No Error In Letting Government Amend Indictment to Conform Serial Number of Gun Alleged to Gun Introduced at Trial

United States v. Midkiff, No. 07-30981 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Although not otherwise breaking any new ground, this opinion does address one question that the Fifth Circuit hasn't previously addressed directly: is it a mistake of form or substance if an indictment alleging a gun crime alleges a serial number different from the one on the gun introduced at trial? (Hint: it's not substance.)

Midkiff also argues that his convictions for possession of a firearm in furtherance of a drug trafficking crime and possession of a firearm by a convicted felon should be reversed because the serial number provided in the indictment for the firearm at issue was not the same as the serial number for the firearm introduced as evidence at trial. He argues that the district court erred by permitting an amendment to the indictment after the close of all evidence, particularly when the government had knowledge of the discrepancy early in the trial, if not earlier, and failed to move to amend until evidence was closed.

Generally, indictments can only be amended by a grand jury. But, “[t]he form of an indictment may be amended without return to the grand jury so long as its substance remains the same,” such as by correcting a “misnomer” or mistake of form. Thus, the issue is whether the amendment to the serial number constituted a change in form akin to correcting a typographical error or a change in substance that impermissibly altered the indictment.

Although we have never addressed this question directly, precedent from this circuit and others suggests that the particular attributes of a firearm are not actual elements of the offense. . . .

We also have noted that “[a]n amendment will be allowed if a defendant’s rights are not affected and he is adequately apprised of the charges against him so that he is protected against surprise at trial . . . .” In this case, Midkiff has not contended that he was prejudiced either by the amendment itself, or by the district court’s decision to permit the amendment after the government had rested. He does not claim that he was surprised by the trial evidence, or that his ability to defend the charges was impaired in any way. Given that Midkiff has neither alleged nor shown prejudice, we find no abuse of discretion in the district court’s decision to allow the government to reopen its case to amend the indictment.

(cites omitted). Another way to say it would be: We find no error in permitting the Government to amend the indictment to conform to the evidence it actually introduced at trial.

Snark aside, it's hard to say how far this holding would extend, since the opinion doesn't explain the exact difference between the two serial numbers. If it's a matter of one digit (as in one of the cases from another circuit), then the holding makes sense. At the other extreme, a serial number from an entirely different gun (different type, manufacturer, etc.) would seem to be more than just a misnomer. Lots of hypos in between.