413 F.2d 1061 (D.C. Cir. 1969), 21780, Gaither v. United States

Docket Nº:21780, 22148, 21864.
Citation:413 F.2d 1061
Party Name:Tyrone GAITHER, Appellant, v. UNITED STATES of America, Appellee. Charles TATUM, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 08, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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413 F.2d 1061 (D.C. Cir. 1969)

Tyrone GAITHER, Appellant,


UNITED STATES of America, Appellee.

Charles TATUM, Appellant,


UNITED STATES of America, Appellee.

Nos. 21780, 22148, 21864.

United States Court of Appeals, District of Columbia Circuit.

April 8, 1969

Argued Jan. 14, 1969.

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Mr. Robert L. Weinberg, Washington, D.C. (appointed by this court), for appellant in Nos. 21, 780 and 22, 148.

Mr. Julian P. Freret, Washington, D.C. (appointed by this court), for appellant in No. 21, 864.

Mr. Roger E. Zuckerman, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before WRIGHT, MCGOWAN and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellants Tatum and Gaither were convicted of grand larceny for a shoplifting expedition to Woodward & Lothrop's Department Store. The evidence showed that Tatum took five sport coats from a display rack and laid them on the floor. Gaither then approached with a large shopping bag, which he held open while Tatum put the coats inside. A special policeman employed by the store observed the incident, and with the help of two colleagues arrested appellants before they left the store. The coats had a wholesale value of over $100.

Appellants attack their convictions on a host of grounds. Chief among these is a challenge to the indictment procedure

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used in this case. We find that procedure to be indeed defective, and we require that it be changed for indictments brought after the date of this opinion. However, in the instant case we find no prejudice to appellants requiring reversal. With respect to the other errors claimed, we likewise find no defect affecting substantial rights, and hence we affirm both convictions.


The indictment was returned under what is evidently the normal procedure followed in this jurisdiction. On August 2, 1967, the grand jury met, and an Assistant United States Attorney examined the arresting officer. On the same day, the grand jury voted to 'present' the defendants for grand larceny. Their decision is recorded on a printed form which, after being filled in, read as follows:

'We, the Grand Jurors of the United States of America, in and for the District aforesaid, upon our oaths, do PRESENT Charles Tatum (and) Tyrone Gaither (for) Grand Larceny at the District aforesaid, on the 2nd day of August, A.D. 1967.'

The presentment is signed by the foreman of the grand jury.

The grand jury as a body did not consider the case again. An indictment was drafted by the United States Attorney's office, and was signed by the foreman of the jury under the traditional certification 'A True Bill.' The indictment was returned on August 30, 1967.

Rule 6(f) of the Federal Rules of Criminal Procedure provides: 'An indictment may be found only upon the concurrence of 12 or more jurors.' And Rule 6(c) emphasizes the requirement that 12 jurors shall 'find' each indictment by its provision that the foreman 'shall keep a record of the number of jurors concurring in the finding of every indictment * * *.' The requirement of the Criminal Rules that every indictment must be 'found' by at least 12 grand jurors is a further specification of the Fifth Amendment's command that 'no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.' 1

A. Appellants contend that the procedure followed failed to meet the standards of Rule 6 and the Fifth Amendment, in that the indictment brought was not an 'indictment of a Grand Jury' which had been 'found' by the requisite 12 jurors. They raised this contention by timely motion to dismiss the indictment in the District Court, 2 and renewed it

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by motion in arrest of judgment. Both motions were denied.

Appellants attack the indictment procedure followed here on the basis of the policies inherent in the constitutional guarantee of indictment by grand jury, and in the history underlying that guarantee. The Fifth Amendment guarantees that prosecutions for serious crime may only be instituted by indictment. The indictment as a charging instrument has been recognized to have two chief purposes-- first to apprise the accused of the charges against him, so that he may adequately prepare his defense, and second to describe the crime with which he is charged with sufficient specificity to enable him to protect against future jeopardy for the same offense. 3

But these are not the only purposes of the indictment provisions of the Fifth Amendment. The Fifth Amendment requires that an indictment be brought by a grand jury. The grand jury is interposed 'to afford a safeguard against oppressive actions of the prosecutor or a court.' 4 The decision to hale a man into a court is a serious one, subject to official abuse. For this reason, 12 ordinary citizens must agree upon an indictment before a defendant is tried on a felony charge. 5 The content of the charge, as well as the decision to charge at all, is entirely up to the grand jury--subject to its popular veto, as it were. 6 The grand jury's decision not to indict at all, or not to charge the facts alleged by the prosecutorial officials, is not subject to review by any other body. 7

The sweeping powers of the grand jury over the terms of the indictment entail very strict limitations upon the power of prosecutor or court to change the indictment found by the jurors, or to prove at trial facts different from those charged in that indictment. Since the grand jury has unreviewable power to refuse indictment, and to alter a proposed indictment, proof at trial of facts different from those charged cannot generally be justified on the ground that the same facts were before the grand jury and that the jurors might or even should have charged them.

Supreme Court decisions on amendment of the indictment support these principles as necessary inferences from the guarantee of indictment by a grand jury. In the leading case of Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the defendant, an officer of a banking association, was charged with making a false report 'with intent to deceive the Comptroller of the Currency

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and the agent appointed to examine the affairs of said association.' 8 On motion by the Government, the trial court ordered the italicized words struck out as surplusage. The Supreme Court set the conviction aside. In reply to the trial judge's argument 'that the grand jury would have found the indictment without this language, ' the Court stated:

'* * * But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part of that instrument. * * * How can it be said that, with these words stricken out, it is the indictment which was found by the grand jury? If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer, ' may be frittered away until its value is almost destroyed.'

121 U.S. at 9-10, 7 S.Ct. at 786.

The Supreme Court has continued to adhere to the Bain principle in recent years. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270 (1960), the grand jury charged a violation of the Hobbs Act. It found that the interstate commerce affected was the victim's shipment of sand from various other states to his plant in Pennsylvania. The trial judge allowed the Government to introduce evidence of interstate commerce other than that charged-- i.e., the movement of finished steel from the victim's plant outward to other states. The Court set aside the conviction, holding that the proof at trial of these uncharged facts amounted to an amendment of the indictment with respect to the element of interstate commerce. The Court relied on Bain, and quoted extensively from the passage set out above. 9

In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038 (1962), the Supreme Court held that a bill of particulars cannot cure a fatally imprecise indictment. The bill of particulars fully serves the functions of apprising the accused of the charges and protecting him against future jeopardy, but it does not preserve his right to be tried on a charge found by a grand jury. The Court again cited the passage from Bain, 10 referred to 'the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form, ' 11 and stated:

'* * * To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a 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. * * *' 12

In Bain, Stirone and Russell the Supreme Court has shown that it takes seriously, and requires to be enforced rigorously, the Fifth Amendment's command that a defendant to a charge of 'infamous crime' be tried only on an 'indictment of a Grand Jury.' But here, appellants argue, the defendants

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were tried on an indictment drawn by an Assistant United States Attorney on the grand jury's instruction ('presentment') 13 that...

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