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206

When an Information May be Used

An information may be used when the defendant has waived an indictment. See this Manual at 209. An information may also be used when the offense charged is punishable by imprisonment for one year or less. See Duke v. United States, 301 U.S. 492 (1937); United States v. Brewer, 681 F.2d 973, 974 (5th Cir. 1982). When several misdemeanor offenses are charged in separate counts, the fact that the aggregate penalty upon conviction may exceed one year does not require prosecution by indictment. See United States v. Johnson, 585 F.2d 374, 377 (8th Cir.), cert. denied, 440 U.S. 921 (1978); United States v. Kahl, 583 F.2d 1351, 1355 (5th Cir. 1978).

If the defendant is a corporation, it may ordinarily be prosecuted by information since corporations are not amenable to imprisonment, but only to a monetary penalty. See United States v. Yellow Freight Sys., 637 F.2d 1248, 1253-55 (9th Cir.), cert. denied, 454 U.S. 815 (1980). A fine, even one potentially of a million dollars, cannot be considered an infamous punishment. See United States v. Armored Transport, Inc., 629 F.2d 1313 (9th Cir.), cert. denied, 450 U.S. 965 (1980). If, however a waiver of indictment is obtained from a corporation, the waiver must be executed by an officer empowered to act for the corporation. The proof necessary to show that the officer is so empowered varies from district to district.

PRACTICE TIPS: The prosecuting attorney files the information with the presiding judge or magistrate but the filing does not occur until the defendant waives prosecution by indictment pursuant to Fed R.Crim.P. 7(b). If the prosecutor wants an arrest warrant to issue based upon the information, Rule 5 of the Federal Rules of Criminal Procedure requires that the information be signed under oath or that the information be accompanied by an affidavit. Although it is not a necessity to involve the grand jury in the return of an information, there may be instances where the prosecutor may wish to inform the grand jury when an information has been filed (such as when a defendant has testified before the grand jury under the terms of a plea agreement and pleads to an information).

Although an indictment is not required, a grand jury may return an indictment for a misdemeanor. See Hammond v. Brown, 323 F. Supp. 326, 332 (N.D. Ohio), aff'd, 450 F.2d 480 (6th Cir. 1971). See also United States v. $8,850, 461 U.S. 555, 560 (1983). However, having chosen to proceed by indictment rather than by information in such a case, the prosecution is bound by the principles governing indictments. See United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974). See also this Manual at 236. But see United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975)(amending a misdemeanor indictment by a bill of particulars was held to be harmless error.) See this Manual at 237. advantage to charging a misdemeanor by information rather than indictment is that it may be amended "at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Fed. R. Crim. P. 7(e). On the other hand, the benefit to charging a misdemeanor by indictment is that it allows the use of the grand jury process to obtain evidence, and it provides the grand jury imprimatur on a case. However, the general rule is that an indictment may not be amended substantively, except by resubmission of the case to the grand jury. Stirone v. Unites States, 361 U.S. 212, 217-19 (1960). See also United States v. Miller, 471 U.S. 130, 140 (1985).