U.S. v. Kegler

• Decision Date: 30 December 1983
• Docket Number: No. 83-1219,83-1219
• Citation: 724 F.2d 190,233 U.S. App. D.C. 58
• Parties: UNITED STATES of America v. Angela M. KEGLER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 190

724 F.2d 190

233 U.S.App.D.C. 58

UNITED STATES of America v. Angela M. KEGLER, Appellant.

No. 83-1219.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 26, 1983.

Decided Dec. 30, 1983.

On Appeal from the United States District Court for the District of Columbia (Criminal No. 82-00219-01).

David C. Venable, Washington, D.C. (appointed by this Court), for appellant.

Daniel J. Seikaly, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Michael Farrell, Judith Hetherton and Douglas J. Behr, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before TAMM and WILKEY, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

MacKINNON, Senior Circuit Judge:

The grand jury returned a two-count ¹ indictment under 18 U.S.C. Sec. 2314 (1976) ² charging that Angela M. Kegler, with unlawful and fraudulent intent, caused falsely made and forged securities to be transported interstate. Jury verdicts of guilty were returned on both counts. Kegler was sentenced on Count II to a term of imprisonment of two to six years, and on Count I to a consecutive four-year term of probation.

Appellant contends that a minor amendment of both counts of the indictment which substituted the name "Andrea Mateer" for "Angela Mateer" as the payee of the two forged securities (checks) violated her Fifth Amendment right to be tried on the indictment returned by the grand jury. ³ She also contends that the evidence is insufficient to support the conviction on Count II. We find both contentions to be without merit and affirm the judgment of conviction on both counts.

I. THE AMENDED INDICTMENT

With respect to the contention that the indictment was improperly amended, at the close of the first day at trial, the following colloquy occurred between the prosecutor, the court, and defense counsel:

MR. BEHR [PROSECUTOR]: Your Honor, if I might, I have one problem that I need to raise with the court. In reading over the indictment in my opening statement, I became aware that there appears to have been a clerical mistake in the indictment. It lists the name of Angela Mateer on the checks as opposed to Andrea Mateer. I would request at this time permission of the court to amend the indictment so that the correct name, as it appears on the two checks, is on the indictment.

I believe it is well within the power of the court to allow that amendment. It would be a typographical or clerical mistake on the indictment. The checks are very clearly described, and the only mistake is in the first name of the person to whom it was [they were] drawn.

Quite clearly, it has caused no problem in preparation by either defense counsel since the issue has never been raised.

MR. VAN [DEFENSE COUNSEL]: We have no objection, Your Honor.

THE COURT: All right.

MR. BEHR: Your Honor, I will have a new copy typed.

THE COURT: The indictment can be so amended.

(Tr. 112-13) (emphasis added).

In support of her contention that the change in the indictment from "Angela" to "Andrea" violated her constitutional rights under the Fifth Amendment, appellant relies principally upon Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), and its progeny. In this 1887 decision, the Supreme Court held that whenever an indictment requires an amendment of substance it must be sent back for that purpose to the grand jury. The amendment at issue in Bain struck as surplusage the phrase "the Comptroller of the Currency" as one of the parties that the indicted bankers sought to deceive by false statements and reports. The court granted habeas corpus relief, stating that the court could not amend the indictment without presenting it again to the grand jury. Id. at 13, 7 S.Ct. at 787.

Bain involved a substantive amendment to the indictment, but its decisional language was very broad. In the last 100 years, the excessive strictness of some of the dicta in the Court's opinion has been tempered. It is clear that its principal holding--that any substantial direct or indirect amendment of an indictment must be resubmitted to the grand jury--continues as sound law. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960) ("Bain ... stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him"); Crosby v. United States, 339 F.2d 743, 744 (D.C.Cir.1964) (court improperly instructed the jury on a lesser offense that was not included in the indicted offense).

We need not repeat the opinion in United States v. Bush, 659 F.2d 163 (D.C.Cir.1981), written by Judge Robinson for a unanimous panel, which cites numerous recent precedents holding that courts generally have not applied the strict language in Bain to cases involving only minor clerical errors or misnomers, where the substance of the charge is left totally unaffected and the prerogative of the grand jury is not usurped. This is such a case. Judge Robinson also pointed out in Bush that the settled rule in federal courts prohibits substantive amendments, but permits changes in indictments that are merely "a matter of form" or which correct insignificant clerical errors. Id. at 167. Cf. Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962). An amendment of form and not of substance occurs when the defendant is not misled in any sense, is not subjected to any added burden and is not otherwise prejudiced. Williams v. United States, 179 F.2d 656, 659 (5th Cir.1950), aff'd, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951).

