Notes of Advisory Committee on Rules—1944

Note to Subdivision (a). 1. This rule gives effect to the following provision of the Fifth Amendment to the Constitution of the United States: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *". An infamous crime has been defined as a crime punishable by death or by imprisonment in a penitentiary or at hard labor, Ex parte Wilson, 114 U.S. 417, 427; United States v. Moreland, 258 U.S. 433. Any sentence of imprisonment for a term of over one year may be served in a penitentiary, if so directed by the Attorney General, 18 U.S.C. 753f [now 4082, 4083] (Commitment of persons by any court of the United States and the juvenile court of the District of Columbia; place of confinement; transfers). Consequently any offense punishable by imprisonment for a term of over one year is an infamous crime.

2. Petty offenses and misdemeanors for which no infamous punishment is prescribed may now be prosecuted by information, 18 U.S.C. 541 [see 1] (Felonies and misdemeanors); Duke v. United States, 301 U.S. 492.

3. For a discussion of the provision for waiver of indictment, see Note to Rule 7(b), infra.

4. Presentment is not included as an additional type of formal accusation, since presentments as a method of instituting prosecutions are obsolete, at least as concerns the Federal courts.

Note to Subdivision (b). 1. Opportunity to waive indictment and to consent to prosecution by information will be a substantial aid to defendants, especially those who, because of inability to give bail, are incarcerated pending action of the grand jury, but desire to plead guilty. This rule is particularly important in those districts in which considerable intervals occur between sessions of the grand jury. In many districts where the grand jury meets infrequently a defendant unable to give bail and desiring to plead guilty is compelled to spend many days, and sometimes many weeks, and even months, in jail before he can begin the service of his sentence, whatever it may be, awaiting the action of a grand jury. Homer Cummings, 29 A.B.A.Jour. 654–655; Vanderbilt, 29 A.B.A.Jour. 376, 377; Robinson, 27 Jour. of the Am. Judicature Soc. 38, 45; Medalie, 4 Lawyers Guild R. (3)1, 3. The rule contains safeguards against improvident waivers.

The Judicial Conference of Senior Circuit Judges, in September 1941, recommended that "existing law or established procedure be so changed, that a defendant may waive indictment and plead guilty to an information filed by a United States attorney in all cases except capital felonies." Report of the Judicial Conference of Senior Circuit Judges (1941) 13. In September 1942 the Judicial Conference recommended that provision be made "for waiver of indictment and jury trial, so that persons accused of crime may not be held in jail needlessly pending trial." Id. (1942) 8.

Attorneys General of the United States have from time to time recommended legislation to permit defendants to waive indictment and to consent to prosecution by information. See Annual Report of the Attorney General of the United States (Mitchell) (1931) 3; Id. (Mitchell) (1932) 6; Id. (Cummings) (1933) 1, (1936) 2, (1937) 11, (1938) 9; Id. (Murphy) (1939) 7.

The Federal Juvenile Delinquency Act [now 18 U.S.C. 5031–5037], now permits a juvenile charged with an offense not punishable by death or life imprisonment to consent to prosecution by information on a charge of juvenile delinquency, 18 U.S.C. 922 [now 5032, 5033].

2. On the constitutionality of this rule, see United States v. Gill, 55 F.2d 399 (D.N.M.), holding that the constitutional guaranty of indictment by grand jury may be waived by defendant. It has also been held that other constitutional guaranties may be waived by the defendant, e. g., Patton v. United States, 281 U.S. 276 (trial by jury); Johnson v. Zerbst, 304 U.S. 458, 465 (right of counsel); Trono v. United States, 199 U.S. 521, 534 (protection against double jeopardy); United States v. Murdock, 284 U.S. 141, 148 (privilege against self-incrimination); Diaz v. United States, 223 U.S. 442, 450 (right of confrontation).

Note to Subdivision (c). 1. This rule introduces a simple form of indictment, illustrated by Forms 1 to 11 in the Appendix of Forms. Cf. Rule 8(a) of the Federal Rules of Civil Procedure [28 U.S.C., Appendix]. For discussion of the effect of this rule and a comparison between the present form of indictment and the simple form introduced by this rule, see Vanderbilt, 29 A.B.A.Jour. 376, 377; Homer Cummings, 29 A.B.A.Jour. 654, 655; Holtzoff, 3 F.R.D. 445, 448–449; Holtzoff, 12 Geo. Washington L.R. 119, 123–126; Medalie, 4 Lawyers Guild R. (3)1, 3.

2. The provision contained in the fifth sentence that it may be alleged in a single count that the means by which the defendant committed the offense are unknown, or that he committed it by one or more specified means, is intended to eliminate the use of multiple counts for the purpose of alleging the commission of the offense by different means or in different ways. Cf. Federal Rules of Civil Procedure, Rule 8(e)(2) [28 U.S.C., Appendix].

3. The law at present regards citations to statutes or regulations as not a part of the indictment. A conviction may be sustained on the basis of a statute or regulation other than that cited. Williams v. United States, 168 U.S. 382, 389; United States v. Hutcheson, 312 U.S. 219, 229. The provision of the rule, in view of the many statutes and regulations, is for the benefit of the defendant and is not intended to cause a dismissal of the indictment, but simply to provide a means by which he can be properly informed without danger to the prosecution.

Note to Subdivision (d). This rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial. The authority of the court to strike such surplusage is to be limited to doing so on defendant's motion, in the light of the rule that the guaranty of indictment by a grand jury implies that an indictment may not be amended, Ex parte Bain, 121 U.S. 1. By making such a motion, the defendant would, however, waive his rights in this respect.

Note to Subdivision (e). This rule continues the existing law that, unlike an indictment, an information may be amended, Muncy v. United States, 289 F. 780 (C.C.A. 4th).

