# United States v. Louis Goldstein, and Selma Goldstein > Court of Appeals for the Third Circuit · August 6, 1974 · 502 F.2d 526 URL: https://www.frixlaw.com/law-library/cases/9460988 ## Case - **Full name:** UNITED STATES of America v. Louis GOLDSTEIN, Appellant, and Selma Goldstein - **Court:** Court of Appeals for the Third Circuit - **Decided:** August 6, 1974 - **Citations:** 502 F.2d 526; 34 A.F.T.R.2d (RIA) 5692; 1974 U.S. App. LEXIS 7301 - **Precedential status:** Published - **Opinion:** Dissent by Hunter - **Judges:** Hunter, Seitz, Van Dusen, Adams, Weis, Miller, Aldisert, Gibbons, Rosenn, Garth - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9460988 ## Opinion text HUNTER, Circuit Judge, with whom SEITZ, Chief Judge and VAN DUSEN, Circuit Judge, join (dissenting): The majority cites to three functions of an indictment and concludes that the defendant “does not and cannot claim prejudice” on the basis of two of these functions, i. e., to insure that a defendant is “informed of the nature and cause of the accusation” 1 and to protect against double jeopardy should an acquittal result. Indeed, the district court found: “In this case, as Mr. Goldstein concedes, nothing which has occurred infringes his right to fair notice or his right to be protected against twice being put in jeopardy for the same offense.” *532 Even had Goldstein not conceded this, the record would amply support this conclusion. The third function of the indictment process, referred to by the majority, is the “duty of the grand jury to shield a citizen from unfounded charges and to require him to appear in court in defense, only if probable cause has been found by that independent body.” But as the majority implicitly concedes, this function has no relevance to an indictment which is not constitutionally required. The fifth amendment provides that “ [n] o person shall be held to answer for a capital, or otherwise infamous crime,' unless on a presentment or indictment of a Grand Jury.” Goldstein was not charged with an “infamous” crime 2 and hence cannot rely on the constitutional right to be convicted only as charged by a grand jury. Thus, we are presented with the question whether the principles governing indictments which are constitutionally required apply with equal force to indictments which are not constitutionally required. 3 To my knowledge, neither the Supreme Court nor this Court has ever confronted this question. In Russell v. United States, 369 U.S. 749 , 82 S.Ct. 1038 , 8 L.Ed.2d 240 (1962), cited by the majority, the Supreme Court sought to clarify the meaning of Fed.R.Crim.Proc. 7(c) which provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” It reasoned that the sufficiency of the indictment 4 must be judged against the fifth amendment prohibition that a person shall not be subject to double jeopardy and the sixth amendment requirement that an accused “be informed of the nature and cause of the accusation.” As to the latter, which might be characterized as the apprisal function of the indictment, it was argued in Russell that if the indictment was defective in this respect, it could be cured by a bill of particulars, provided (presumably) that no prejudice would result. The Supreme Court rejected this argument, but for a reason which is particularly revealing and instructive: “To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. See Orfield, Criminal Procedure from Arrest to Appeal, 243. * * * * -X- -X- “ ‘If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says “no person shall be held to answer,” may be frittered away until its value is almost destroyed. . . . Any other doctrine would place the rights of the citizen, *533 which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.’ Ex parte Bain, supra, 121 U.S. at 10, 13 [ 7 S.Ct. 781 at 786 ]. We reaffirmed this rule only recently, pointing out that ‘The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.’ Stirone v. United States supra, 361 U.S. at 218 [ 80 S.Ct. 270 at 273 ].” 369 U.S. at 770-771 , 82 S.Ct. at 1050 (emphasis added). The import is clear. Modification of an indictment, whether by the prosecutor or by the court, is impermissible when it would violate the defendant’s right to be convicted only as charged by the grand jury. Equally clear is that Ex Parte Bain, 121 U.S., 12 -13, 7 S.Ct. 781 (1887), only held that an indictment brought by a grand jury is a jurisdictional prerequisite when the constitution requires a grand jury. Where the defendant, however, as here, possesses no constitutional right to be charged by a grand jury, I do not believe his conviction should be reversed unless the constructive amendment to the indictment substantially affected his right to a fair trial. The majority disagrees, relying chiefly on Fed.R.Crim.Proc. 7(e) which provides : “The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged . and if substantial rights of the defendant are not prejudiced.” 5 The majority reads into Rule 7(e) a negative inference that Congress intended no amendments to indictments except by the grand jury. Several factors, in my view, weigh against such a construction. First, as the district court recognized, nothing in the Comments to Rule 7(e) suggests that the drafters addressed themselves to the problem now before us. Therefore, the absence of a rule on amendments to indictments may as readily be interpreted as a Congressional deference to case law development 6 as an unspoken Congressional prohibition against all such amendments. 