The opinion of the court was delivered by: Judge: Hon. Kendall J. Newman
UNITED STATES'S MOTION FOR
AMEND LEAVE TO
PURSUANT TO INFORMATION
FED. R. CRIM. P. 7(E) )) DATE: November 16, 2012
TIME: 9:00 a.m.
MOTION FOR LEAVE TO AMEND
The United States, through the undersigned counsel, moves for leave to amend Count Two of the Information filed in this case. The defendant does not oppose this motion.
Under Federal Rule of Criminal Procedure 7(e), this Court "may permit an information to be amended at any time before the verdict or finding." Fed. R. Crim. P. 7(e). However, an information shall not be amended if the amendment would charge "an additional or different offense" or if "a substantial right of the defendant is prejudiced" by the amendment. Id. The proposed amendment will not involve an additional or different offense, nor prejudice a substantial right of the defendant.
Count Two of the Information charges the defendant with a violation of 16 U.S.C. § 551 and 36 C.F.R. § 261.54(d), operating a vehicle in violation of a Forest Service order. The Information then incorrectly references Forest Order No. 10-02 - "Regulation of off-highway vehicles on Forest Service Roads." The United States seeks to amend the Information to state the proper subsection of 36 C.F.R. § 261.54 and the proper Forest Service order, Order No. 17-98-223, section two, which similarly regulates off-highway vehicles on Forest Service roads.
The proposed amendment does not add an additional or different offense, nor change the penalty for the charged offense. Instead, the amendment corrects a drafting error in the Information. The caption of the Information states Count Two as "Riding Off-Highway Vehicle on Forest Service Road." That continues to be precisely the offense charged.
On September 6, 2012, the United States provided defense counsel with the a copy of the correct Forest Service order, Order No. 17-98-223. Along with that production, the United States informed defense counsel that Order No. 17-98-223, section two, was the "proper order," and that 36 C.F.R. § 261.54(a), rather than 36 C.F.R. § 261.54(d) was the proper regulation charged. The United States informed defense counsel that it would correct the drafting error before trial.
On November 13, 2012, the United States provided a copy of the Amended Information to the defense. On November 14, 2012, defense counsel confirmed they do not oppose the Court granting this motion for leave to amend the information.
The proposed amendment would not burden a substantial right of the defendant, nor cause any prejudice to the defendant. Thus, the United States requests the Court grant the United States leave to amend the Information.
Dated: November 14, 2012 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney /s/ Jeffrey A. Spivak JEFFREY A. SPIVAK Special Assistant U.S. Attorney
FOR GOOD CAUSE SHOWN, THE GOVERNMENT IS GRANTED LEAVE TO AMEND THE INFORMATION IN THIS CASE. THIS AMENDED INFORMATION SHALL BE FILED WITH THE CLERK OF THE COURT BY 5PM ON NOVEMBER 15, 2012.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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