JEROME T. BLEDSOE, PETITIONER V UNITED STATES OF AMERICA No. 90-5415 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 11-23) is reported at 898 F.2d 430. The opinion of the district court (Pet. App. 2-4) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 14, 1990, and a petition for rehearing was denied June 21, 1990. Pet. App. 24. The petition for a writ of certiorari was filed on August 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court impermissibly amended the indictment. STATEMENT Petitioner pleaded guilty in the United States District Court for the Northern District of West Virginia to one count of selling crack cocaine within 1000 feet of a secondary school, in violation of 21 U.S.C. 841(a)(1) and 845a(a). He was sentenced to a term of imprisonment of one year and one day, to be followed by a six-year term of supervised release. Pet. App. 6-7. Petitioner's guilty plea preserved his right to challenge the district court's deletion from the indictment of a word that the court found to be surplusage. The court of appeals rejected petitioner's challenge to the deletion and affirmed his conviction. Pet. App. 11-23. 1. The federal drug laws prescribe criminal penalties for the distribution of a controlled substance. 21 U.S.C. 841. Under 21 U.S.C. 845a(a), any person who distributes a controlled substance "on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school, or a public or private college, junior college, or university," may be punished by a term of imprisonment or fine, or both, up to twice the amount authorized by 21 U.S.C. 841. In this case, the grand jury returned a one-count indictment charging that petitioner, on or about July 6, 1988, in or near Wheeling, West Virginia, distributed approximately 0.37 grams of crack cocaine "within one thousand feet of the real property comprising a public secondary school," in violation of 21 U.S.C. 841(a)(1) and 845a(a). Pet. App. 12 n.1. The indictment did not specify the particular school. However, the only evidence presented in the case showed that the sale occurred at petitioner's residence and that the residence was located within 1000 feet of Central Catholic High School, a private school, in Wheeling. Id. at 17; Guilty Plea Hearing Tr. 24-30 (C.A. App. 42-48). In fact, six weeks before petitioner pleaded guilty, the government provided him with a tape recording that established where and when the offense had occurred. Pet. App. 6-7. 2. The government moved to amend the indictment to delete the adjective "public" describing the "secondary school" that was located within 1000 feet of the drug sale. The government argued that the presence of the word "public" was a clerical error, since the only secondary school near petitioner's home was the Central Catholic High School. The district court granted the government's motion, ruling that the correction of this error in the indictment was not a "substantial" amendment. Pet. App. 2-4. Petitioner then pleaded guilty, preserving his objection to the modification of the indictment. 3. The court of appeals sustained the district court's deletion of the word "public" from the indictment and affirmed petitioner's conviction. Pet. App. 11-23. It reasoned that any allegation concerning the public or private status of the school was mere surplusage, because "(a)ll secondary schools are either publicly or privately controlled" and, "therefore, the statute is violated by a sale within 1000 feet of any secondary school." Id. at 16. The court also found that petitioner was not prejudiced in any way by the deletion. His right to be tried only for an offense covered by the indictment returned by the grand jury was not impaired, because the only evidence presented in the case related to a sale that clearly occurred in petitioner's home, which was close to the Central Catholic High School, not the public high school. On this basis, the court concluded that "(t)he original indictment's reference to a public rather than private secondary school was clearly the result of mistake and not an intentional finding." Id. at 17. Finally, the court of appeals held that the amendment did not impair petitioner's right to notice of the charge against him, since he knew six weeks prior to the time he entered his guilty plea that the government's evidence related to a sale in his home on the day alleged in the indictment. Id. at 16-17. /1/ ARGUMENT Petitioner argues (Pet. 5-12) that the deletion of the adjective "public" constituted an impermissible substantive amendment of the indictment. The court of appeals correctly rejected this claim, and its decision does not conflict with any decision of this Court or of another court of appeals. Further review therefore is not warranted. 