 2, 5, 6, 23, 28, and 38).4 The trial court

4 The trial court declined to strike the overt acts alleging criminal
solicitation because overt acts are not subject to the same pleading
standards as substantive counts and because only one overt act must be
proven at trial. (R. 1235-36) (citing Bradford v. State, 283 Ga. App. 75,
78-79 (2006); Hall v. State, 241 Ga. App. 454, 460 (1999); Thomas v. State,
215 Ga. App. 522, 523 (1994)).

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rejected Cross-Appellees’ argument that the counts were required to

recite the specific oaths at issue because there was only one oath

applicable to each public officer. (R. 1232-33). However, the trial court

found that the solicitation counts were deficient because they did not

detail exactly how the oaths would have been violated if the solicitations

had been successful. (R. 1232-35). In so doing, the trial court equated

inchoate offenses to compound offenses, holding that solicitation charges

must include details of the target felony with the same level of specificity

required for compound crimes such as felony murder. (R. 1233 n.5, 1234).

While each solicitation count charges that Cross-Appellees asked public

officers “to violate their oaths to the Georgia Constitution and to the

United States Constitution,” the trial court held that the counts’

“incorporation of the United States and Georgia Constitutions [was] so

generic as to compel [the trial court] to grant the special demurrers.” (R.

1233). This appeal comes as a cross-appeal under O.C.G.A. § 5-7-1 to the

appeal docketed under case numbers A24A1595-1603.

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STANDARD OF REVIEW

This Court reviews “a ruling on a special demurrer de novo to

determine the legal sufficiency of the allegations in the indictment.”

Eubanks v. State, 317 Ga. 563, 581 (2023).

ARGUMENT

I. The Indictment is sufficient to withstand special

demurrer.
The indictment supplied Cross-Appellees with sufficient

information to prepare a defense intelligently and to protect them against

double jeopardy. By extensively setting out the factual allegations and

context of the solicitations, the counts sufficiently put Cross-Appellees on

notice of the conduct with which they were charged.

The indictment set out six counts of Solicitation of Violation of Oath

by Public Officer (counts 2, 5, 6, 23, 28, and 38). Count 2 charged Cross-

Appellees Giuliani, Eastman, and Smith for their conduct as follows:

on the 3rd day of December 2020, unlawfully solicited,

requested, and importuned certain public officers then
serving as elected members of the Georgia Senate and present
at Senate Judiciary Subcommittee meeting, including
unindicted co-conspirator Individual 8, whose identity is
known to the Grand Jury, Senators Lee Anderson, Brandon
Beach, Matt Brass, Greg Dolezal, Steve Gooch, Tyler Harper,
Bill Heath, Jen Jordan, John F. Kennedy, William Ligon,
Elena Parent, Michael Rhett, Carden Summers, and Blake

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Tillery, to engage in conduct constituting the felony offense of

Violation of Oath by Public Officers, O.C.G.A. § 16-10-1, by
unlawfully appointing presidential electors from the State of
Georgia, in willful and intentional violation of the terms of the
oath of said persons as prescribed by law, with intent that said
persons engage in said conduct, said date being material
element of the offense.

(R. 72).
Count 5 charged Cross-Appellee Trump for his conduct as follows:
on or about the 7th day of December 2020, unlawfully
solicited, requested, and importuned Speaker of the Georgia
House of Representatives David Ralston, a public officer, to
engage in conduct constituting the felony offense of Violation
of Oath by Public Officer, O.C.G.A. § 16-10-1, by calling for
special session of the Georgia General Assembly for the
purpose of unlawfully appointing presidential electors from
the State of Georgia, in willful and intentional Violation of the
terms of the oath of said person as prescribed by law, with
intent that said person engage in said conduct.

(R. 74).

Count 6 charged Cross-Appellees Giuliani and Smith for their

conduct as follows:

on the 10th day of December 2020, unlawfully solicited,

requested, and importuned certain public officers then
serving as elected members of the Georgia House of
Representatives and present at a House Governmental
Affairs Committee meeting, including Representatives Shaw
Blackmon, Jon Burns, Barry Fleming, Todd Jones, Bee
Nguyen, Mary Margaret Oliver, Alan Powell, Renitta
Shannon, Robert Trammell, Scot Turner, and Bruce
Williamson, to engage in conduct constituting the felony
offense of Violation of Oath by Public Officer, O.C.G.A. § 16-

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10-1, by unlawfully appointing presidential electors from the

State of Georgia, in willful and intentional violation of the
terms of the oath of said persons as prescribed by law, with
intent that said persons engage in said conduct, said date
being material element of the offense.

