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The Habeas Citebook: Prosecutorial Misconduct
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Seventh Circuit: Trial Judge Violated 5th Amendment by Modifying Instructions to Allow Jury to Convict on Offenses Not Charged in Indictment

The U.S. Court of Appeals for the Seventh Circuit held that a district court judge violated Ionel Muresanu’s Fifth Amendment right to be tried only on charges brought by indictment when the judge modified the jury instructions to permit conviction on offenses not charged in the indictment.

Muresanu was charged with one count of possessing 15 or more counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3) for his role in making and using counterfeited ATM cards to withdraw money from victims’ accounts. He was also charged with three counts of aggravated identity theft in violation of 18 U.S.C. § 1028(A)(a)(1). But the indictment charging those offenses alleged Muresanu “did knowingly attempt to transfer, possess, and use, without lawful authority, a means of identification ... knowing that said means of identification belonged to another person.”

After the Government presented its case at trial, Muresanu’s counsel moved for judgment of acquittal on the identity theft offenses, arguing that since attempted identity theft as charged in the indictment was not a federal crime, then no rational jury could return a verdict of guilty on those counts. The trial court denied the motion on the grounds that a defect in the indictment was to be raised pretrial in a Rule 12(b)(3) motion. But in order to submit the case to the jury, the judge modified the instructions to remove all references to “attempt,” thus reframing the identity theft offenses to be completed acts and not attempts as charged in the indictment. The jury found Muresanu guilty of all four counts, and he was sentenced to 24 months on each of the identity theft convictions to be run concurrently with each other but consecutively to a 34-month sentence on the possession of counterfeit access devices.

He appealed, arguing, inter alia, that the judge’s alteration of the jury instructions led the jury to convict him of offenses not charged in the indictment, violating his Fifth Amendment right to be tried only on charges issued by a grand jury.

The Seventh Circuit observed “[t]he federal criminal code does not contain a general attempt statute; attempts to commit a crime are punishable only if the statutory definition of the crime itself proscribes attempts.” United States v. Rovetuso, 768 F.2d 809 (7th Cir. 1985). While many federal criminal statutes expressly proscribe attempts, section 1028A(a)(1) does not. Consequently, the grand jury failed to charge Muresanu with a federal crime in counts two through four when it charged him with “attempt[ing] to transfer, possess, and use ... a means of identification [that] ... belonged to another person.”

The Fifth Amendment guarantees the right of an accused to be tried only on charges in an indictment returned by a lawfully empaneled grand jury. Stirone v. United States, 361 U.S. 212 (1960). Altering an indictment without approval of the grand jury “is per se reversible error.” United States v. Galiffa, 734 F.2d 306 (7th Cir. 1984). There are two kinds of permissible variances in an indictment: (1) a judge may correct a typographical error or a misnomer, United States v. Leichtam, 948 F.2d 370 (7th Cir. 1991), and (2) a judge may narrow an indictment to charge fewer offenses or lesser included offenses. Id.

But in Muresanu’s case, the “judge altered the substance of the indictment by changing the offense charged in counts two through four from an attempt to a completed crime of aggravated identity theft — hardly a narrowing of the indictment.” Thus, this was an impermissible variance, the Court concluded.

The Court rejected the Government’s argument that Muresanu waived the issue by not raising it pretrial in a Rule 12(b)(3) motion. While a challenge to a defective indictment must be raised by such a motion, Muresanu was challenging the judge’s alteration of the jury instructions which occurred after trial.

Accordingly, the Court vacated the judgment as to counts two through four and remanded to the district court for resentencing. See: United States v. Muresanu, 951 F.3d 833 (7th Cir. 2020).

Writer’s note: This case also discusses why the Seventh Circuit sided with the Fifth and Tenth Circuits — as opposed to the Eleventh Circuit — in holding that, pursuant to United States v. Cotton, 535 U.S. 625 (2002), a court is not deprived of jurisdiction even when an indictment fails to charge a crime.  

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Related legal case

United States v. Muresanu

 

 

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