U.S. v. Field

• Decision Date: 25 July 1989
• Docket Number: No. 87-3152,87-3152
• Citation: 875 F.2d 130
• Parties: 28 Fed. R. Evid. Serv. 149 UNITED STATES of America, Plaintiff-Appellee, v. Phillip Allen FIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 130

875 F.2d 130

28 Fed. R. Evid. Serv. 149

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Allen FIELD, Defendant-Appellant.

No. 87-3152.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1988.

Decided May 17, 1989.

Rehearing Denied July 25, 1989.

Mark S. Lenyo, South Bend, Ind., for defendant-appellant.

Clifford Johnson, Asst. U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Before POSNER, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Defendant Phillip Allen Field appeals his conviction of 292 counts of altering postal money orders. For the reasons discussed below, we affirm.

I. Facts

Defendant-appellant Phillip Allen Field was an inmate at the Indiana State Prison. He was charged with 298 counts of altering United States postal money orders and with one count of possession of an altered postal money order. Six counts of the alteration charges were dismissed before trial. At trial, the Government presented testimony of postal inspectors to the effect that Field's fingerprints were on all but one of the altered money orders, that he had touched them almost exclusively on the face, and that many of the fingerprints were near the amount line. There also was testimony that the amount of all the money orders had been raised or altered from higher amounts. Three former inmates of the Indiana State Prison also testified for the Government. Two of the three inmates, one in greater detail than the other, testified as to the defendant's method of altering the money orders. One of the inmates testified that he received a card from the defendant containing three altered money orders, and another testified that he delivered nineteen money orders to the defendant and received them back with the dollar amounts altered. The latter witness identified these nineteen money orders at trial.

The Government also filed two motions at trial to amend typographical errors in the indictment. The first of these motions, which we do not discuss further, was to amend the serial numbers set out in three of the counts of the indictment. The second motion, which was granted over the defendant's objection, was to amend the serial numbers of each money order named in the indictment. This proposed amendment was to add an eleventh digit to each of the serial numbers. This eleventh digit was, according to the testimony of one of the postal inspectors, an internal control number used to guarantee the validity of the document. Only the first ten digits were used to put the money orders in actual sequence. The original omission by the Government of the eleventh digit in the indictment occurred as the result of relying upon a computer print-out in its drafting of the indictment. As the Government pointed out, a xerox copy of each money order was given to the grand jury before it returned the indictment. In granting the Government's motion to amend, the court said:

I do think that the serial number is a matter in substance.... I do think that the grand jury could have indicted Mr. Field without including reference to the serial numbers of the money orders, and the serial numbers then would have had to have been provided through [the] bill of particulars because they would not have had to have been included in the indictment to begin with. I think it's a matter of substance rather than form. Accordingly, I think the government can amend. I see no reason to attempt to characterize the error to be amended as typographical or some other form of error....

I'm not sure we can call the omission of the eleventh digit typographical. But I don't think that affects whether it's a matter of form or substance and, hence, I don't believe it affects whether the government can amend.

The Government also introduced in evidence items obtained from a search of Field's cell seven and one-half months after he was indicted. The search was carried out while Field was in disciplinary segregation. As a result of this search, nineteen items, including sandpaper, exacto knives, liquid paper, colored pencils, and other similar supplies were confiscated. One of the items, the introduction into evidence of which the defendant strongly contests on appeal, was a pair of rubber gloves with computerized ink blots in $500.00 denominations and the purported serial number of a money order on them. The money order itself was not introduced in evidence.

Field was convicted of all the alteration counts, but acquitted on the possession count. He presents three arguments on appeal. First, Field argues that the district court erred in permitting the amendment of the serial numbers of the money orders alleged in the indictment. Second, Field argues that the district court erred in admitting into evidence the items found in the search of Field's cell. Finally, Field contests the sufficiency of the evidence to convict him. We will discuss these three arguments in turn.