(R. 74).

Count 23 charged Cross-Appellees Giuliani, Smith and Cheeley for

their conduct as follows:

on the 30th day of December 2020, unlawfully solicited,

requested, and importuned certain public officers then
serving as elected members of the Georgia Senate and present
at a Senate Judiciary Subcommittee meeting, including
unindicted co-conspirator Individual 8, whose identity is
known to the Grand Jury, Senators Brandon Beach, Bill
Heath, William Ligon, Michael Rhett, and Blake Tillery, to
engage in conduct constituting the felony offense of Violation
of Oath by Public Officer, O.C.G.A. § 16-10-1, by unlawfully
appointing presidential electors from the State of Georgia, in
willful and intentional violation of the terms of the oath of
said persons as prescribed by law, with intent that said
persons engage in said conduct, said date being material
element of the offense.

(R. 84).

Count 28 charged Cross-Appellees Trump and Meadows for their

conduct as follows:

on or about the 2nd day of January 2021, unlawfully solicited,

requested, and importuned Georgia Secretary of State Brad
Raffensperger, a public officer, to engage in conduct
constituting the felony offense of Violation of Oath by Public
Officer, § O.C.G.A. l6-10-1, by unlawfully altering, unlawfully

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adjusting, and otherwise unlawfully influencing the certified

returns for presidential electors for the November 3, 2020,
presidential election in Georgia, in willful and intentional
violation of the terms of the oath of said person as prescribed
by law, with intent that said person engage in said conduct.

(R. 87).

Count 38 charged Cross-Appellee Trump for his conduct as follows:

on or about the 17th day of September 2021, unlawfully

solicited, requested, and importuned Georgia Secretary of
State Brad Raffensperger, a public officer, to engage in
conduct constituting the felony offense of Violation of Oath by
Public Officer, O.C.G.A. 16-10-1, by unlawfully “decertifying
the Election, or whatever the correct legal remedy is, and
announce the true winner,” in willful and intentional
violation of the terms of the oath of said person as prescribed
by law, with intent that said person engage in said conduct.

(R. 95).
When a special demurrer is timely filed prior to trial, a defendant

is entitled to an indictment “perfect in form, . . . [but] an indictment does

not have to contain every detail of the crime to withstand a special

demurrer.” Kimbrough v. State, 300 Ga. 878, 881 (2017) (cleaned up). A

special demurrer is “without merit” where the allegations in the

indictment sufficiently inform a defendant “what actions of [his are] at

issue.” Davis v. State, 272 Ga. 818, 820 (2000). “[T]he purpose of an

indictment is to allow [the] defendant to prepare his defense intelligently

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and to protect him from double jeopardy.” Sanders v. State, 313 Ga. 191,

195 (2022) (citation omitted). An indictment satisfies due process where

it alleges the underlying facts with enough detail to put “the defendant

on notice of the crimes with which he is charged and against which he

must defend.” Dunn v. State, 263 Ga. 343, 345 (1993). Ultimately, the test

for whether an indictment is constitutionally sufficient:

is not whether it could have been made more definite and

certain, but whether it contains the elements of the offense
intended to be charged, and sufficiently apprises the
defendant of what he must be prepared to meet, and, in case
any other proceedings are taken against him for a similar
offense, whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.

Sanders, 313 Ga. at 195.

While each count of an indictment must within itself allege the

essential elements of the crime charged, when considering a special

demurrer, “the indictment is read as a whole,” and factual details alleged

in one count of the indictment can “provide[] the information [a

defendant] complains is missing from” another count. Id. at 196-197.

Moreover, while a defendant “may desire greater detail about [a charge]

. . . [i]t is not required that the indictment give every detail of the crime,”

and additional detail desired “may be supplemented . . . by the pretrial

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discovery [he] receives and any investigation [his] counsel conducts.” Id.

at 196. “[I]t is not necessary for the [S]tate to spell out in the indictment

the evidence on which it relies for a conviction.” Stapleton v. State, 362

Ga. App. 740, 747 (2021).

