Submitted en banc June 12, 1974. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Criminal No. 2222.
Hunter and Weis, Circuit Judges, and Miller, District Judge. Resubmitted: Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. (en Banc). Hunter, Circuit Judge, with whom Seitz, Chief Judge and Van Dusen, Circuit Judge, join, dissenting. Adams, Circuit Judge, dissenting.
Whether an indictment for a misdemeanor may be amended to correct a material variation between allegata and probata is a question of first impression in this circuit. In a thoughtful opinion the district court held that an amendment was permissible, but after careful consideration, we feel obliged to come to a contrary conclusion, and we therefore reverse.
The defendant, Louis Goldstein, was indicted by a grand jury on three counts. Counts I and III charged that defendant filed false returns for the years 1964 and 1966 in violation of 26 U.S.C. § 7206(1). The petit jury found Goldstein not guilty on these counts.
Count II charged in part that defendant ". . . by reason of such income . . . was required by law following the close of the calendar year 1965 and on or before April 15, 1966 to make an income tax return to the District Director of the Internal Revenue . . . he did willfully and knowingly fail to timely make said income tax return. . . ."
At the trial it was established that Goldstein had no legal duty to file his 1965 tax return until May 7, 1966, and the trial judge so submitted the case to the jury, in effect allowing an amendment to the indictment. The jury was instructed that the state of mind of the defendant as it might bear on the element of willfulness was material during the period of time leading up to May 7, 1966. After the verdict of guilty on this count, the defendant filed post-trial motions for acquittal and arrest of judgment, asserting a fatal variance between the date set out in the indictment and that established by the government's proof.
The evidence in the district court disclosed that on April 15, 1966, the date on which the indictment alleged that defendant had a duty to file his income tax return, he did in fact submit a Form 2688 requesting an extension of time. This form was returned to Goldstein by the District Director of the Internal Revenue Service on April 27, 1966 bearing a notation that the request was rejected because the defendant's social security number had not been included, but allowing resubmission within ten days if he wished to pursue the matter. Since the defendant did not follow up, the district court found that under the regulations then applicable, the return became due on May 7, 1966.
While the rule is generally stated that an indictment cannot be "amended," it may be more precise to say that a change in the indictment which is substantial or material, and not merely one of form, is not permissible. 8 Moore's Federal Practice -- Cipes, Criminal Rules para. 7.05. Hence, the first question to be decided here is whether the alteration in dates from April 15 to May 7, 1966 was material.
Ordinarily, a mere change in dates is not considered a substantial variation in an indictment, but an exception exists when a particular day may be made material by the statute creating the offense. As stated in 4 Anderson, Wharton's Criminal Law and Procedure § 1775, "When time is of the essence of the offense, it must be correctly alleged and must be proved as laid. . . ." (footnote omitted). "As has been previously stated, when time is an essential ingredient of the offense charged, it must be laid with exactitude in an indictment, and in such cases must be proved as laid." 5 id. § 2062. (footnote omitted).
The statute involved here illustrates this exception to the general rule. There was no duty imposed on the defendant to file a return before April 15, and an indictment alleging an offense in failing to submit a return on April 10, for example, would not state a crime. An omission to perform an act by April 15 is designated a criminal offense, but only on that date does the crime occur. Conduct and time are thus inextricably intertwined. See United States v. Figurell, 462 F.2d 1080 (3d Cir. 1972). By way of contrast, a bank robbery is a criminal offense at all times, regardless of the date on which it takes place. In that instance a variance of a few days between the dates established by the indictment and proof would be a matter of form and not of substance. The difference between these two situations is apparent.
In requiring an accurate allegation of time, we do not rely on a merely mechanical application of what may seem to be an unduly restrictive common law rule. An indictment is the product of the deliberations of a grand jury, and a brief review of its purposes may serve to explain the policy behind strict adherence to the language used in presenting an accusation of that body.*fn1
Two of the functions of an indictment are to apprise the defendant of the charge of which he is accused and to provide protection against reprosecution should an acquittal result. The defendant here does not and cannot claim prejudice on either of these elements. But there is a third and very important aspect of the indictment process, and that is the duty of the grand jury to shield a citizen from unfounded charges and to require him to appear in court in defense, only if probable cause has been found by that independent body. Until that prerequisite has been met, the accused is not properly before the court. Thus, a conviction of a defendant cannot be upheld on the basis of facts not found by and perhaps not even presented to the grand jury which indicted him. Russell v. United States, 369 U.S. 749, 770, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962).
This screening process of the grand jury is a substantial benefit to an accused person and in the case of serious crimes is constitutionally guaranteed. Its importance has been emphasized by such cases as Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887); Stirone v. United States, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960); and Russell v. United States, supra.
The application of the principle was explained in United States v. DeCavalcante, 440 F.2d 1264 (3d Cir. 1971), where this court stated that we must test to see whether there is reasonable assurance from the face of the indictment that the grand jury found probable cause on each ...