An issue, as yet unresolved, exists concerning amendment of an indictment for an offense that could have been initiated by an information. In United States v. Goldstein, 502 F.2d 526 (3d Cir. 1974), the Third Circuit 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 amended and therefore similar liberality should apply to the indictment. The court relied in part upon the fact that Fed. R. Crim. P. 7(e), which permits the amendment of informations, is silent about the amendment of indictments and, therefore, by implication must prohibit their amendment. The court also cited United States 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 indictments.
In United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933 (1976), the Sixth Circuit, confronting the issue in virtually an identical case, upheld amendment of the indictment. The indictment alleged a failure to file by April 15 and the government corrected this with a bill of particulars setting out the extensions to file. The Sixth Circuit identified the rights involved as: (1) fair notice under the Sixth 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 the defendant to be indicted by a grand jury, the court noted that although the defendant had a constitutional right to be indicted for an infamous crime, the offense with which he was charged was not such an offense. "[S]ince the error permitting amendment to the indictment in this case did not reach constitutional dimensions, the appropriateness of reversal must be determined under Rule 52(a) [harmless error]. . . ." See Pandilidis, at 649.
The correction of an error in an indictment by substitution of a superseding information, where the offense could have been initiated by 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. 1986), cert. denied, 480 U.S. 907 (1987).
[cited in Criminal Resource Manual 206]