In general, the indictment in this case clearly alleged the

underlying facts with enough detail to sufficiently apprise Cross-

Appellants of what they must be prepared to meet at trial. As the trial

court acknowledged, the indictment included “an abundance” of factual

allegations in support of the charges. (R. 1234). In addition to the

essential elements of the offenses, each count alleged the following

details: (1) the date of the solicitation, which was made a material

element of each count (e.g., “on the 3rd day of December … said date

being a material element of the offense”); (2) to whom the solicitation was

made (e.g., “certain public officers then serving as elected members of the

Georgia Senate … including [list of Senators]”); (3) the forum in which

the solicitation was made (e.g., “at a Senate Judiciary Subcommittee

meeting”); and (4) the manner in which the solicited public officials would

violate their oaths of office (e.g., “by unlawfully appointing presidential

electors from the State of Georgia”). These details, which amount to far

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more than a barebones recitation of the statutory elements for the crime

of solicitation, clearly gave Cross-Appellees enough information to

prepare their defense intelligently by telling them precisely what they

were alleged to have done, when, and to whom. Cf. Sanders, 313 Ga. at

202 (granting special demurrer to criminal solicitation count based on

possession of a controlled substance where the indictment did not even

specify what drug the defendant requested another person to possess or

in what amount). These counts also protected Cross-Appellees from

double jeopardy, as they specified the acts that formed the basis of the

solicitations with sufficient detail.

Further, as observed by the trial court, there was only one oath that

could be violated by each public officer. The indictment therefore

informed each Cross-Appellee of what of their own specific actions

constituted the actus reus of the offenses charged, what date each Cross-

Appellee committed those acts, to whom the acts were directed, and

which oaths would have been violated had the public officials acquiesced

to their solicitations. The indictment also alleged the precise conduct that

Cross-Appellees requested the public officials to perform (i.e., unlawfully

appointing a slate of electors, calling a special session of the legislature

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for that purpose, etc.). As detailed below, the indictment was not required

to also allege precisely which portion of the oath would have been violated

or the State’s legal theory for exactly how that portion would have been

violated by the solicited conduct.

When read as a whole, the indictment provided an extremely clear

picture of the acts committed by Cross-Appellees. For purposes of a

special demurrer, one count of an indictment can provide details and

context complained to be missing from another count. Id. at 196. Count 1

of the indictment connected every other count together as components of

an over-arching conspiracy with a very specific goal: “unlawfully

chang[ing] the outcome of the [2020 presidential election in Georgia] in

favor of Trump.” (R. 19). Count 1’s factual allegations described the

solicitations of state legislators as using false statements to reject lawful

electoral votes and “to instead to unlawfully appoint their own

presidential electors for the purpose of casting electoral votes for Donald

Trump.” (R. 21). It provided the dates of the solicitations and where these

solicitations were made. (R. 21). Count 1 also detailed the solicitations

that Cross-Appellees and their co-conspirators made to public officials in

other states to unlawfully change the outcomes of the presidential

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election in those states. (R. 26-30, 34-37). Specifically, it recounted that

the Speaker of the Arizona House of Representatives refused to accept

Cross-Appellees Trump and Eastman’s solicitation because he believed

that it would violate his oath. (R. 26, 62). Count 1 also alleged that the

solicitation of Georgia officials, had it been successful, would have

resulted in acts that would “violate their oaths to the Georgia

Constitution and to the United States Constitution by unlawfully

changing the outcome of the November 3, 2020, presidential election in

Georgia in favor of Donald Trump.” (R. 20-21).

Moreover, as counsel for Cross-Appellee Smith conceded at the

December 1, 2023, hearing, there was only one oath applicable to state

legislators, which is found in O.C.G.A. § 24-1-4. (V8. at 143-44). That oath

states, “I do hereby solemnly swear or affirm that I will support the

Constitution of this state and of the United States and, on all questions

and measures which may come before me, I will so conduct myself, as

will, in my judgment, be most conducive to the interests and prosperity

of this state.” O.C.G.A. § 28-1-4. There is no other oath that could apply

to the conduct being solicited, as the trial court properly found. (R. 1231).

When read as a whole, the indictment sufficiently alleged Cross-

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Appellees’ intent to solicit conduct that would result in the crime of

violation oath of office by public officer by unlawfully participating in the

solicited actions in order to overturn the results of Georgia’s 2020

presidential election.

II. The target offenses of inchoate crimes, including

solicitation, are not required to be pleaded with exacting
specificity.

In striking the solicitation counts, the trial court made an improper

comparison between inchoate and compound crimes, which led it to seek

excessive detail concerning the target offense of violation of oath of office.

Violation of oath by public officer is a separate crime from solicitation of

violation of oath by public officer, with each requiring different elements

and necessitating different charging requirements.

A. Solicitation, as an inchoate crime, does not require the

same pleading standards as a completed offense.

