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Criminal Procedure – indictment — constructive amendment

By: WISCONSIN LAW JOURNAL STAFF//January 3, 2012//

Criminal Procedure – indictment — constructive amendment

By: WISCONSIN LAW JOURNAL STAFF//January 3, 2012//

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure – indictment — constructive amendment

Where the indictment charged an offense “on or about July 13,” but the offense occurred on July 14, the indictment was not impermissibly constructively amended.

“We review whether a district court constructively amended the indictment de novo. United States v. Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006). ‘For a change in the indictment to rise to the level of a constructive amendment, it must establish an offense different from, or in addition to, those originally charged.’ United States v. Mitov, 460 F.3d 901, 906 (7th Cir. 2006) (citing United States v. Trennell, 290 F.3d 881, 888 (7th Cir. 2002)). Thus, we are primarily concerned with changes made to the indictment that affect elements of the crime. Id. at 906-07 (citing United States v. Krilich, 159 F.3d 1020, 1027 (7th Cir. 1998)). Here, the date is not an element of any of the offenses charged, and ‘where the charge is worded so broadly as to state “on or about” a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date.’ Id. (citing United States v. Folks, 236 F.3d 384, 391 (7th Cir. 2001)). The indictment gave Smith proper notice of the offense for which he was being charged and that the date of the offense listed on the indictment was an approximation. We find that proof at trial that the events took place one day after July 13, 2010 did not result in an impermissible constructive amendment. See id.; Folks, 236 F.3d at 391, United States v. Leibowitz, 857 F.2d 373, 379 (7th Cir. 1988).”

Affirmed.

11-2016 U.S. v. Smith

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Williams, J.

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