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U.S. v. CONN

United States District Court, C.D. Illinois, Springfield Division


December 21, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY CONN, Defendant.

The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge

OPINION

The Court now considers the parties' Joint Motion to Strike Surplusage.

FACTS

  On June 1, 2005, the Government filed an Information against Defendant Jeffrey Conn that charged Mr. Conn with bank fraud pursuant to 18 U.S.C. § 1344. The Information alleged all the necessary elements of bank fraud but it referred to 18 U.S.C. § 1344(a) and (b) when, in fact, § 1344 does not have a subparagraph (a) or (b). Instead, the statute consists of § 1344(1) and (2).

  The Court brought this matter to counsels' attention after Mr. Conn's December 19, 2005, Sentencing Hearing. On December 20, 2005, the parties filed a joint motion to strike subparagraphs "(a) and (b)" from the Information because those subparagraphs were surplusage.

  ANALYSIS

  Federal Rule of Criminal Procedure 7(d) allows a court to strike surplusage from an information upon the defendant's motion. Amendments to an Indictment will be allowed if they do not change an essential or material element of the charge. See United States v. Field, 875 F.2d 130, 133 (7th Cir. 1989). "This includes the correction of obvious clerical or typographical errors in the indictment." Id.

  In the instant case, the Government filed an Information which contained a typographical error. The error, a reference to § 1344 "(a) and (b)" instead of "(1) and (2)," did not change an essential or material element of the bank fraud charge. Thus, the Information is valid despite the typographical error. See United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000) ("In order for an indictment to be valid it must allege all of the elements which are necessary to constitute a violation of the statute.").

  Ergo, the Joint Motion to Strike Surplusage (d/e 13) is ALLOWED. The Clerk's Office is directed to strike "(a) and (b)" from the Information as it pertains to 18 U.S.C. § 1344. The Judgment and Conviction Order for this case shall refer to 18 U.S.C. § 1344.

  IT IS SO ORDERED.

20051221

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