Vous êtes sur la page 1sur 7

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, V. MICHAEL DAVID CARROLL

2: 12-CR-0021 1-MEF-WC

Defendants.

MEMORANDUM IN OPPOSITION TO MOTION TO CORRECT INDICTMENT The Government has filed a Motion to Correct Indictment, seeking to amend the indictment by 'Changing the first-named Defendant to David Michael Carroll, The Government first made its oral Motion to correct the indictment at arraignment. Defendant refused to consent to it and objected to it on the record. Furthermore, in the course of conducting its criminal records check for the arraignment in the above-styled case, the United States Probation Office discovered that there exists another individual whose name is Michael David Carroll, which is the name that appears consistently in the indictment. Because the Government's request to amend the indictment bypasses the grand jury and raises significant constitutional questions, the Defendant opposes the government's motion. The Fifth Amendment to the United States Constitution states in pertinent part that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 2 of 7

presentment or indictment of a Grand Jury[.]" U.S. Const. amend, V. Any federal offense punishable by imprisonment for more than one year is an 'infamous crime" for which Fifth Amendment requires a grand jury indictment. United States v. Allen, 190 F.3d 1208 (11t Cir. 1999). The U.S. Supreme Court has recognized that "an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form." Russell v. United States, 369 U.S. 749, 770 (1962). Amendment of an indictment is not proper if the matter of the amendment is "neither trivial, useless, nor innocuous." Stirone v. United States, 361 U.S. 212, 217 (1960). The Federal Rules of Criminal Procedure do not provide for amendments to indictments. Rule 7 thereof is styled "The Indictment and the Information." Subsection (e) states: (e) Amending an Information. Unless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding. Federal Rules of Criminal Procedure 7(e). The only reference in the Advisory Committee Notes to Subdivision (e) is as follows: The rule continues the existing law that, unlike an indictment, an information may be amended, Muncy v. United States, 4 Cir., 289 F. 780. The Government cites to United States v. Johnson, 741 F.2d 1338 (11th Cir. 1984), for the proposition that amendments of indictments to correct a misnomer are freely PJ

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 3 of 7

permitted, but Johnson is distinguishable from the present case on the basis of the significant fact that the misnomer to be corrected in that case was not the name of the defendant. Rather, in Johnson, a prosecution of the defendant for bank robbery, the parties noticed during trial that the indictment erroneously stated that the bank that was robbed was insured by the Federal Deposit Insurance Corporation instead of the Federal Savings and Loan Insurance Corporation. The district court granted the Government's motion to amend the indictment, and the amendment was affirmed on appeal by the Eleventh Circuit, which stated: An indictment must definitely inform the accused of the charges against him "so that he may be able to present his defense and [will not] be taken by surprise by evidence offered at the trial. . ." Williams v. United States, 179 F.2d 656, 659 (5thCir.1950), affd, 341 U.S. 97,71 S. Ct. 576,95 L. Ed. 774 (1951). It must also The sufficiently definite that [the accused] shall not be again subjected to another prosecution for the same offense." Id. An indictment ordinarily may be amended "provided that the amendment does not violate the above requirements, and provided that any evidence defendant had before the amendment would be equally available to him after the amendment." Id.

Id. at 1340-41 (l'ootnote omitted). The court went on to note that in two other cases, United States v. Janoe, 720 F.2d 1156(10th Cir. 1983), and UnitedStates v. Radowitz, 507 F.2d 109
(3d Cir, 1974), the courts had addressed the identical situation and held that it was proper to allow the amendment of an indictment charging a violation of 18 U.S.C. 2113 to replace the words "Federal Deposit Insurance Corporation" with the words "Federal Savings and Loan Insurance Corporation." The court then concluded: None of the reasons for requiring an indictment to be definite counsel us to 3

