471 U.S. 130 (1985), 83-1750, United States v. Miller

Docket Nº:No. 83-1750
Citation:471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99, 53 U.S.L.W. 4446
Party Name:United States v. Miller
Case Date:April 01, 1985
Court:United States Supreme Court
 
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Page 130

471 U.S. 130 (1985)

105 S.Ct. 1811, 85 L.Ed.2d 99, 53 U.S.L.W. 4446

United States

v.

Miller

No. 83-1750

United States Supreme Court

April 1, 1985

Argued January 16, 1985

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

Syllabus

A federal grand jury returned a multicount indictment charging respondent with mail fraud in violation of 18 U.S.C. § 1341. He was alleged to have defrauded his insurer in connection with a burglary at his place of business both by consenting to the burglary in advance and by lying to the insurer about the value of his loss. The proof at his jury trial, however, concerned only the latter allegation, and he was convicted. Respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment. The Court of Appeals agreed and vacated the conviction, holding that, under the Fifth Amendment's grand jury guarantee, a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included in, the scheme that the indictment alleged.

Held: Respondent's Fifth Amendment grand jury right was not violated. Pp. 135-145.

(a) As long as the crime and the elements thereof that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as a useless averment that may be ignored. Pp. 135-138.

(b) Respondent has shown no deprivation of his substantial right to be tried only on charges presented in a grand jury indictment. He was tried on an indictment that clearly set out the offense for which he was ultimately convicted. Stirone v. United States, 361 U.S. 212, distinguished. Pp. 138-140.

(c) The proposition that a narrowing of an indictment constitutes an "amendment" that renders the indictment void, Ex parte Bain, 121 U.S. 1, is now explicitly rejected. Pp. 140-145.

(d) The variance complained of here added nothing new to the indictment and constituted no broadening, and what was removed from the case was in no way essential to the offense on which respondent was convicted. P. 145.

715 F.2d 1360 and 728 F.2d 1269, reversed.

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MARSHALL, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case.

MARSHALL, J., lead opinion

JUSTICE MARSHALL delivered the opinion of the Court.

The issue presented is whether the Fifth Amendment's grand jury guarantee1 is violated when a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme.

A grand jury in the Northern District of California returned an indictment charging respondent Miller with three counts of mail fraud in violation of 18 U.S.C. § 1341. After the Government moved to dismiss the third count, Miller was tried before a jury and convicted of the remaining two. He appealed, asserting that there had been a fatal variance between the "scheme and artifice" to defraud charged in the indictment and that which the Government proved at trial. The Court of Appeals for the Ninth Circuit agreed and vacated [105 S.Ct. 1813] the judgment of conviction. 715 F.2d 1360 (1983), modified, 728 F.2d 1269 (1984). We granted certiorari, 469 U.S. 814 (1984), and reverse.

I

A

The indictment had charged Miller with various fraudulent acts in connection with a burglary at his place of business.

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Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss.2 The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient

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to support a jury finding that Miller's claim to his insurer had grossly inflated the value of any actual loss.3

The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that, even without that allegation, the indictment still made out a violation of § 1341.4 Respondent's counsel opposed the change, and at his urging the entire [105 S.Ct. 1814] indictment was sent to the jury. The jury found Miller

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guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment.

Agreeing that Miller's Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale:

The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. . . . In fact, it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller's exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller's knowing consent to the burglary.

715 F.2d at 1362-1363.

B

Miller's indictment properly alleged violations of 18 U.S.C. § 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave Miller clear notice that he would have to defend against an allegation that he

"well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company."

715 F.2d at 1361-1362 (quoting indictment). Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary;

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nor can there be a showing that the variance prejudiced the fairness of respondent's trial in any other way. Cf. Kotteakos v. United States, 328 U.S. 750 (1946). See also Berger v. United States, 295 U.S. 78, 83 (1935). Cf. also United States v. Ballard, 322 U.S. 78, 91 (1944) (Stone, C.J., dissenting). The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions. Therefore, none of these "notice" related concerns -- which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment -- would support the result of the Court of Appeals. See Russell v. United States, 369 U.S. 749, 763-764 (1962).

The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury's indictment. 728 F.2d at 1270. It reasoned that a grand jury's willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan. 715 F.2d at 1362-1363. Relying on the Fifth Amendment's grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the grand jury had alleged. The Court of Appeals cited two prior decisions [105 S.Ct. 1815] of this Court that emphasized the right of an accused to be tried only on charges that had in fact been passed on by a grand jury. Ibid. (citing Stirone v. United States, 361 U.S. 212 (1960), and Ex parte Bain, 121 U.S. 1 (1887)). Cf. United States v. Mastelotto, 717 F.2d 1238, 1248-1250 (CA9 1983) (similarly relying on Stirone and Bain).

II

The Government correctly argues that the Court of Appeals' result conflicts with a number of this Court's prior

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decisions interpreting the Fifth Amendment's Grand Jury Clause. The Court has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways. As long as the crime and the elements of the...

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