Solicitation belongs to a class of inchoate offenses that includes

conspiracy and attempt. Mizrahi v. Gonzales, 492 F.3d 156, 160 (2d Cir.

2007) (citing Black's Law Dictionary 1111 (8th ed. 2004); Herbert

Wechsler et al., The Treatment of Inchoate Crimes in the Model Penal

Code of the American Law Institute: Attempt, Solicitation, and

Conspiracy, 61 Colum. L. Rev. 571, 572 (1961)). Inchoate crimes penalize

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actions taken in anticipation of a complete substantive crime and are

themselves worthy of punishment. Wayne LaFave, Criminal Law § 11.1

(6th ed. 2017). See English v. State, 290 Ga. App. 378, 380 (2008) (“The

crime of solicitation is complete when the accused, with intent, engages

in the overt act of asking another to commit a felony.”). Georgia’s inchoate

crimes—including criminal solicitation (O.C.G.A. § 16-4-7), criminal

attempt (O.C.G.A. § 16-4-1), and conspiracy to commit a crime (O.C.G.A.

§ 16-4-8)—are separate and distinct offenses from their “target”

substantive crimes. Inchoate crimes have different essential elements

and therefore different pleading requirements from their target crimes.

Adams v. State, 229 Ga. App. 381, 384 (1997) (criminal solicitation not a

lesser included offense of trafficking cocaine because essential elements

of criminal solicitation are intent that another person engage in conduct

constituting a felony and solicitation of the other person to engage in such

conduct); Dennard v. State, 243 Ga. App. 868, 871-72 (2000) (indictment

charging criminal attempt not required to allege elements of the target

child molestation but instead must simply allege intent to commit a crime

and a substantial step toward the commission of that crime); Sanders v.

State, 313 Ga. at 196-97 (indictment charging conspiracy to commit

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aggravated assault sufficient where count alleges a conspiracy and at

least one overt act; indictment not required to plead elements of

aggravated assault).

Solicitation has been described as “the most inchoate of the

anticipatory offenses.” Lafave at § 11.1. Because solicitation occurs so

early in the criminal planning stages of a crime, its prohibitions furthers

the purposes of the criminal law by allowing law enforcement to

intervene prior to harm being inflicted upon an individual. Id.; Ira

Robbins, Double Inchoate Crimes, 26 Harv. J. Leg. 1, 31(1989). The harm

from solicitation springs from the solicitation of unlawful conduct, not an

injury to a specific person or persons. See State v. Kenney, 233 Ga. App.

298, 299 (1998) (“[I]n an accusation for soliciting for a prostitute the gist

of the offense is the harm done society by such unlawful solicitation, and

not an injury to the individual solicited.”). The crime of solicitation is

complete the moment the accused, with requisite criminal intent,

engages in the act of requesting or otherwise attempting in any way to

cause another person to commit a crime. English, 290 Ga. App. at 380.

The solicitation may be complete well before the specifics of the target

crime are fully contemplated, and the specific manner in which the target

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offense might ultimately, if ever, be carried out is therefore irrelevant to

the solicitation itself.

Solicitation only requires that the solicited conduct be the result—

not that the entire plan or scheme is thought out or conveyed. See Id.;

State v. Johnson, 202 Or. App. 478, 485, 123 P.3d 304 (Or. Ct. App. 2005)

(in order to show defendant intended to “engage in specific conduct

constituting a crime” as required under Oregon’s criminal solicitation

statute, “the state needs to prove that a defendant has engaged another

person, intending that the other person engage in any specific conduct

that constitutes a crime.”); Gardner v. State, 41 Md. App. 187, 201, 396

A.2d 303, 311 (Md. Ct. Spec. App. 1979) (“The crime of solicitation

requires neither a direction to proceed nor the fulfillment of any

conditions.”).5

By contrast, unlike solicitation, a compound offense necessarily

depends entirely upon the completed commission of all the elements of

5 The trial court acknowledged in its order that there was little precedent
on this issue from Georgia courts. (R. 1232 n.4). Therefore, precedent
from foreign jurisdictions is particularly relevant as persuasive authority
for this Court. Hill v. Burnett, 349 Ga. App. 260, 263 (2019) (“It is well
settled that Georgia courts often consider law and decisions from other
jurisdictions as persuasive authority.”)

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some predicate crime. For example, felony murder (which the trial court

wrongly analogized to criminal solicitation) is complete only once all the

elements of some predicate felony have been committed and a death

results. Accordingly, all the elements of the predicate felony plus the

added element of the death of another must be alleged in the indictment.