II. Discussion

A. Amendment of the Indictment

Field argues that the district court erred in granting the Government's motion to amend the indictment to include the eleventh digit of the serial number of each money order that Field allegedly possessed or altered. He argues that the district court's grant of the Government's motion violated his rights under the presentment and double jeopardy clauses of the Constitution. We disagree.

In certain circumstances, the district court commits reversible error when it allows an indictment to be amended at trial. United States v. Galiffa, 734 F.2d 306, 311 (7th Cir.1984), cert. denied, 474 U.S. 1032, 106 S.Ct. 592, 88 L.Ed.2d 572 (1985). Only a grand jury, and not a trial court, can materially amend a criminal indictment. United States v. Nicosia, 638 F.2d 970, 976 (7th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). The purpose of the presentment clause in this respect is twofold. First, it entitles a defendant to be in jeopardy only for offenses charged by a group of his fellow citizens acting independently of either the prosecutor or the judge. Stirone v. United States, 361 U.S. 212, 217-19, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960). Second, it entitles a defendant to be apprised of the charges against him, so that he knows what he must meet at trial. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932). Likewise, an indictment is insufficient if it does not "[show] with accuracy to what extent [the defendant] may plead a former acquittal or conviction," Hagner, 285 U.S. at 431, 52 S.Ct. at 419, or if it does not protect the defendant against another prosecution for the same offense. Cf. United States v. Cina, 699 F.2d 853, 857 (7th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983) (variance between pleading and proof is not "material" or "substantial" if it does not go against the defendant's rightful expectation that he not be twice prosecuted for the same offense).

Judicial amendments of an indictment, however, are permitted as to matters of form or surplusage. United States v. Muelbl, 739 F.2d 1175, 1179 (7th Cir.1984), cert. denied, 469 U.S. 982, 105 S.Ct. 388, 83 L.Ed.2d 322 (1984). In general, amendments to an indictment will be allowed to stand if they do not "change an 'essential' or 'material' element of the indictment so as to cause prejudice to the defendant." Cina, 699 F.2d at 857 (citations omitted). This includes the "correction of obvious clerical or typographical errors in the indictment." United States v. Skelley, 501 F.2d 447, 453 (7th Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974). In Skelley, this court upheld the district court's grant of the Government's motion to strike the incorrect fictitious serial numbers of counterfeit bills alleged in the indictment in that case. In that case, we said:

While the exceptions do not completely engulf the rule, we are not prepared to make a fetish of the prohibition against amendments of an indictment by holding that it is reversible error to interlineate fictitious serial numbers which are inaccurate solely because of the transposition of two digits in a ten digit string, which could have been omitted entirely from the indictment with no consequence, which need not be proved even if alleged, which the jury could have been instructed to ignore, which might have been corrected as typographical errors, ...

Skelley, 501 F.2d at 453 (emphasis supplied).

Defendant argues, to no avail, that Skelley is distinguishable from this case because, since the serial numbers in that case were fictitious, they did not serve to identify a specific offense charged in the indictment. Field maintains that if the serial number of each money order was not included in the indictment, he would not have been adequately apprised of the charges against him, and also would have been prevented from effectively pleading double jeopardy to subsequent prosecutions involving those money orders.

We think, however, that Skelley controls the disposition of this case. The amendment to the indictment in this case corrected a typographical or clerical error. In other words, this amendment went to the form, and not to the substance of the indictment. United States v. Neff, 525 F.2d 361, 363 (8th Cir.1975) (trial court's amendment of the serial number of a weapon alleged in the indictment was permissible, because this was a correction of a typographical error going to form, and not to substance); see also United States v. Bush, 659 F.2d 163, 165-67 (D.C.Cir.1981) (amendment of indictment during trial to correct form number alleged in the indictment was permissible).

We need not decide whether or not it was necessary to allege the particular serial numbers in the indictment, because even if it was, the defendant was not prejudiced by the amendment here. In this case, there was testimony to the effect that the eleventh digit was not necessary to put the money orders in actual sequence. Moreover,...