The general rule is that indictments cannot be amended in substance. "An amendment to an indictment occurs when the charging terms of an indictment are altered." United States v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). This follows from the fundamental distinction between the information and the indictment (see this Manual at 235) which must be returned by a grand jury. If the indictment could be changed by the court or by the prosecutor, then it would no longer be the indictment returned by the grand jury. Indeed, in Russell v. United States, 369 U.S. 749, 769 (1962), the Court pointed out that a consequence of amending the indictment is that the defendant "could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him." "Thus, the Fifth Amendment forbids amendment of an indictment by the Court, whether actual or constructive." United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995), petition for cert. filed, (Jun. 10, 1996)(No. 95-9284).
The Supreme Court, reviewing the history of the grand jury, quotes Lord Mansfield on the subject:
[T]here is a great difference between amending indictments and amending informations. Indictments are found upon the oaths of a jury, and ought only to be amended by themselves; but informations are as declarations in the king's suit. An officer of the Crown has the right of framing them originally; he may, with leave, amend in like manner, as any plaintiff may do.
Ex parte Bain, 121 U.S. 1, 6 (1887). Cf. United States v. Miller, 105 S.Ct. 1811 (1985)(it does not constitute an unconstitutional amendment to an indictment to drop those allegations which are unnecessary to an offense that is clearly contained within it).
In one case, Stirone v. United States, 361 U.S. 212 (1960), the defendant was convicted of unlawful interference with interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. The indictment charged that the victim's contract was to supply ready-mix concrete from his Pennsylvania plant to be used in the erection of a steel mill in Allenport, Pennsylvania. Performance of the contract involved, according to the indictment, shipment of sand from various points in the United States to the victim's ready-mix concrete plant. The trial court permitted the government to offer evidence of the effect upon interstate commerce not only of the sand thus brought into Pennsylvania but also the interstate shipment of steel from the steel mill to be constructed from the ready-mix concrete.
The Supreme Court reversed the defendant's conviction on the ground that he was convicted of a different crime from that charged, in violation of his Fifth Amendment right to be indicted by a grand jury:
The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with Rider's concrete. . . Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same.
Stirone, at 217.
An amendment for the excising of surplusage that has the effect of narrowing a defendant's liability without changing the meaning of the charge as it was presented to the grand jury is permissible. In United States v. Whitman, 665 F.2d 313 (10th Cir. 1981), the court held it was proper for the government to strike the references to overvaluation of property in an 18 U.S.C. § 1014 count alleging false statements to a federally insured bank. A similar deletion was approved in United States v. Ramirez, 670 F.2d 27 (5th Cir. 1982), even though the defendant's theory of defense was thereby altered.
[cited in Criminal Resource Manual 206]