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
v. United States, 301 U.S. 492 (1937); United States v.
Brewer, 681 F.2d 973, 974 (5th Cir. 1982). When several
offenses are charged in separate counts, the fact that the
penalty upon conviction may exceed one year does not require
by indictment. See United States v. Johnson, 585 F.2d
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
cert. denied, 454 U.S. 815 (1980). A fine, even one
of a million dollars, cannot be considered an infamous punishment.
See United States v. Armored Transport, Inc., 629
1313 (9th Cir.), cert. denied, 450 U.S. 965 (1980). If,
waiver of indictment is obtained from a corporation, the waiver
executed by an officer empowered to act for the corporation. The
necessary to show that the officer is so empowered varies from
PRACTICE TIPS: The prosecuting attorney files the information
with the presiding judge or magistrate but the filing does not
until the defendant waives prosecution by indictment pursuant to
R.Crim.P. 7(b). If the prosecutor wants an arrest warrant to issue
upon the information, Rule 5 of the Federal Rules of Criminal
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
there may be instances where the prosecutor may wish to inform the
jury when an information has been filed (such as when a defendant
testified before the grand jury under the terms of a plea agreement
pleads to an information).
Although an indictment is not required, a grand jury may
an indictment for a misdemeanor. See Hammond v.
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.
(1983). However, having chosen to proceed by indictment rather than
information in such a case, the prosecution is bound by the
governing indictments. See United States v.
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
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
finding if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced." Fed. R.
P. 7(e). On the other hand, the benefit to charging a misdemeanor
indictment is that it allows the use of the grand jury process to
evidence, and it provides the grand jury imprimatur on a case.
the general rule is that an indictment may not be amended
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).