December 6, 2013
United States of America, Plaintiff,
Derek Edward Benedict, et. al., Defendants.
Surya Saxena, United States Attorney's Office, 300 South Fourth Street, Suite 600, Minneapolis, Minnesota 55415, on behalf of Plaintiff.
Thomas G. Dunnwald, Dunnwald & Peterson, PA, 205 Garland Building, 201 East Hennepin Ave., Minneapolis, Minnesota 55414, on behalf of Defendant Derek Edward Benedict.
David Izek, Altman & Izek, 901 North Third Street, Suite 140, Minneapolis, Minnesota 55401, on behalf of Defendant Lyle Robert Carpenter.
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on the Amended Motion to Narrow the Indictment for Trial (Doc. No. 294) filed by the United States ("the Government"). Defendant Derek Edward Benedict ("Benedict") objects to the Government's motion. (Benedict's Response [Doc. No. 303].)
The Government seeks to narrow the Indictment in the following ways:
(1) To eliminate references to Defendants who are expected to have pleaded guilty prior to trial;
(2) To eliminate certain allegations that are not essential to proving any offense charged, where the United States will not be offering evidence in support of such allegations or where such allegations are redundant or unnecessary;
(3) To correct certain language (including changing the singular/plural nature of words) to account for the deletion of the above-referenced language;
(4) To remove the Forfeiture Allegations of the Indictment, which are not to be considered by the jury during the guilt phase of trial, and which will not be submitted to the jury at any time in this case, given that no specific property is listed for forfeiture in the Indictment; and
(5) To revise a typographical error in the address of the Walgreens store referenced in Count 4 to properly reflect the address at the time of the burglary - 4080 West Broadway Avenue, Robbinsdale, MN.
(Govt.'s Am. Motion to Narrow the Indictment at 1-2 [Doc. No. 294].) In objection, Defendant Benedict argues that an amended indictment will create juror confusion, as jurors will hear references to two different versions of the same document. (Benedicts's Response at 1 [Doc. No. 303].)
The Supreme Court has held that an indictment may be amended to drop allegations that are not essential to the charged offense. United States v. Miller , 471 U.S. 130, 144 (1985). In Miller, the Court observed that the change in question "added nothing new to the grand jury's indictment and constituted no broadening." Id . Similarly, the Eighth Circuit has observed that while the general rule is that a court may not amend an indictment, amendment is proper where the amendment is merely one of form, adds nothing to the indictment, and the remaining allegations state the essential elements of an offense. United States v. Nabors , 762 F.2d 642, 647 (8th Cir. 1985) (citing United States v. Burnett , 582 F.2d 436, 438 (8th Cir. 1976). Moreover, "a finding of prejudice to the defendant must be present before an amendment is held impermissible." Id.
This Court finds that the Government's proposed changes simply narrow the Indictment - they do not broaden it. Rather, the proposed changes are merely matters of form and do nothing to alter the substance of the charges against Defendants. As to the proposed change which seeks to eliminate the names of Defendants who have pleaded guilty or who are expected to do so, the Eighth Circuit has approved the deletion from the indictment of the name of a co-defendant where the co-defendant pleaded guilty. United States v. Sazenski , 833 F.2d 741, 744 n.4 (8th Cir. 1987). Where Benedict and/or Carpenter are now the remaining or sole Defendants for a particular count that previously included the pleading Defendants, the Government has replaced the name of the pleading Defendants with the phrase "and others." (See, e.g., Proposed Am. Indictment, Count I, ¶ 1 [Doc. No. 294-1].) In light of the deletion of these pleading Defendants, the Government also proposes grammatical changes, such as changes from the singular to the plural tense. All of these changes are non-substantive and are permissible. See Sazenski , 833 F.2d at 744, n.4.
Regarding the Government's request to remove allegations that are not essential to its burden of proof, the Government avers that it will not be offering evidence in support of such allegations or that the allegations are redundant or unnecessary. (Govt.'s Am. Mot. to Narrow the Indictment at 1 [Doc. No. 294].) Again, amendments that drop allegations non-essential to the charged offense are constitutionally permissible. Miller , 471 U.S. at 144. Accordingly, the deletion of such non-essential allegations, including its forfeiture allegations, is permissible.
Finally, the Government's request to correct a typographical error found in the address of a pharmacy referenced in Count 4 is likewise permissible. "Correction of a typographical error which goes to the form rather than the substance of the indictment is permissible." United States v. Neff , 525 F.2d 361, 363 (8th Cir. 1975).
Benedict does not argue that the proposed amendments in any way change the substance of the Indictment. The Court finds that the issue of jury confusion is minimal and the Court finds no prejudice to Benedict or Carpenter in granting the Government's motion. Nabors , 762 F.2d at 647.
Based upon the foregoing, and all the files, record, and proceedings herein, IT IS HEREBY ORDERED that
The Government's Amended Motion to Narrow the Indictment for Trial (Doc. No. 294) is GRANTED.