Opinion
Criminal No. 05-20044.
October 28, 2005
ORDER
On this 28th day of October 2005, there comes on for consideration separate defendant's, White Dairy Ice Cream, dba Tri-temp Distribution ("White Dairy"), Motion to Dismiss (Doc. 15) and the government is objecting (Doc. 22).
The court has reviewed the filings in this case. It appears that White Dairy was not named correctly in the Indictment. The correct name of White Dairy is "White Dairy Ice Cream Co., Inc." Because this is a misnomer without any allegation that another entity has been misidentified or that White Dairy Ice Cream Co., Inc. has been prejudiced in not receiving notice or be unable to prepare a defense, the misnomer can be corrected by an amendment to the Indictment. See United States v. Fawcett, 115 F.2d 764 (3d. Cir. 1940) (holding that an amendment to indictment is permitted when change concerns matters of form rather than substance; name in indictment is matter of form); United States v. Denny, 165 F.2d 668 (7th Cir. 1947) (holding that an amendment to correct a misnomer by an incorrect spelling of last name in indictment is permissible), cert. denied, 333 U.S. 844 (1948). Upon due consideration, the motion to dismiss the indictment is DENIED.
IT IS SO ORDERED.