As to what is the substance of the charge, United States v. Denny, 165 F.2d 668, 669 (7th Cir.1947), cert. denied, 333 U.S. 844, 68 S.Ct. 662, 92 L.Ed. 1127 (1948), states: "[E]very fact which must be proved to make the act complained of a crime is matter of substance, and ... all else ... is formal." Applying this rule, the trial court in Denny permitted the district attorney to change the name of the defendant in the second count of an indictment from "Gordon Keith Kenny" to "Gordon Keith Denny," which was the name shown in the first count. This was merely a stenographic mistake. The court ruled that where no change of identity is involved the defect is one of form. Id. at 670.

In the misnomer category, courts have permitted amendments of the name of an involved employer. Williams v. United States, supra, 179 F.2d at 659-660 ("Lindsley Lumber Company" amended to read "Denia Supply Company, doing business as the Lindsley Lumber Company"). Another case allowing some change in the name is United States v. Fawcett, 115 F.2d 764 (3d Cir.1940), where an indictment against "Harry Nelson" was amended to read "Harry Nelson otherwise known as Leo Wilson." The court, relying on the then-existing harmless error rule, held that such an amendment was merely one of form. The defendant was not prejudiced and none of his substantial rights was affected. Id. at 767. An amendment to allege the correct name of a robbed bank was also allowed in United States v. Doby, 598 F.2d 1137, 1142 (8th Cir.1979).

The court may amend an indictment that does not strike any portion of the charging paragraph and thus does not change the charged offense. United States v. Craig, 573 F.2d 455 (7th Cir.1977), cert. denied, 439 U.S. 820, 99 S.Ct. 83, 58 L.Ed.2d 110 (1978) (court struck part of indictment to make it conform to earlier court decision that ruled on those allegations--held not an amendment).

Thus, in Bush, supra, the defendant was charged with falsely amending "Form 1080" expense vouchers. The form number was a typographical error. The court permitted amending the indictment to read "Form 1038" instead of "Form 1080." 659 F.2d at 167. Other courts have permitted a wide variety of changes regarding facts which are ancillary to the offense charged: United States v. Powers, 572 F.2d 146, 152 (8th Cir.1978) ("30-30 caliber revolver " amended to a "30-30 caliber rifle "); 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) (typographical error--date of testimony in an obstruction of justice case--indictment amended to state correct date--"The change was immaterial to the charge. It was a mere matter of form" and defense was not prejudiced); Jervis v. Hall, 622 F.2d 19, 22-23 (1st Cir.1980) (clerical error, date of arrest amended to insert date of alleged offense in larceny indictment). And when an indictment is amended to drop some of the counts, it has been held permissible to retype the two counts and submit them in amended form to the jury. United States v. Bryant, 471 F.2d 1040, 1045 (D.C.Cir.1972). Judge Duniway, in Heisler v. United States, 394 F.2d 692, 696 (9th Cir.), cert. denied, 393 U.S. 986, 89 S.Ct. 463, 21 L.Ed.2d 448 (1968) (permitting amendment in the denomination of a counterfeit bill from $20 to $10), commented: "[W]e think that the progeny of Bain are out of joint." ⁴

The Eighth Circuit has stated that "a finding of prejudice to the defendant must be present before an amendment [of an indictment] will be held impermissible." United States v. Burnett, 582 F.2d 436, 438 (8th Cir.1976).

Thus, the modern rule is that an indictment may be amended by the court, provided that the amendment is not substantial, it is sufficiently definite and certain, the accused is not taken by surprise, and any evidence the defendant had before the amendment would be equally available to him after the amendment.

With respect to the indictment, there is no claim in this case that the identity of the accused was misstated, that any harm was done her by the amendment, or that she was not fully cognizant of the crime with which she was charged. The detail of the checks described in each count of the indictment is adequate to protect her against another prosecution for the same offense. The amendment simply corrected a stenographic error in the...