United States District Court, Northern District of New York
January 3, 1990
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT TAPPAN MORRIS, DEFENDANT.
The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION & ORDER
The United States has moved to withdraw a portion of the
indictment charging defendant with violating
18 U.S.C. § 1030(a)(5). Specifically, the United States seeks to withdraw
from the indictment any reference to "Air Force Logistics
Command, Wright Patterson Air Force Base in Dayton, Ohio." The
government seeks this withdrawal because it no longer intends
to offer any evidence at trial to prove that the Wright
Patterson computer was one of the Federal interest computers
intentionally accessed by defendant.
The government has not cited, and this court has not found,
any cases in which the government has moved prior to trial to
withdraw a portion of the indictment. However, as defendant
correctly recognizes, at least since the Supreme Court's
decision in United States v. Miller, 471 U.S. 130, 105 S.Ct.
1811, 85 L.Ed.2d 99 (1985), it is clear that during the course
of a trial a court may "drop from an indictment those
allegations that are unnecessary
to an offense that is clearly contained within it,"
id. at 144, 105 S.Ct. at 1819, and may withdraw from the jury's
consideration portions of the indictment that are not supported
by the evidence adduced at trial without violating a
defendant's Fifth Amendment right to a grand jury. See also
Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed.
398 (1926); United States v. Anguilo, 847 F.2d 956, 964 (1st
Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 138, 102 L.Ed.2d
110 (1988). If the criminal charges against the defendant are
not broadened, such withdrawal does not constitute an
unconstitutional amendment of the indictment. See Russell v.
United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240
(1962); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4
L.Ed.2d 252 (1960). Therefore, if the government, instead of
making the present motion, proceeded to trial on the existing
indictment but failed to introduce any evidence that defendant
accessed the computer at the Wright Patterson Air Force Base
the court could properly withdraw this allegation in the
indictment from the jury's consideration without infringing
upon any constitutional guarantees of the defendant. The court
does not discern any legitimate reason for reaching a different
conclusion when prior to trial the government seeks to withdraw
an allegation in the indictment for which it does not intend to
offer any proof.*fn1 Accordingly, the court does not find
persuasive defendant's argument that resubmission to the grand
jury is necessary because "it cannot be said that an indictment
would have been returned in absence of evidence of the value of
the loss allegedly suffered by `the Air Force Logistics
Command, Wright Patterson Air Force Base in Dayton, Ohio.' "So
long as the narrowed indictment alleges the essential elements
of the charged offense, sufficiently informs the defendant of
the charges which he must defend, enables him to plead it to
bar future prosecutions for the same offense, and does not
broaden the charges against the defendant there is no Fifth
Amendment difficulty. See United States v. Miller, 471 U.S. at
135, 105 S.Ct. at 1814; United States v. Anguilo, 847 F.2d at
The proposed revised indictment satisfies each of these
requirements. First, it continues to allege the necessary
elements to charge an offense under 18 U.S.C. § 1030(a)(5),
namely, intentionally accessing a federal interest computer
without authorization, preventing authorized use of one or more
of such computers, and causing a loss to one or more others of
a value aggregating at least $1000 during any one year period.
Second, the proposed withdrawal of any reference to Wright
Patterson Air Force Base does not alter this court's prior
ruling that the indictment adequately informs the defendant of
the crime which he is charged, thus permitting him to prepare
his defense and to protect himself against future prosecutions
for the same charge. In addition, since the proposed indictment
does not broaden the charge against defendant, the court
rejects defendant's contention that the proposed withdrawal
will allow the government to prosecute defendant for a crime
different than originally charged by the grand jury.
Accordingly, the United State's motion is granted.
It is So Ordered.