Amendment on Indictments for Offenses That
Could Have Been
Initiated by Information
An issue, as yet unresolved, exists concerning amendment of an
for an offense that could have been initiated by an information.
States v. Goldstein, 502 F.2d 526 (3d Cir. 1974), the Third
considered the issue in the case of an indictment for failure to
file an income
tax return by April 15, which was a misdemeanor. The evidence
showed that the
defendant had obtained an extension until May 7. The government
argued that had
the offense been prosecuted by information, it could have been
therefore similar liberality should apply to the indictment. The
in part upon the fact that Fed. R. Crim. P. 7(e), which permits the
informations, is silent about the amendment of indictments and,
implication must prohibit their amendment. The court also cited
v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert.
denied, 405 U.S.
1016 (1922), where the Fifth Circuit indicated that having chosen
to proceed by
indictment, the government is bound by the principles applicable to
In United States v. Pandilidis, 524 F.2d 644 (6th Cir.
cert. denied, 424 U.S. 933 (1976), the Sixth Circuit,
issue in virtually an identical case, upheld amendment of the
indictment alleged a failure to file by April 15 and the government
this with a bill of particulars setting out the extensions to file.
Circuit identified the rights involved as: (1) fair notice under
Amendment, (2) protection from double jeopardy under the Fifth
Amendment, and (3)
the right not to be held for an infamous crime except upon an
indictment by a
grand jury. The court held that the defendant's right to fair
notice was not
infringed because he was apprised be protected from double
jeopardy, since the
record of the case provided full protection. As for the right of
to be indicted by a grand jury, the court noted that although the
a constitutional right to be indicted for an infamous crime, the
which he was charged was not such an offense. "[S]ince the error
amendment to the indictment in this case did not reach
the appropriateness of reversal must be determined under Rule 52(a)
error]. . . ." See Pandilidis, at 649.
The correction of an error in an indictment by substitution of
superseding information, where the offense could have been
information, was upheld in United States v. Brewer, 681 F.2d
973 (5th Cir.
1982). See also United States v. Talbot 51 F.3d 183,
186 (9th Cir.
1995); United States v. Saussy, 802 F.2d 849, 852 (6th Cir.
cert. denied, 480 U.S. 907 (1987).
[cited in Criminal Resource Manual 206]