This is because “[p]roof of the elements of the offense of felony murder

necessarily requires proof of the elements of the felony.” Woods v. State,

233 Ga. 495, 501 (1975). Because felony murder requires the completion

of some complete predicate felony as the proximate cause of a death—

unlike criminal solicitation, which requires only criminal intent and the

commission of some overt act—that predicate felony must be fully alleged

in the indictment. Stinson v. State, 279 Ga. 177, 178 (2005).

The trial court thus erred in applying pleading requirements for

compound crimes to the criminal solicitation counts of the indictment

because this fundamental difference in necessary proof results in

fundamentally different pleading requirements. Because criminal

solicitation does not require that a defendant fully realize the plan or

scheme of the solicited criminal conduct, the full details of the solicited

felony need not be alleged. “The [solicited] conduct must be specifically

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criminal . . . but details of how the crime is to be committed need not be

specified.” Johnson, 202 Or. App at 485. Indeed, in some cases, it would

be impossible to do so, and Georgia law specifically contemplates this

scenario: “It is no defense to a prosecution for criminal solicitation that

the person solicited could not be guilty of the crime solicited.” O.C.G.A. §

16-4-7(c). See also Lafave at § 11.1(d). For example, a jury could convict

a defendant of soliciting aggravated assault based on an indictment

alleging that the defendant, with requisite intent, simply stated, “take

care of this problem and mess him up,” without specifying whether the

implied assault should occur by shooting, stabbing, kicking, punching, or

any other conceivable method. See State v. Banks, 2005-Ohio-3433, ¶ 9

(Oh. Ct. App. 2005) (finding the evidence of solicitation of murder

sufficient when the defendant asked a person to “take care” of defendant’s

girlfriend with instructions to get her drunk and dump her body); State

v. Everett, 355 Ore. 670, 671, 330 P.3d 22 (Or. 2014) (upholding a

conviction of solicitation of aggravated murder when asked to “take care

of” and “get rid of” a potential witness). This is because the harm is

created at the moment the solicitor commits an overt act toward seeking

to have another commit a crime. The criminal intent that the target

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offense is committed separates a criminal solicitation from a benign

demand. O'Kelly v. State, 196 Ga. App. 860, 862 (1990) (“The inquiry is

directed not at the ears of the solicited and whether that person intends

to commit the solicited acts, but at the words and intent of the solicitor,

as shown by the words, the context, and other circumstances.”). Because

the details of the target crime need not be proven, it should not be

required that they be pleaded with the specificity of a completed non-

anticipatory offense.

Additionally, looking to other inchoate offenses in Georgia law, the

emphasis is on the factual details of the request, not the target felony

offense, for analyzing the sufficiency of an indictment. This Court upheld

an indictment for criminal attempt to commit murder even though it

failed to specify how the murder was to be carried out when the overt act

provided the information constituting the charged offense. Stapleton v.

State, 362 Ga. App. 740, 747 (2021). While the count could have “been

made more definite and certain,” further specificity was not needed

because the allegations in the indictment were sufficient to survive a

demurrer. Additionally, this Court upheld an indictment for criminal

attempt to traffic cocaine that simply alleged “intent to commit an offense

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defined in the Georgia Controlled Substances Act, to wit: Traffic[] in

Cocaine” and then factually described discussions of purchasing cocaine.

Davis v. State, 281 Ga. App. 855, 857 (2006). While the trial court filing

was a motion to dismiss, this Court used the special demurrer test

articulated by Georgia courts. Compare id. with Sanders, 313 Ga at 195.

Even though the criminal attempt to traffic cocaine count did not allege

the purity of cocaine as defined in O.C.G.A. § 16-13-31(a)(1), the

indictment gave sufficient notice with the underlying facts that it

“track[ed] the applicable statutes in a manner that is easily understood,

and . . . apprised [defendant] of both the crime and manner in which it

was alleged to have been committed.” Davis, 281 Ga. App. at 857. There

is no need to spell out all the elements of the target felony because the

target felony supplies the intent for the inchoate crime.

B. Sanders v. State is not analogous to this case, as its

solicitation count provided no facts regarding the target
felony whatsoever.

The only Georgia case concerning the level of detail necessary for a

solicitation count to survive special demurrer is Sanders v. State, 313 Ga.

191 (2022). The solicitation count in Sanders “fail[ed] to allege any

underlying facts.” Id. at 202 (emphasis added). Sanders stands for the

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proposition that an indictment containing no context or factual

allegations is insufficient. See also Kimbrough, 300 Ga. at 884 (quashing

a RICO indictment where the count in question alleged “nothing at all

about the nature of the connection” between the RICO enterprise and the

alleged pattern of racketeering activity).

