July 3, 2013
UNITED STATES OF AMERICA, Plaintiff,
JAMES STEWART RICHARDS, Defendant.
STIPULATION AND ORDER TO AMEND SUPERSEDING INDICTMENT
MORRISON C. ENGLAND, Jr., Chief District Judge.
In the course of discussions of this case with defense counsel, Government counsel has recently become aware of issues with the figures recited in the superseding indictment. Having raised these issues with defense counsel, the parties agree that these are in the nature of typographical errors that may be corrected without resort to the grand jury.
Government counsel has identified two errors in the table setting forth the years and amounts of tax deficiencies, and a resulting error in the total figure recited.
Federal Income Tax Due and Owing (as Federal Income Tax stated in superseding Due and Owing Tax Year indictment) (correct) Due On or About 1994 6, 639 6, 639 April 15, 1995 1995 14, 367 14, 367 April 15, 1996 1996 18, 113 18, 113 April 15, 1997 1997 17, 284 17, 284 April 15, 1998 1998 17, 044 17, 044 April 15, 1999 1999 12, 507 12, 507 April 15, 2000 2000 25, 199 25, 199 April 15, 2001 200115, 829 15, 529 April 15, 2002 2002 8, 970 8, 970 April 15, 2003 2003 75, 142 41, 923 April 15, 2004 Total: 177, 875 177, 575
For the 2001 tax year, a typographical error resulted in the inclusion of $300 more in taxes due than actually occurred. As to the 2003 tax year, Government counsel inadvertently used the amount of tax due and owing together with penalties and interest. Nonetheless, in the superseding indictment, the total of $177, 875 was calculated on the 2003 figure of taxes due without penalties and interest. In other words, if one added all the figures due and owing in the superseding indictment, it would amount to a total of $211, 094 rather than the $177, 875 figure found in the superseding indictment.
An indictment may be amended to correct errors where such correction does not prejudice the defendant or mislead him as to the charges against him. See U.S. v. Neill, 166 F.3d 943, 947-948 (9th Cir. 1999) (no error after matter submitted to jury in amending indictment to reflect bank robbed was the Bank of Salem, not Wells Fargo); U.S. v. Lim, 984 F.2d 331, 337 (upon motion to dismiss, district court properly allowed amendment of indictment to reflect code section charged). Here, the corrected figures in the tax due table benefit the defendant. Thus, Mr. Richards' counsel indicates Mr. Richards is amenable to amendment of the superseding indictment without returning to the grand jury.
The parties therefore stipulate and agree that the superseding indictment in this matter be amended such that the tax year 2001 tax due and owing reflect 15, 529, the tax year 2003 due and owing reflect 41, 923, and the overall tax due and owing reflect 177, 575.
I, James Richards, have reviewed this issue with my counsel. I understand my right to be charged by indictment returned by a grand jury and to the extent necessary to effect the changes discussed in this stipulation, I waive that right and consent that the proceeding may be by amendment of the superseding indictment as set forth in this stipulation.
For the reasons set forth in the stipulation between the parties, the Court finds good cause for allowing the amendment of the superseding indictment as follows:
1. The tax year 2001 tax due and owing should reflect 15, 529;
2. The tax year 2003 due and owing reflect 41, 923; and
3. The overall tax due and owing reflect 177, 575.
The government shall file an amended superseding indictment consistent with this order, indicating in interlineation in the caption that the superseding indictment is "amended per court order dated July 1, 2013", and interlineating the information outlined above in the relevant portion of the superseding indictment.
IT IS SO ORDERED.