220

Grammar, Spelling, and Typographical Errors

The indictment will not be defective merely because the wrong tense of a verb is used or because of similar discrepancies in language. The test of an indictment remains whether it states the elements of the offense intended to be charged with sufficient particularity to enable the defendant to prepare his defense and to plead the judgment as a bar to any subsequent prosecution for the same offense. See United States v. Logwood, 360 F.2d 905 (7th Cir. 1966). "A typographical error in an indictment does not render the indictment invalid if the essential elements of a crime are contained therein." United States v. Upton, 856 F. Supp. 727, 739 n. 8 (E.D.N.Y. 1994), aff'd sub nom., United States v. Dragone, 78 F.3d 65 (2d Cir. 1996). An indictment will not be dismissed due to typographical errors unless a defendant can affirmatively show that some prejudice resulted from the errors. See United States v. Rich, 518 F.2d 980, 986 (8th Cir.), cert. denied, 427 U.S. 907 (1976). There was no prejudice to the defendant when an indictment misspelled the word "coca" to read "cocoa" in a distribution of cocaine count, Coppola v. United States, 217 F.2d 155 (9th Cir. 1954); when it was apparent from the face of the indictment that the use of "1972" rather than "1973" was a typographical error, United States v. Akers, 542 F.2d 770 (9th Cir.), cert. denied, 430 U.S. 908 (1976); or when an indictment omitted the defendant's first name in one count, United States v. Lerma, 657 F.2d 786, 789 (5th Cir. 1981), cert. denied, 455 U.S. 921 (1982). One court, though, refused to allow the date of an offense to be amended from "1981" to "1980" where the government only offered the subjective conclusion that the error was attributable to typographical error without any affidavit supporting such an allegation, as required by the local rules. See United States v. Randolph, 542 F. Supp. 11 (E.D. Tenn. 1982).