Indeed, the solicitation count in Sanders merely alleged:

[O]n the 22nd day of January, 2018, with intent that another
person engage in conduct constituting a felony, [Sanders] did
request Chaz David Conley to commit the felony offense of
Violation of the Georgia Controlled Substances Act:
Possession of a Controlled Substance, contrary to the laws of
said State, the good order, peace and dignity thereof.

313 Ga. at 201. The count failed to include any underlying facts relating

to the request whatsoever. Id. at 202. It was the complete lack of factual

details regarding the solicitation—and the failure to clarify what of the

defendant’s own actions constituted the solicitation—that rendered the

indictment insufficient.

Here, unlike the solicitation count in Sanders, the indictment

alleges the factual details about how the requests were made, to whom

they were made, and when and where they made. As detailed above, the

indictment also alleges what actions the public officials were requested

to take that would have violated their oaths of office. Far from lacking

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“any underlying facts”, the indictment in this case alleged an

“abundance” of facts concerning the pertinent conduct. (R. 1234).

C. Federal precedent supports the conclusion that target

offenses of inchoate crimes do not need to be pleaded
with exacting specificity.

While Sanders is the only Georgia case discussing a special

demurrer to a charge of solicitation, federal courts have examined similar

issues in the context of motions to dismiss or motions for bills of

particulars numerous times. The analysis begins from the same point, as

the Georgia Supreme Court adopted the same fundamental test first set

forth nearly 130 years ago by the United States Supreme Court to

determine whether an indictment is constitutionally sufficient to

withstand a special demurrer:

[The test] is not whether [the indictment] could have been

made more definite and certain, but whether it contains the
elements of the offense intended to be charged, and
sufficiently apprises the defendant of what he must be
prepared to meet, and, in case any other proceedings are
taken against him for a similar offense, whether the record
shows with accuracy to what extent he may plead a former
acquittal or conviction.

Sanders, 313 Ga. at 195; Compare Id. with Cochran v. United States, 157

U.S. 286, 290 (1895). Where the bedrock principles underpinning

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challenges to an indictment are nearly identical under both Georgia and

federal law, federal authority is instructive.

Federal courts have held that solicitation charges are not required

to be pleaded with exacting detail regarding the target offense. As an

example, the Eleventh Circuit upheld an indictment charging use of the

internet to entice a minor child in violation of 18 U.S.C. § 2422(b) that

simply referred to several Alabama code sections without specifying how

the solicited conduct would have violated those code sections. United

States v. White, 660 Fed. Appx. 779 (11th Cir. 2016) (hereinafter Lancy

White). The Lancy White indictment alleged two counts of “soliciting

violations of the Code of Alabama, sections 13A-6-62, 13A-6-63, 13A-6-

64, and 13A-6-67.” (R. 778-79). Significantly, the indictment in Lancy

White alleged multiple Alabama crimes solicited by White, and several of

those crimes could have been committed in multiple ways. Id. Though the

indictment failed to specify the particular manner in which the solicited

conduct would have violated one of the Alabama provisions, the Eleventh

Circuit noted that the indictment set forth the essential elements of the

crimes charged, and, in the context of the record as a whole, the “only

subsections of the Alabama statutes charged in Counts 1 and 2 that could

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have applied to White’s conduct were those based on the ages of the minor

victims.”6 Lancy White, 660 Fed. Appx. at 782. Moreover, “each count of

the indictment charged the victim's age and the applicable Alabama sex

offense statutes.” Id. Accordingly, the court held that the indictment

provided “proper notice of the charges” and protected against double

jeopardy. Id.

The Seventh Circuit upheld an indictment that charged a white

supremacist with soliciting the murder of a jury foreperson. United States

v. White, 610 F.3d 956 (7th Cir. 2010) (hereinafter William White). The

indictment failed to allege any specific person being solicited or the

manner in which the juror was to be harmed. (R. 764-75). However, the

Seventh Circuit held that the indictment sufficiently stated “all the

elements of the crime charged,” adequately informed “the defendant of

6 Similar to Lancy White, only certain provisions of the federal and

Georgia constitutions pertain to Cross-Appellees’ conduct, and not the
“dozens” or “hundreds” that the trial court suggested. (R.1233). Lancy
White further underscores the point, acknowledged even by the trial
court, that an indictment is sufficient if it merely provides “enough
additional detail to create a much smaller universe of possibilities.” (R.
1234 n.7) (citing Wiggins v. State, 272 Ga. App. 414 (2005) (vacated on
other grounds by Wiggins v. State, 280 Ga. 268 (2006))). Cross-Appellees
need not worry about clauses such as those relating to taxation or the
military that obviously do not apply. There is a confineable class of
constitutional provisions for which Cross-Appellees are on notice.