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 4 of 7

find the amendment improper. The amendment did not affect the defendant's preparation or presentation of his defense and did not threaten doublejeopardy concerns. Johnson, 741 F.2d at 1341 (emphasis added). The bypassing of the grand jury by the court to change an indictment to modify the charges found by the grand jury undermines the role of the grand jury and raises concerns that the court is departing from the intention of the grand jury. With regard to the identity of the perpetrator of the offense, the court may not lightly decide that the grand jury simply made a mistake with regard to the name of the accused, but rather intended to charge the named defendant. Moreover, amendment of an indictment by a court can raise double jeopardy issues, as a defendant convicted under a modified indictment may still be subject to the charges contained in the original indictment should it be determined that the amended indictment had the effect of alleging a distinct offense from the charge originally brought by the grand jury. In short, "the crime for which a man is convicted must be the same crime as that for which the grand jury indicted him." United States v. Bryan 483 F.2d 88, 96 (3d Cir. 1973). An example of why the name of a defendant in an indictment may not be changed by judicial amendment is shown by the case of United States v. ConsolidatedLaundries Corp., 291 F.2d 563 (2d Cir. 1961), an antitrust prosecution under the Sherman Act, in which the court reviewed the amendment of the indictment by the district court by which one defendant named in the indictment was changed from Standard Coat Apron & Linen Service, Inc." to

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 5 of 7

"Standard Coat, Apron & Linen Service, Inc." In short, the amendment of the indictment consisted in inserting a comma in after the word "Coat" in one defendant's name. The court of appeals noted that although the addition of the comma might superficially appear to be only a correction of a typographical error, the change actually substituted as a defendant a 1951 corporation for a dissolved 1941 corporation. Consequently, the court held, the substitution violated the rule laid down in Exparte Bain, 121 U.S. 1 (1887), in which the Supreme Court adopted the common-law rule that an indictment cannot be amended by the court. The court acknowledged that while courts have since recognized that the rule may be applicable only to amendments of substance and not amendments of form, [s]uch an exception is not here applicable. The substitution of one defendant for another cannot by any stretch of imagination be considered one of form only.
Id.

at 572; see also United States v. Anzelmo, 319 F. Supp. 1106 (E.D. La. 1970) (precise

factual allegation of use of mail was essential to count charging violation of registration provisions of 1933 Securities Act and amendment materially changing count by adding name and address of person sending letter was not valid, and count would be dismissed). Relying on facts contrary to the instant casc, the Ninth Circuit Court of Appeals allowed the Court to amend an indictment that originally charged Gregorio C. Perez, Jr., aka Junior Perez, to Junior Cruz Perez. Un ited States v. Perez, 776 F.2d 797 (1985). It reasoned that:

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 6 of 7

The amendment simply conformed the indictment to the accused's preferred name. The accused was not prejudiced by this change - he consented to it, it differed little from the original "aka" and he made no claim that another Junior Perez existed. 776 F.2d at 799 (emphasis added). Michael David Carroll is not the Defendant's preferred name. Defendant did not consent to an amendment as Perez did at arraignment. 14. There is no "aka" allegation herein. There is an existing Michael David Carroll that the grand jury could have chosen to indict. The Government's attempt to modify the indictment cannot avoid the fact that the grand jury indicted an individual with a different name than the Defendant and that another individual existed with that same name. Consequently, the Government cannot now bypass the grand jury tp change the indictment to accuse the Defendant under his name without violating the Fifth Amendment. For this reason, and for all of the reasons set forth above, the Defendant asks this Court to deny the Government's Motion to Correct Indictment, Respectfully submitted, /s/ Joseph L. Dean, Jr. Joseph Lowrie Dean Jr., Esquire Dean& Barrett 457 South Tenth Street Opelika, AL 36803 Telephone: (334) 749-2222 Facsimile: (334) 749-5857 Email: Ideanir(bellsouth.net Attorney for Defendant

Case 2:12-cr-00211-MEF-WC Document 29 Filed 12/05/12 Page 7 of 7

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court using the CM!ECF system and I hereby certify that a copy of the foregoing will be served on the attorney of record for the Plaintiff United States of America this 5" day of December 2012. Is! Joseph L. Dean, Jr. Joseph Lowrie Dean Jr., Esquire Dean& Barrett 457 South Tenth Street Opelika, AL 36803 Telephone: (334) 749-2222 Facsimile: (334) 749-5857 Email: jdeanjr(2be11south.net Attorney for Defendant

Vous aimerez peut-être aussi