Note to Subdivision (f). This rule is substantially a restatement of existing law on bills of particulars.

Notes of Advisory Committee on Rules—1966 Amendment

The amendment to the first sentence eliminating the requirement of a showing of cause is designed to encourage a more liberal attitude by the courts toward bills of particulars without taking away the discretion which courts must have in dealing with such motions in individual cases. For an illustration of wise use of this discretion see the opinion by Justice Whittaker written when he was a district judge in United States v. Smith, 16 F.R.D. 372 (W.D.Mo. 1954).

The amendment to the second sentence gives discretion to the court to permit late filing of motions for bills of particulars in meritorious cases. Use of late motions for the purpose of delaying trial should not, of course, be permitted. The courts have not been agreed as to their power to accept late motions in the absence of a local rule or a previous order. See United States v. Miller, 217 F.Supp. 760 (E.D.Pa. 1963); United States v. Taylor, 25 F.R.D. 225 (E.D.N.Y. 1960); United States v. Sterling, 122 F.Supp. 81 (E.D.Pa. 1954) (all taking a limited view of the power of the court). But cf. United States v. Brown, 179 F.Supp. 893 (E.D.N.Y. 1959) (exercising discretion to permit an out of time motion).

Notes of Advisory Committee on Rules—1972 Amendment

Subdivision (c)(2) is new. It is intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, §1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, §408(a)(2).

The Congress viewed the provisions of the Organized Crime Control Act of 1970 as reestablishing a limited common law criminal forfeiture. S. Rep. No. 91–617, 91st Cong., 1st Sess. 79–80 (1969). The legislative history of the Comprehensive Drug Abuse Prevention and Control Act of 1970 indicates a congressional purpose to have similar procedures apply to the forfeiture of profits or interests under that act. H. Rep. No. 91–1444 (part I), 91st Cong., 2d Sess. 81–85 (1970).

Under the common law, in a criminal forfeiture proceeding the defendant was apparently entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction. Subdivision (c)(2) provides for notice. Changes in rules 31 and 32 provide for a special jury finding and for a judgment authorizing the Attorney General to seize the interest or property forfeited.

Notes of Advisory Committee on Rules—1979 Amendment

The amendment to rule 7(c)(2) is intended to clarify its meaning. Subdivision (c)(2) was added in 1972, and, as noted in the Advisory Committee Note thereto, was "intended to provide procedural implementation of the recently enacted criminal forfeiture provision of the Organized Crime Control Act of 1970, Title IX, §1963, and the Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, §408(a)(2)." These provisions reestablished a limited common law criminal forfeiture, necessitating the addition of subdivision (c)(2) and corresponding changes in rules 31 and 32, for at common law the defendant in a criminal forfeiture proceeding was entitled to notice, trial, and a special jury finding on the factual issues surrounding the declaration of forfeiture which followed his criminal conviction.

Although there is some doubt as to what forfeitures should be characterized as "punitive" rather than "remedial," see Note, 62 Cornell L.Rev. 768 (1977), subdivision (c)(2) is intended to apply to those forfeitures which are criminal in the sense that they result from a special verdict under rule 31(e) and a judgment under rule 32(b)(2), and not to those resulting from a separate in rem proceeding. Because some confusion in this regard has resulted from the present wording of subdivision (c)(2), United States v. Hall, 521 F.2d 406 (9th Cir. 1975), a clarifying amendment is in order.

Notes of Advisory Committee on Rules—1987 Amendment

The amendments are technical. No substantive change is intended.

Committee Notes on Rules—2000 Amendment

The rule is amended to reflect new Rule 32.2, which now governs criminal forfeiture procedures.

GAP Report—Rule 7. The Committee initially made no changes to the published draft of the Rule 7 amendment. However, because of changes to Rule 32.2(a), discussed infra, the proposed language has been changed to reflect that the indictment must provide notice of an intent to seek forfeiture.

Committee Notes on Rules—2002 Amendment

The language of Rule 7 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic.

The Committee has deleted the references to "hard labor" in the rule. This punishment is not found in current federal statutes.

The Committee added an exception for criminal contempt to the requirement in Rule 7(a)(1) that a prosecution for felony must be initiated by indictment. This is consistent with case law, e.g., United States v. Eichhorst, 544 F.2d 1383 (7th Cir. 1976), which has sustained the use of the special procedures for instituting criminal contempt proceedings found in Rule 42. While indictment is not a required method of bringing felony criminal contempt charges, however, it is a permissible one. See United States v. Williams, 622 F.2d 830 (5th Cir. 1980). No change in practice is intended.

The title of Rule 7(c)(3) has been amended. The Committee believed that potential confusion could arise with the use of the term "harmless error." Rule 52, which deals with the issues of harmless error and plain error, is sufficient to address the topic. Potentially, the topic of harmless error could arise with regard to any of the other rules and there is insufficient need to highlight the term in Rule 7. Rule 7(c)(3), on the other hand, focuses specifically on the effect of an error in the citation of authority in the indictment. That material remains but without any reference to harmless error.

Committee Notes on Rules—2009 Amendment

The time set in the former rule at 10 days has been revised to 14 days. See the Committee Note to Rule 45(a).

Subdivision (c). The provision regarding forfeiture is obsolete. In 2000 the same language was repeated in subdivision (a) of Rule 32.2, which was intended to consolidate the rules dealing with forfeiture.

Amendment by Public Law

2003—Subd. (c)(1). Pub. L. 108–21 inserted at end "For purposes of an indictment referred to in section 3282 of title 18, United States Code, for which the identity of the defendant is unknown, it shall be sufficient for the indictment to describe the defendant as an individual whose name is unknown, but who has a particular DNA profile, as that term is defined in that section 3282."