Criminal Procedure — redacted indictment — constructive amendment — plain error

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United States Court of Appeals

Criminal

Criminal Procedure — redacted indictment — constructive amendment — plain error

Where a district court provided to a jury during deliberations a redacted indictment, which removed extraneous allegations regarding the acts of co-defendants, that was not plain error in violation of the Fifth Amendment Grand Jury Clause.

“Perez’s argument falters for two reasons. First, he runs into a fundamental problem: he makes no claim that the redacted indictment broadened the possible bases for conviction. Rather, Perez urges us to adopt a broad rule that any change to the indictment constitutes a constructive amendment. Accordingly, he posits that the entire forty-three-page indictment in its original form must have been submitted to the jury—and that it was plain error not to—irrespective of the fact that his former co-defendants were no longer on trial. But this is not the law; in United States v. Miller, the Supreme Court expressly held that dropping allegations from an indictment that are unnecessary to an offense clearly contained within it does not unconstitutionally amend the indictment. 471 U.S. 130, 144 (1985). …

“Second, Perez does not even begin to demonstrate how redacting the indictment constitutes plain error. Perez makes no claim that his substantial rights were affected. Nor does he claim that the use of a redacted indictment seriously affected the fairness, integrity, or public reputation of the proceeding. Perhaps hoping to avoid the burden of showing plain error, Perez cites to Ex parte Bain, 121 U.S. 1, 13 (1887), for the proposition that a defective indictment deprives a court of jurisdiction to hear the matter. But this holding in Bain is no longer good law and was expressly overruled by the Supreme Court in United States v. Cotton, 535 U.S. 625, 631 (2002) (‘Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled.’).”

09-3516 U.S. v. Perez

Northern District of Illinois, Eastern Division, Castillo, J., Kanne, J.