APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-00512-02)
Before Aldisert, Weis and Garth, Circuit Judges.
One count of a federal indictment charged bribery to affect the acts of two officials, but at pretrial, the prosecution elected to prove conduct only as to one. The trial court permitted an alteration of the indictment to that effect. We conclude that the modification did not constitute an amendment to the indictment requiring grand jury approval. Accordingly, we reject the petitioner's contention to the contrary and affirm a district court judgment denying a writ of habeas corpus.
Petitioner sought postconviction relief under 28 U.S.C. § 2255 from his conviction of bribery with intent to influence an official act in violation of 18 U.S.C. § 201(b)(1), and aiding and abetting in violation of 18 U.S.C. § 2. He alleged that the indictment had been improperly amended, that there was insufficient evidence of corruption, and that the government had failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After an evidentiary hearing, the district court denied the petition.
Petitioner's conviction resulted from an indictment containing three substantive counts and one count of conspiracy for the bribery of two Internal Revenue agents. The incidents occurred during an audit of petitioner's returns for the years 1974 and 1975 by Internal Revenue agent Robert A. Mastrogiovanni and a simultaneous attempt by Revenue Officer Arnold R. Small to collect delinquent taxes for the years 1971 and 1972. A superseding indictment charged in Count I that petitioner, together with his accountant, had bribed Agent Mastrogiovanni. Count IV charged a conspiracy by petitioner and the accountant to bribe both officials. Counts II and III alleged that Officer Small had been bribed on two separate occasions to influence his decision and that of Agent Mastrogiovanni.
Defense counsel filed a motion to dismiss Counts II and III because they were duplicitous. After a pretrial argument, the government made an election on each of those counts. In Count II, the prosecution chose to assert that the bribe was given to Small to influence the decision of Mastrogiovanni. On Count III, the proof was to be that Small received the bribe to affect his own decision. To accomplish this result, the government moved to delete the language in Count II pertaining to the attempt to influence Small and in Count III the wording applicable to Mastrogiovanni.
In response to the government motion to remove these references, counsel for Milestone said: "Well, your Honor, that was my alternative request in my motion to dismiss to strike that language as surplusage; and your Honor, I have no objection to the Government making the election at this time." The court denied petitioner's motion to dismiss, but granted the government's motion for election.
At the conclusion of the trial, a redacted version of the indictment was sent out with the jury for its use in the course of its deliberation. The jury convicted the petitioner on Count III, but found him not guilty on the other counts. On direct appeal, the conviction was affirmed. United States v. Milestone, 591 F.2d 1337 (3d Cir.), cert. denied, 444 U.S. 825, 100 S. Ct. 47, 62 L. Ed. 2d 32 (1979).
In this § 2255 proceeding, petitioner alleges that the indictment was impermissibly amended, and, having failed to secure the assent of the grand jury to the change, the court lacked jurisdiction to convict the defendant. The petition also contends that the evidence was insufficient because Milestone had simply given money to the officer without an agreement of any kind. The third asserted ground for relief is that the government but not the prosecutor personally failed to disclose to the defense that Officer Small, who testified at trial, had been officially charged with various derelictions of duty by the Internal Revenue Service and was being processed for dismissal.
The petition was assigned to the same district judge who had presided over the trial. After a hearing, he determined that the indictment had not been amended. He analogized the election to several situations, including one where an offense is charged conjunctively but either matter would constitute a violation. In that situation, the court reasoned, the government could present evidence as to either theory and the case could be submitted to the jury on that basis. Turning to the Brady claim, the trial judge found that neither the prosecutor nor the defense attorney was aware that official charges had been lodged against Officer Small by the agency at the time he testified. But since the government had informed the defense before trial about the preliminary stages of Small's difficulties with the Service and the defendant did cross-examine the officer about the matter, the court was convinced that there was no Brady violation. The court did not discuss the insufficiency claim.
Preliminarily, we find that the trial court did not err in the dismissal of the Brady claim, and we choose not to discuss it further. Similarly, there is no basis in the record to conclude that there was insufficient evidence to support the conviction.*fn1
The issue most vigorously pressed on this appeal is the alleged amendment of the indictment in violation of the principle set out in the opinion in Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849 (1887). That venerable case stands for the proposition that after an indictment has been returned, its charges may not be broadened through amendment except by the grand jury itself. See Stirone v. United States, 361 U.S. 212, 215-17, 80 S. Ct. 270, 272-273, 4 L. Ed. 2d 252 (1960); United States v. Goldstein, 502 F.2d 526, 528-29 (3d Cir. 1974) (in banc). Bain discussed the unique function of the grand jury and the constitutional right to an indictment by that body. According to the Court, if the charge on which the defendant stood trial was not the complete product of the grand jury, then the trial court lacked power to try and sentence him. Since this was a matter of jurisdiction, it could be reviewed through a writ of habeas corpus.*fn2 Consistent with this view, it has been held that even if the defendant consented to an amendment, jurisdiction would not be conferred on the court, see United States v. Norris, 281 U.S. 619, 622-23, 50 S. Ct. 424, 425, 74 L. Ed. 1076 (1930); United States v. Williams, 412 F.2d 625, 627 (3d Cir. 1969), although this proposition is questionable today since Fed.R.Crim.P. 7(b) permits a defendant to waive an indictment altogether in noncapital cases.*fn3
Rather than decide this appeal on a waiver basis, we prefer to go to the merits. That requires that we analyze Ex parte Bain, supra, a much quoted and much discussed decision. On first impression, that case appears to be controlling, but close examination reveals that it is distinguishable on crucial factual grounds. There, the defendant was charged with a species of bank fraud, specifically, making a false statement "with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of the association . . .. " 121 U.S. at 4, 7 S. Ct. at 783. The statute under which defendant was indicted, however, proscribed only false statements made with intent to deceive "any officer of the association, or any agent appointed to examine the ...