7 More *534 over, as the district court noted, the drafters of the federal rules, “in line with the modern view on the consequence of technical errors in criminal proceedings, have elsewhere indicated that rule construction based on factors other than simplicity, fairness and expedition is to be avoided.” Rule 2 provides : “These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” I therefore see no barrier to permitting amendments to an indictment which is not constitutionally required so long as the defendant is not prejudiced. My major disagreement with the majority, though, involves the role of Rule 52(a) which provides as follows: “Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Even assuming, arguendo, the majority is correct in its view that Rule 7(e) confers by implication, not the right to a grand jury indictment, but the right to be free from amendments to the charge once the prosecutor elects to proceed by indictment, it does not necessarily follow that Goldstein’s conviction should be vacated. Violations of some constitutional rights are never disregarded, but are presumed to be prejudicial. 8 Violations of other constitutional rights may be disregarded where such violation is “harmless beyond a reasonable doubt.” 9 The present situation, however, involved at most — even accepting arguendo the majority’s position — a violation of a procedural right conferred by the federal rules. Thus, absent constitutional error, Rule 52, in my view, ought to apply, 10 and Goldstein’s conviction should be vacated only if the alleged procedural error “substantially” affected Goldstein’s right to a fair trial. The majority completely brushes aside Rule 52(a) and adopts a per se rule of prejudice whenever an indictment which is not constitutionally required is amended by other than the grand jury. 11 The majority identifies two forms of prejudice that presumably, in their view, rise to sufficient stature to warrant a prejudice per se rule: 1) “[t]he prosecution is afforded the benefit of discovery through use of process for compelled appearances of witnesses before the grand jury; ” and 2) “in the trial court there is that subtle, though undeniable, stigma attached to a defendant who has been indicted by an impartial grand jury.” 12 While I do not seek to minimize the possibility of prejudice arising from these factors, I am wholly unpersuaded that this justifies our foregoing the task of balancing any such prejudice against the weight of the evidence of guilt. Goldstein has not been denied *535 any “rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967). Consequently, absent any constitutional error, which the majority has not identified, I agree with the district court that Rule 52(a) applies to this ease. Furthermore, I agree with the district court that Goldstein has not shown any prejudice that has “substantially affected” his rights to a fair trial. In my view, the judgment- of the district court, therefore, should be affirmed. . U.S.Const, amend. VI. . See Majority Opinion at n. 4. . Fed.Rules Crim.Proc. 7(a) provides that any offense other than a felony “may be prosecuted by indictment or information.” 8 Moore’s Federal Practice If 7.02 (1973) notes that frequently the prosecutor presents a misdemeanor to the grand jury “where a felony is also charged against the same defendant and the prosecutor wishes to join both classes of offenses in one indictment.” This appears to be precisely the situation which occurred in this case. . Although the indictment in Russell was required only by statute, the Supreme Court held that Congress intended to incorporate the protection of the fifth amendment grand jury requirement. 369 U.S. at 761 , 82 S.Ct. 1038 . . Had the prosecutor proceeded by information and had he sought an amendment, the record leaves no doubt that an amendment would have been permissible under Rule 7(e). . In footnote 6 of its opinion, the majority cites to the original Committee Note to Subdivision (e) of Rule 7 which states that, “ [t] liis rule continues the existing law that, unlike an indictment, an information may be amended . ” The Committee Note cites as authority for this observation Muncy v. United States, 289 F. 780 (4th Cir. 1923). Muncy , however, involved the question whether an information could be amended. In answering that question in the affirmative, the Fourth Circuit cited to the general rule that informations may be amended but indictments may not be amended except by the grand jury. As I have noted previously, however, the general rules governing indictments, as articulated by the Supreme Court and this Court, have been formulated in situations where an indictment was constitutionally required. Thus, it is quite reasonable to conclude, in my view, that by enacting Rule 7(e), Congress merely incorporated existing law (which had not yet confronted the issue now before us). I therefore believe we should be free to shape the law as justice requires and not feel constrained by any negative inference under Rule 7(e). . Since Rule 7 (e) is silent on amendments to indictments, logically, if the majority feels compelled to draw an adverse inference, it would seem they should conclude that any amendment to an indictment other than by *534 the grand jury is impermissible. Yet the majority recognizes that courts have uniformly held that insubstantial or immaterial amendments by a court are permissible. Thus, the majority implicitly recognizes that the rules governing indictments have been shaped by considerations other than the fact that Rule 7 is silent on the subject of amendments to indictments. Cf. Russell v. United States, 369 U.S. 749, 761-762 , 82 S.Ct. 1038 , 8 L.Ed.2d 240 (1962). . See Chapman v. California, 386 U.S. 18 , 23 n. 8, 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). . See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). . That Rule 52(a) applies to indictments is beyond question. Russell v. United States, 369 U.S. at 762 , 82 S.Ct. 1038 . . The majority correctly notes that the Fifth Circuit is in accord with tins holding. United States v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert. denied, 405 U.S. 1016 , 92 S.Ct. 1290 , 31 L.Ed.2d 478 . Fischetti , however, advances no reason for its conclusion ; lienee, I would reject it as unpersuasive. . The majority implicitly concedes that failure to afford Goldstein the protective “shield” of the grand jury is not a basis for a claim of prejudice, since he did not have a right to a grand jury. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460988. Public record. Not legal advice.