United States v. Owens, 3-71 Cr. 107.

• Decision Date: 19 November 1971
• Docket Number: No. 3-71 Cr. 107.,3-71 Cr. 107.
• Parties: UNITED STATES of America, Plaintiff, v. Warren Edward OWENS et al., Defendants.
• Court: U.S. District Court — District of Minnesota

334 F. Supp. 1030

UNITED STATES of America, Plaintiff, v. Warren Edward OWENS et al., Defendants.

No. 3-71 Cr. 107.

United States District Court, D. Minnesota, Third Division.

November 19, 1971.

Robert G. Renner, U. S. Atty. by Joseph Livermore, Asst. U. S. Atty., for plaintiff.

Charles H. Williams, Jr., St. Paul, Minn., for defendant Rush.

NEVILLE, District Judge.

Four defendants have been charged in a three-count indictment involving bank robbery. The moving defendant has been named as Charles Rush, but asserts that the only name that he has ever been known by, or ever used is Garland Rush. He points out that on July 12, 1971, after his arrest, he signed his name as Garland Rush before the Magistrate regarding appointment of counsel and from this fact argues that when the government indicted one Charles Rush sometime later, it must have been referring to a person other than this moving party. He therefore urges the court to dismiss the indictment for misnomer.

The government, countering, makes a motion to amend the indictment to reflect the true name of the defendant, contending that the defect in name is a matter of form and not of substance and therefore can be amended. With this contention the court concurs.

Rule 7(e) of the Federal Rules of Criminal Procedure appears to permit only amendment of any information, as evidenced by the following:

"(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced."

It is now generally agreed, however, that amendments to an indictment as well as to information are permitted when the change concerns matters of form rather than substance. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Fawcett, 115 F.2d 764 (3d Cir. 1940); United States v. Campbell, 235 F.Supp. 94 (E.D. Tenn. 1964).

The crucial question here is whether allowing an amendment of the indictment so as to read Garland Rush rather than Charles Rush affects form rather than substance. It has been held that a name in an indictment is a matter of form and not substance. Fawcett, supra, 115 F.2d at 767; Campbell, supra, 235 F.Supp. at 96. This holding is given credence in light of the well accepted principle that a person may be indicted merely as John Doe until his true name becomes known and then an amendment may be allowed. Campbell, supra, at 96.

Another criterion utilized in ascertaining whether the change is one of substance is whether ". . . judgment of conviction or acquittal on the indictment as drawn would be a bar to a new indictment drawn in the form in which it stood after the amendment." 27 Am.Jur. 651, Indictments and Information, section 117. A similar test is employed in Campbell, supra at 95 where the court allowed the indictment to be amended from Bill Campbell to Charles Andrew Campbell:

"In view of the affidavits which are now a part of this record, if the defendant Charles Andrew Campbell were charged in a subsequent proceeding with offenses similar to those with which he is now charged, this record is not sufficiently accurate to enable

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