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the nature of the charges so that he” could prepare a defense, and allowed

“the defendant to plead the judgment as a bar to any future

prosecutions.” William White, 610 F.3d at 958. The court noted that “the

presence or absence of any particular fact [in the indictment] is not

dispositive,” and the indictment was sufficient to make the defendant

“aware of the specific conduct against which he will have to defend

himself at trial.” Id. at 959.

Finally, the Northern District of Georgia upheld the sufficiency of

an indictment charging a deputy sheriff for soliciting employees of the

Fulton County Sheriff’s Office to violate 18 U.S.C. § 242. United States v.

Hill, No. 1:09-CR-199-TWT-CCH-1, 2009 U.S. Dist. LEXIS 123059 (N.D.

Ga. Dec. 11, 2009). The indictment (1) did not allege any specific persons

the defendant intended to solicit; (2) did not allege any specific provision

of Section 242 that the defendant solicited anyone to violate, i.e.,

subjecting a person to “deprivation of any rights, privileges, or

immunities” protected by law or subjecting any person “to different

punishments, pains, or penalties” on account of status as an alien, or by

reason of color or race; (3) did not allege any specific right, privilege, or

immunity provided by law that the defendant solicited anyone to deprive

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an inmate of; and (4) did not allege how the defendant intended that his

subordinates go about violating Section 242, i.e. by excessively

restraining an inmate, by striking them, by tasing them, or something

else. (R. 782-85). The district court noted that 18 U.S.C. § 373 “requires

only that Defendant have endeavored to induce or persuade another

person to commit a felony involving physical force against either property

or a person.” Hill, 2009 U.S. Dist. LEXIS 123059 at *22. The court held

that the indictment was not required to allege more than it did; as

alleged, it was “sufficient to inform Defendant of the offense charged

against him and to allow him to mount a defense to the charge.” Id. at

*23. The indictment also sufficiently provided “protection to Defendant

against any future prosecution for the same offense.” Id. at *24.

None of the above indictments alleged how the target offense was

to be performed, but each was upheld as sufficient to allow the defendants

to mount a defense. In each case, the factual details of the request, which

demonstrated the defendants’ intent that some other person carry out the

target crimes, were sufficient to satisfy due process and double jeopardy

concerns. The indictment here is consistent with this principle, as the

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requests as alleged provide the information necessary for Cross-

Appellees to mount a defense and protect against duplicate charges.

Similarly to Georgia courts, federal courts have concluded that the

target felonies for other inchoate crimes need not be precisely alleged. An

indictment for conspiracy need not allege the target offense with the

same precision as the substantive count. United States v. Yefsky, 994 F.2d

885, 893 (1st Cir. 1993) (citing Wong Tai v. United States, 273 U.S. 77,

81 (1927); United States v. Fusaro, 708 F.2d 17, 23 (1st Cir. 1983)).

“Abundant case law supports the proposition that it is not necessary to

allege in the conspiracy count all of the elements of the offense that is the

object of the conspiracy with the same technical precision as would be

necessary in a substantive count.” United States v. Perkins, 748 F.2d

1519, 1525 (11th Cir. 1984). In Perkins, the Eleventh Circuit upheld a

conspiracy count in an indictment that failed to identify the judicial

proceeding the defendant conspired to obstruct because he had been

adequately advised of the nature of the proceeding in the factual

allegations. 748 F.2d at 1525-26. The necessary information to place a

defendant on notice is the conduct that led to the inchoate crime.

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As the United States Supreme Court acknowledged in considering

conspiracy charges, “the conspiracy is the gist of the crime, a certainty,

to a common intent, sufficient to identify the offense which the

defendants conspired to commit, is all that is requisite in stating object

of the conspiracy.” Williamson v. United States, 207 U.S. 425, 447 (1908).

It further stated:

It was not essential to the commission of the crime that in the

minds of the conspirators the precise persons to be suborned,
or the time and place of such suborning, should have been
agreed upon, and as the criminality of the conspiracy charged
consisted in the unlawful agreement to compass a criminal
purpose, the indictment, we think, sufficiently set forth such
purpose.

