Opinion
CAUSE NO. IP 03-0087-CR-01-T/F
October 30, 2003
ENTRY ON GOVERNMENT'S MOTION TO CORRECT INDICTMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Defendant is charged with the illegal possession of a firearm in violation of 18 U.S.C. § 922(g). The Government moves to correct or amend the Indictment. The requested change is quite simple: the Indictment alleges that the Defendant possessed the firearm in question "On or about February 27, 2002"; the Government asserts that the year portion of this date is a typographical or scrivener's error and that the correct year is 2003. Rather than resubmitting the case to the Grand Jury to obtain a superseding indictment, as it is authorized to do, the Government seeks a modification of the date through a court order. The Defendant opposes the motion.
The Government implies that a re-presentation of this matter to the Grand Jury would delay the trial which is currently scheduled for November 3, 2003. The Government's motion seeking modification of the date in the Indictment was filed on October 28, 2003. There is no information before the court regarding when the problem with the date in the Indictment was first noticed by the attorney for the Government. However, the Defendant's opposition to the motion does not contend that it is too late; rather, the Defendant asserts that the Fifth Amendment to the United States Constitution precludes any material modification of an Indictment by the court by indicating that only the Grand Jury can bring a charge of an infamous crime. The Government concedes that the Indictment cannot be substantively amended but asserts that typographical and minor clerical errors in an indictment can be corrected by court orders. An impressive array of cases supports the Government's argument.
The Seventh Circuit has held that "either an amendment or a variance will be allowed to stand if it does not change an `essential' or `material' element of the charge so as to cause prejudice to the defendant." United States v. Cina, 699 F.2d 853, 857 (7th Cir. 1983) (citations omitted). In Cina, the Seventh Circuit held that the trial court did not violate the defendant's Fifth Amendment right when the court amended the indictment by changing the date of the commencement of the alleged conspiracy to two years earlier than originally indicated. The Seventh Circuit defined an "essential" or "material" element of a crime as "one whose specification with precise accuracy is necessary to establish the very illegality of the behavior and thus the court's jurisdiction." Id. at 859. Further, the court noted, "[o]nly in rare cases is time a material element of the offense charged." Id. (citing Wharton's Criminal Procedure § 511 (12th ed. 1975)).
In United States v. Nicosia, 638 F.2d 970, 976 (7th Cir. 1980), the Seventh Circuit held that the trial court did not err when it amended the indictment to correct a typographical error, noting that the change was not material to the charge and a "mere matter of form." The trial court had corrected the date of a witness's testimony in the indictment from August 20, 1977 to October 20, 1977.
The Seventh Circuit has applied similar reasoning in constructive amendment cases. In United States v. Folks, the court held that "[a] reasonable change in the date specified in an indictment does not, in general, impermissibly amend the indictment." 236 F.3d 384, 391 (7th Cir. 2001) (citing United States v. Leichtnam, 948 F.2d 370, 376 (7th Cir. 1991)). In another constructive amendment case, the Seventh Circuit held that "charging that an act occurred on one date and proving that it occurred at a different time is a classic variance, which does not change the nature of the crime alleged." United States v. Krilich, 159 F.3d 1020, 1027 (7th Cir. 1998) (citing Nicosia, 638 F.2d at 976). In Krilich, the indictment charged that a bribe was solicited on April 1985; however, witnesses at trial testified that the bribe occurred in the months before April 1984. The court held that the Fifth Amendment was not violated because everyone agreed that the bribe was offered in exchange for support for an April 1984 vote; thus, the court termed the date on the indictment a "blunder." Id.
The Government's motion correctly notes that the record in this case demonstrates that the Defendant has received numerous notices that February 27, 2003, rather than 2002, is the real date in question in this case. The correct date of February 27, 2003 appeared in the Criminal Complaint upon which the Defendant was arrested to formally initiate this prosecution. It was also used at his initial appearance on the Complaint on May 8, 2003. Testimony about the seizure of the firearm in question from a motor vehicle he was driving on that date was presented at his probable cause and detention hearings on May 12, 2003. The Defendant himself used that date when he filed his motion to suppress evidence and statements on June 26, 2003. The Government used that date in its proffer of evidence in its response to that motion, filed on July 3, 2003. The court's preliminary entry on the motion to suppress, issued on August 12, 2003, used the February 27, 2003 date. That 2003 date was used repeatedly during the testimony on the suppression motion, held on August 29, 2003, and attended by the Defendant and his counsel. As an aside, during that hearing, the Defendant offered evidence about the registration of certain motor vehicles during 2003, not 2002, and the other evidence he offered related to events which occurred on February 27, 2003. The Government contends that it provided discovery material to the Defendant which made it clear that the events in question occurred on February 27, 2003, rather than 2002, but those materials are not before the court. Even without consideration of the discovery materials, it can hardly be said that the Defendant had not been clearly notified that he is facing a charge of being in illegal possession of a firearm on or about February 27, 2003, rather than 2002. His objection to the modification of the Indictment does not rely on a lack of notice.