1. The basic offense with which petitioner was charged -- distribution of a controlled substance, in violation of 21 U.S.C. 841 -- was wholly unaffected by the deletion, since proximity to a school is not an element of that offense. Nor did the deletion affect the substance of the indictment insofar as it charged a violation of 21 U.S.C. 845a(a), which provides for enhanced punishment where the distribution of a controlled substance occurs within 1000 feet of a "public or private * * * secondary school." As the court of appeals held, Pet. App. 16, Section 845a(a) applies to the sale of drugs within 1000 feet of any secondary school, whether public or private. Because the statute is all-inclusive in this respect, public or private ownership is not an element of the offense. The district court therefore did not err in granting the government's motion to delete the adjective "public" on the ground that it was mere surplusage. Contrary to petitioner's contention, the district court's action was consistent with this Court's decisions in United States v. Miller, 471 U.S. 130 (1985); Stirone v. United States, 361 U.S. 212 (1960); and Ex Parte Bain, 121 U.S. 1 (1887). In Miller, the indictment charged two different means by which the defendant had violated the mail fraud statute, but the proof at trial established only one of those two means. The district court therefore granted the government's motion to strike the portion of the indictment alleging the other means. The Court held that the deletion did not violate the Grand Jury Clause of the Fifth Amendment, 471 U.S. at 135-138, observing that "(a) part of the indictment unnecessary to or independent of the allegations of the offense proved may normally be treated as a 'useless averment' that 'may be ignored.'" Id. at 136 (quoting Ford v. United States, 273 U.S. 593, 602 (1927)). The Court explicitly overruled any suggestion in Ex Parte Bain to the contrary. 471 U.S. at 140-145. The Court also distinguished Stirone on the ground that the proof at trial there established a means of violating the Hobbs Act that was different from (and therefore not included in) the charges in the indictment. Id. at 138-140. Miller supports the disposition of this case by the courts below. Because 21 U.S.C. 845a(a) only requires proof that the sale occurred within 1000 feet of a school, without regard to whether it was publicly or privately controlled, the government was not required to prove whether the school located within 1000 feet of the sale was public or private. Thus, the reference to the relevant secondary school as "public" was surplusage that could properly be deleted by the district court as "unnecessary" and a "'useless averment.'" Miller, 471 U.S. at 136. Moreover, "'an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'" United States v. Bailey, 444 U.S. 394, 414 (1980) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Deletion of the word "public" in this case undermined neither of these protections. As we have explained, the indictment contained the elements of the offense even after the word "public" was deleted, and petitioner received clear notice long prior to his guilty plea that the alleged drug sale occurred at his home, which was located near the Central Catholic High School. And because there accordingly is no doubt about what transaction was the subject of the indictment, petitioner could plead his conviction in this case as a bar to a subsequent prosecution for the same offense. Finally, the court of appeals concluded, after reviewing the record, that inclusion of the adjective "public" in the indictment "was clearly the result of mistake and not an intentional finding," since the only evidence in the case related to a sale at petitioner's home near the Central Catholic High School. Pet. App. 17. This determination establishes that the grand jury passed on the evidence of the offense with which petitioner was charged. Contrary to petitioner's assertion (Pet. 10), there was never any possibility that the grand jury actually intended to allege a drug sale within 1000 feet of the public high school, which was located some distance away. This fact-bound determination does not warrant further review. 2. Petitioner does not contend that the decision below conflicts with the decision of any other court of appeals in similar circumstances or that the lower courts are otherwise divided in their understanding of Miller and prior decisions of this Court, discussed above. In fact, other courts of appeals have sustained modifications of indictments in similar circumstances. For example, the courts have uniformly sustained amendments of indictments charging robbery of a federally insured bank under 18 U.S.C. 2113 to correct a misidentification of the insuring agency. See United States v. Slovacek, 867 F.2d 842, 847 n.4 (5th Cir.), cert. denied, 109 S. Ct. 2441 (1989); United States v. Johnson, 741 F.2d 1338, 1341 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985); United States v. Janoe, 720 F.2d 1156, 1158-1161 (10th Cir.), cert. denied, 465 U.S. 1036 (1983); United States v. Hoke, 610 F.2d 678, 679 (9th Cir. 1980). See also United States v. Field, 875 F.2d 130, 133 (7th Cir. 1989) (serial numbers of altered money orders); United States v. Kegler, 724 F.2d 190, 193-195 (D.C. Cir. 1984) (payee of forged check); United States v. Nicosia, 638 F.2d 970, 976 (7th Cir. 1981) (date of perjured testimony), cert. denied, 452 U.S. 961 (1982); United States v. Doby, 598 F.2d 1137, 1142 (8th Cir. 1979) (name of robbed bank); United States v. Powers, 572 F.2d 146, 152 (8th Cir. 1978) (type of illegal firearm). There accordingly is no circuit conflict requiring resolution by this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney OCTOBER 1990 /1/ Judge Widener dissented, believing that deletion of the word "public" impermissibly broadened the indictment. Pet. App. 19-23.