Id. at 449. Succinctly, “[t]he rules of criminal pleading do not require the

same degree of detail in an indictment for conspiracy in stating the object

of the conspiracy as if it were one charging the substantive offense.”

Thornton v. United States, 271 U.S. 414, 423 (1926). As noted above, this

is in accord with the general purpose of inchoate crimes. The harm is

caused by the anticipatory action itself, whether it be a solicitation, an

overt act constituting an attempt, or the agreement to join in a criminal

conspiracy. The target felony merely indicates intent. This Court should

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analyze the indictment in this case in accordance with federal precedent

on the specificity required for alleging inchoate crimes.

Both Georgia and federal courts agree that the pleading

requirements for inchoate crimes cannot be equated to the pleading

standards for compound or non-anticipatory crimes. The trial court

therefore erred in applying inapplicable pleading standards to the six

counts of Solicitation of Violation of Oath by Public Officer in this

indictment. Because the indictment here provides an “abundance” of

context and factual allegations about Cross-Appellees’ conduct, the

indictment is sufficient to withstand special demurrer.

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CONCLUSION

For the above reasons, the State of Georgia submits this Honorable

Court should reverse the trial court’s order and reinstate counts 2, 5, 6,

28, 36, and 38 of the indictment.

CERTIFICATION OF WORD COUNT

This submission does not exceed the word count imposed by Rule

24.

Respectfully submitted,

/s/ ALEX BERNICK

ALEX BERNICK 730234
Assistant District Attorney
Office of the District Attorney
Atlanta Judicial Circuit
136 Pryor Street SW, Fourth Floor
Atlanta, GA 30303
Tel. (404) 612-4981/ Fax (404) 893-2769
[email protected]

F. MCDONALD WAKEFORD 414898

Chief Senior Assistant District Attorney
Office of the District Attorney
Atlanta Judicial Circuit
136 Pryor Street SW, Fourth Floor
Atlanta, GA 30303
Tel. (404) 612-4981/ Fax (404) 893-2769
[email protected]

JOHN W. “WILL” WOOTEN 410684

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Deputy District Attorney

Office of the District Attorney
Atlanta Judicial Circuit
136 Pryor Street SW, Fourth Floor
Atlanta, GA 30303
Tel. (404) 612-4981/ Fax (404) 893-2769
[email protected]

GRANT ROOD 955552

Deputy District Attorney
Office of the District Attorney
Atlanta Judicial Circuit
136 Pryor Street SW, Fourth Floor
Atlanta, GA 30303
Tel. (404) 612-4981/ Fax (404) 893-2769
[email protected]

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CERTIFICATE OF SERVICE

I hereby certify that there is a prior agreement with counsel for the
Appellants, as listed below, to allow documents in a PDF format sent via

email to suffice for service, as authorized under Rule 6(b)(2). To that end,
on the 15th day of October, 2024, I served a copy of the foregoing Brief
upon the following counsel of record via e-mail:

Attorneys for Defendant Trump:

Steven Sadow
260 Peachtree Street NW
Suite 2502
Atlanta, Georgia 30303
[email protected]

Jennifer Little
400 Galleria Parkway
Suite 1920
Atlanta, Georgia 30339
[email protected]

Attorneys for Defendant Giuliani:

L. Allyn Stockton, Jr.
P.O. Box 1550
Clayton, Georgia 30525
[email protected]

Attorney for Defendant Eastman:

Wilmer Parker III
1360 Peachtree Street NE
Suite 1201
Atlanta, Georgia 30309

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[email protected]

Attorney for Defendant Meadows:

James D. Durham
104 West State Street
Suite 200
Savannah, Georgia 31401
[email protected]

Attorneys for Defendant Smith:

Donald F. Samuel
Amanda R. Clark Palmer
Kristen W. Novay
3151 Maple Drive NE
Atlanta, Georgia 30305
[email protected]
[email protected]
[email protected]

Attorneys for Defendant Cheeley:

Christopher Anulewicz
Jonathan DeLuca
Wayne Beckerman
Marc. J. Ayers
Promenade Tower
1230 Peachtree Street NE
Atlanta, Georgia 30309
[email protected]
[email protected]
[email protected]
[email protected]

Richard Rice
3151 Maple Drive NE
Atlanta, Georgia 30305
[email protected]

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/s/ ALEX BERNICK

ALEX BERNICK
Assistant District Attorney
Office of the District Attorney
Atlanta Judicial Circuit
136 Pryor Street SW, Fourth Floor
Atlanta, GA 30303
Tel. (404) 375-0281 / Fax (404) 893-2769
[email protected]

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