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United States v. Levy

April 3, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


The government requests that the Court correct the Superceding Indictment, Cr. No. 04-559 (S-1) (JFB) ("the Indictment"), during trial. Because the Court finds that the requested change is ministerial and is otherwise authorized for the reasons stated below, the Court approves the request and, accordingly, corrects the Indictment.


The defendant, Kevin Pete Levy, is charged with, inter alia, being an unlawful alien in possession of ammunition in August 2002, in violation of Title 18, United States Code, Section 922(g)(5)(A). (Indict. ¶¶ 10-11.)*fn1 With respect to this charge, paragraph 11 specifically states:

On or about and between August 14, 2002, and August 15, 2002, both dates being approximate and inclusive, within the Eastern District of New York, the defendant KEVIN PETE LEVY, also known as "Kevin Augustus Robinson" and "Juvenile," being an alien who was illegally and unlawfully in the United States, did knowingly and intentionally possess in and affecting commerce ammunition, to wit: five Winchester & Wesson .32 caliber cartridge cases, and did knowingly and intentionally receive the ammunition, which had been shipped and transported in interstate commerce.

(Indict. ¶ 11). Before the grand jury, the government asked the case agent whether or not the shell casings that were collected from the scene of the alleged assault were manufactured by "Winchester and Wesson" (Gov Ex. 3500-SM-1.) The case agent answered in the affirmative, and further testified that they were manufactured in Illinois.

During trial, the jury heard the testimony of Agent Ismael Hernandez, a Special Agent with the Bureau of Alcohol, Tobacco, and Firearms (ATF), who is certified as an interstate-nexus expert. (Tr. 187-97, Mar. 28, 2006.) Agent Hernandez testified that the shell casings recovered from the scene of the alleged assault charged in Count One had to have traveled in interstate commerce, as they were manufactured by Winchester in East Alton, Illinois. (Tr. 192.) He testified that the ammunition was specifically called a "Winchester-Western" cartridge. (Tr. 193.) He further testified that to best of his knowledge, there is no such thing as a "Winchester and Wesson" cartridge. (Tr. 193.)

By letter dated March 28, 2006, the government requested that the Indictment be corrected to change the reference from "Winchester & Wesson" to the correct ammunition name, "Winchester-Western." The defendant argues that the error was more than a typographical error. In particular, the defendant asserts that the grand jury heard testimony including the wrong name, and the defendant has been prejudiced because he relied on the error.*fn2


There is no absolute requirement that a grand jury amend an indictment. Rather, "the district court or the prosecutor may make `ministerial change[s]' to the indictment, such as to correct a misnomer or typographical errors." United States v. Dhinsa, 243 F.3d 635, 667 (2d Cir. 2001) (citing United States v. McGrath, 558 F.2d 1102, 1105 (2d Cir. 1977) (collecting cases)); see also United States v. Miller, 116 F.3d 641, 669-70 (2d Cir. 1997) ("[T]he correction of merely technical errors, such as typographical or clerical mistakes, is permissible where it does not alter the essential substance of the charging terms."); United States v. Johnson, 741 F.2d 1338, 1341 (11th Cir. 1984) (finding that "amendments that are merely a matter of form are freely permitted" and "[m]atters of form include amendments to correct a misnomer") (internal quotations and citations omitted). Further, "[a]n indictment may be altered without resubmission to the grand jury as long as the alteration makes no material change and there is no prejudice to the defendant." Dhinsa, 243 F.3d at 667 (quoting United States v. Lorefice, 192 F.3d 647, 653 (7th Cir. 1999)).

Amendments to the indictment may occur at different stages during trial. See, e.g., McGrath, 558 F.2d at 1104 (approving amended complaint, that was reached by convening grand jury to issue superceding indictment following opening statements); see also Dhinsa, 243 F.3d at 669 (noting that amendment of the indictment at various stages of trial is not per se invalid); see also United States v. Cirami, 510 F.2d 69, 71 (2d Cir. 1975) (approving the reading of an amended complaint to the jury which was changed on motion by the government at the close of its case).

As a threshold matter, this Court finds the phrase at issue-"Winchester and Wesson"-was merely a misnomer. The first part of the name of the actual ammunition heard by the jury at trial-namely, Winchester-and the type of ammunition charged in the Indictment is identical. Next, it is not a stretch to imagine that the second word "Western" could be easily confused with "Wesson," particularly because "Wesson" is a brand-name commonly associated with firearms and ammunition. It is unlikely that the government intended to allege that the ammunition was called "Winchester & Wesson," where no such type of ammunition exists.

Further, changing the amendment would not prejudice the defendant. The Indictment fully apprised him of the nature of the "crime charged and the need to prepare a defense,"*fn3 as it provided him with adequate notice of the time, specified in a narrow date range, in which the alleged illicit possession took place. When viewed in conjunction with the charge in Count One, committing an assault with a dangerous weapon for the purpose of gaining entrance to, maintaining, and increasing his position in a criminal enterprise, 18 U.S.C. § 1959(a)(3), which involved the same dates, it is plain that the government is alleging that the possession of ammunition was in connection with the charged assault. The specificity was sufficient to "enable[] another court to determine the charge for double jeopardy purposes."*fn4

Moreover, the defendant cannot claim prejudice because, even if the Indictment remained as is, it would not support a Fed. R. Crim. P. Rule 29 motion for a judgment of acquittal based on an argument that the difference between the type of ammunition charged and that which the trial evidence demonstrated constituted a fatal variance. A slight variance in allegations and proof offered at trial is not fatal where a distinction is unimportant for purposes of the charged statute. See United States v. Brozyna, 571 F.2d 742, 745 (2d Cir. 1978). The type of weapon or ammunition possessed is not essential to a ...

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