The Ninth Circuit granted habeas relief on the ground Smith didn’t have sufficient notice he could be convicted either as a principal or as an aider-and-abettor, though it pointed to no Supreme Court case holding as much. Instead, it cited three cases that stand for the general proposition that a defendant must have adequate notice of the charges against him, viz., Russell v. United States, 369 U.S. 749, 763–64 (1962), In re Oliver, 333 U.S. 257, 273–74 (1948), and Cole v. Arkansas, 333 U.S. 196, 201 (1948). Not good enough, says the Court:This proposition is far too abstract to establish clearly the specific rule respondent needs.
As observed by the [*35] Supreme Court:If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed.Ex parte Bain, 121 U.S. 1, 10, 30 L. Ed. 849, 7 S. Ct. 781 (1887), quoted in Stirone, 361 U.S. at 217. See also Cotton, 535 U.S. at 631, 634 (citing Bain, 121 U.S. 1, 30 L. Ed. 849, 7 S. Ct. 781, Stirone, 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270, and Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962), for the "settled proposition of law" that "an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form," and approving the general proposition that "the Fifth Amendment grand jury right serves a vital function in providing [*36] for a body of citizens that acts as a check on prosecutorial power"); United States v. Miller, 471 U.S. 130, 142-43, 85 L. Ed. 2d 99, 105 S. Ct. 1811 & n.7, 471 U.S. 130, 85 L. Ed. 2d 99, 105 S. Ct. 1811 (1985) (noting the Court's consistent reaffirmation of Bain as standing for recognition of the important constitutional safeguard represented by the grand jury). See also United States v. Harris, 536 U.S. 545, 564, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (Kennedy, J., concurring) ("The grand and petit juries thus form a 'strong and two-fold barrier . . . between the liberties of the people and the prerogative of the [government].'
Thus, this Court some time ago departed from Bains view that indictment defects are jurisdictional. Stirone v. United States, 361 U.S. 212; Russell v. United States, 369 U.S. 749, distinguished. Insofar as it held that a defective indictment deprives a court of jurisdiction, Bain is overruled.