The Government also asserts that the 2003 date was presented to the Grand Jury. But, as the Defendant notes, the Government does not support that assertion with any evidence of what the Grand Jury heard. Consequently, the court cannot rely on that proffer in evaluating the Government's motion.
Nor does the Defendant contend that he faces a double jeopardy concern if the date in the Indictment is changed, that is, that he could be convicted for possession of the firearm because of his conduct on or about February 27, 2003, and that he might later be prosecuted for possessing the same firearm on or about February 27, 2002, based on the same conduct for which he is being prosecuted in this case. Rather, his expressed concern is that the alteration of the date would be a material amendment of the Indictment.
In support of his argument, Defendant cites Ex parte Bain, 121 U.S. 1 (1887), and Stirone v. United States, 361 U.S. 212 (1960). Stirone, however, is not instructive in the present case because the Stirone Court examined the issue of whether a charge in an indictment could be broadened by an amendment. The issue presently before the court involves a typographical error in the indictment. In Bain, the Supreme Court held that the defendant's Fifth Amendment right was violated when the trial court removed from the indictment words it regarded as mere surplusage. The Supreme Court's opinion in Bain could have provided support for the Defendant's argument had the opinion not been substantially overruled by later cases, such as United States v. Miller, 471 U.S. 130 (1985). In Miller, the Court explained its holding in Bain as follows:
Bain may be best understood in terms of two distinct propositions. Most generally, Bain stands for the proposition that a conviction cannot stand if based on an offense that is different from that alleged in the grand jury's indictment. But more specifically, Bain can support the proposition that the striking out of parts of an indictment invalidates the whole of the indictment, for a court cannot speculate as to whether the grand jury had meant for any remaining offense to stand independently, even if that remaining offense clearly was included in the original text.Id. at 142. The Miller Court stated that while the former proposition has been reaffirmed by cases after Bain, id. at 142-43, the latter proposition did not survive long after the Bain opinion was written, id. at 144. The Court expressly overruled the latter proposition: "To the extent Bain stands for the proposition that it constitutes an unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived. To avoid further confusion, we now explicitly reject that proposition." Id. At the same time, the Miller Court reaffirmed the proposition in Bain that material alteration is prohibited: "`An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury.'" Id. at 144-45 (quoting United States v. Ballard, 322 U.S. 78, 90-91 (1944) (Stone, C.J., dissenting)).
The court concludes that the modification of the date is not a material matter. It is true that the illegal possession of a firearm can be a continuing offense, so that the prohibited possession of such a weapon at a particular point in time can be some evidence that it may have also been possessed at an earlier point in time. Nonetheless, it is clear in the context of this case that the Government is prosecuting the Defendant for the illegal possession of a firearm, which was discovered in a Chevrolet Cavalier that he was driving on the afternoon of February 27, 2003. The prosecution focuses on the events of that day, and the possession that is the heart of the offense charged is one that purportedly occurred within a small time frame around certain events on that afternoon. The 2002 date that appears in the Indictment is nothing more than a simple typographical error, and its modification does not diminish any substantial rights of the Defendant, nor does it violate the proscriptions of the Fifth Amendment. See Cina, 699 F.2d at 859; Nicosia, 638 F.2d at 976; Krilich, 159 F.3d at 1027.
The Government's Motion to Correct the Indictment is GRANTED and the Defendant's objection to that correction is DENIED. By virtue of this order, the Indictment is corrected so that the affected portion of it will now read as follows:
The Grand Jury charges that:
On or about February 27, 2003, in Marion County, Indiana, within the Southern District of Indiana, Defendant, JONATHON DOTSON,. . ., did knowingly possess in and affecting commerce, any firearm or ammunition, to wit: a Jennings Firearms, model J-22, 22 caliber handgun, Serial Number 690015, in violation of Title 18, United States Code, Section 922(g)(1).
The jurors will be instructed that this is the charge against the Defendant and will be asked to return a verdict on that charge, assuming the Government can produce enough evidence to submit the case to the jury.
ALL OF WHICH IS ORDERED.