Opinion
Criminal No. 11–242 (FAB).
2011-09-19
UNITED STATES of America, Plaintiff, v. Luis CALDERON–RODRIGUEZ, Defendant.
Hector Ramirez–Carbo, United States Attorneys Office, San Juan, PR, for Plaintiff.
MEMORANDUM AND ORDER
BESOSA, District Judge.
On September 16, 2011, the government filed a motion to amend the indictment to correct a scrivener's error contained in the conspiracy charge alleged in Count One. (Docket No. 35 at 1.) On September 17, 2011, the defendant filed an opposition. (Docket No. 37.) The government filed its surreply on September 19, 2011. (Docket No. 44–1.) The Court GRANTS the government's motion to amend the indictment.
The government maintains that the typographical error, which incorrectly states the contract number involved in the conspiracy charge, may be amended without affecting the defendant's rights. (Docket No. 35.) Specifically, the government seeks to change the portion of the indictment describing an overt act in the conspiracy that reads “Municipal Maintenance Contract No. 2007–00740” to read “Municipal Maintenance Contract No. 2007–00745.” Id. Importantly, “the contract date, parties, amounts and construction project designated for the specific contract referred to in the Indictment remain unchanged.” (Docket No. 44–1 at 1.) Additionally, the government maintains, and the defendant does not dispute, that he has received, through the discovery process, a copy of the contract with the correct contract number, and thus, he “should have been able to corroborate that, indeed, the dates, amounts of money involved and parties involved are the same as those in the indictment.” Id.
The defendant alleges that this amendment constitutes a “fundamental change in the burden of proof” of the government to prove that the funds in the contract are federal funds. Notwithstanding the government's pursuant to 18 U.S.C. § 666, the Court finds that the proposed amendment to the indictment in no way affects the substance of the indictment or the crimes for which the defendant has been indicted. The fact is that the defendant had ample “notice of the conspiracy charge against him” because the correct contract at issue was provided to him during discovery, and no material elements regarding the contract have been changed in the indictment. See United States v. Rivera–Ruiz, 244 F.3d 263, 271 (1st Cir.2001) (finding that the government's amendment of the indictment to correct a clerical error did not deprive defendant of notice of the charge against him.) Thus, the government's motion to amend the indictment to reflect the correct contract number in the conspiracy charge is GRANTED.
IT IS SO ORDERED.