Superseding Indictments: When the Charges Change.

# What Is a Superseding Indictment? A superseding indictment is an indictment that replaces the earlier indictment as the operative charging document. To secure a superseding indictment, the federal prosecutors involved must present their evidence and charges to the grand jury. If enough evidence supports the new charges, the grand jury will then issue the superseding indictment. ### What Changes in a Superseding Indictment? Superseding indictments may be issued to add or remove charges, defendants, and facts. They also may be used to add or remove statutory theories for the charged crimes. ### Why Doesn’t the Government Just Amend the Indictment? Unlike some civil court procedures, a federal indictment cannot be substantively amended once the grand jury returns it. Under the Fifth Amendment, every felony federal charge must come before the grand jury. It is not permitted to present an initial charge and then simply add details or additional statutory theories that would not have gone through the grand jury’s scrutiny. ### What Precedent Prevents the Government from Amending the Indictment? In the case of Stirone v. United States, the Supreme Court addressed a scenario where the government sought to modify the charges brought by the grand jury. The Court noted that it was not permissible to “amend” the indictment to broaden the scope of the charges. The Court stated that this would avoid “the grand jury’s control.” The Court then held that defendants can’t be convicted on amended charges that did not go through the grand jury process. ### How Many Superseding Indictments Can There Be? There is no federal statutory limit on the number of successive superseding indictments the government can use. ### Wait, Aren’t We Talking About “Amendment”? Yes, a superseding indictment is technically an amendment to the indictment, just like the prosecutors are amending the criminal charges. However, this is not what is colloquially known as an “amendment.” A “superseding” indictment is essentially the government coming back to the grand jury for approval to change the scope of its indictment. ## What Happens Immediately After a Superseding Indictment Is Filed? ### Does a Superseding Indictment Mean the Defendant Has to Be Arrested Again? If you are already a defendant and under the government’s custody or on bond, receiving a superseding indictment does not automatically mean the government will rearrest you. Even if you are free, the government will not seek arrest unless the charges in the superseding indictment justify such a request. ### What Happens at the Arraignment for a Superseding Indictment? Under Federal Rule of Criminal Procedure 10, arraignments must occur in open court. The government must formally present the superseding indictment and read it out loud for the benefit of the defendant and the court. The court will then request the defendant enter a plea on the counts listed in the indictment. ### Can the Government Move for a Detention Hearing After a Superseding Indictment? If the government wants to hold a new detention hearing, the superseding indictment must present information that is new and material. Under 18 U.S.C. Section 3142(f), “The government may, upon new and material information, move the court to reopen a hearing.” Even a new count does not automatically justify reopening a detention hearing. This will likely be the subject of the government’s arguments. ### When Does a Superseding Indictment Become Operative? An ordinary superseding indictment becomes operative once the defendant has been arraigned on it. This means that this superseding indictment replaces the previous indictment. ### Can the Government Proceed on the Original Indictment Instead of the Superseding Indictment? Yes, if no arraignment on a superseding indictment occurs, the government may proceed on a previous indictment. ### Which Indictment Will the Trial Proceed Under? The trial will proceed under the last operative superseding indictment issued. ### Will There Be a New Case Number With a Superseding Indictment? The federal case number assigned to a criminal case usually remains the same when a superseding indictment is issued. This is due to the fact that it is effectively considered an amendment to the original case. ## Do Prior Motions and Deadlines Survive a Superseding Indictment? ### Motion to Strike Surplusage Speaking indictments often go beyond the minimum information needed to state an offense. Instead of simply stating the relevant facts, the indictment tells a narrative that contains both the charges and the supporting evidence for the allegations. If these additional details are intended to confuse the defendant and prejudice the jury, the defendant can move to strike “prejudicial surplusage.” This may result in a trial with an indictment that only contains the essential facts necessary to support the charges. ### Motion for a Bill of Particulars Conversely, if a federal indictment is sparse, the defendant can request a bill of particulars. This is more of an information-gathering request than a legal challenge to the indictment. With a bill of particulars, the government is required to provide more details so that the defendant can better prepare his or her defense. ### Pretrial Challenges to the Indictment - Untimely Charges: The government may not include untimely charges in a superseding indictment. If there is a time-bar, then an untimely charge will support a pretrial challenge to the indictment.

• Failure to Plead Necessary Elements: The government may not be able to present the necessary elements of an offense. If this is the case, the lack of sufficient detail to describe the offense is another strong ground to support a motion to dismiss the indictment. ### Suppression and Discovery Orders A superseding indictment does not automatically vacate the suppression or discovery orders of the district court. However, a superseding indictment does raise the government’s burden to demonstrate compliance. After a superseding indictment, the government must show that any new evidence obtained since the suppression or discovery order is admissible. ### Rule 12 Pretrial-Motion Deadlines The pretrial-motion deadlines under Federal Rule of Criminal Procedure 12 do not automatically restart after a superseding indictment is issued. When the government seeks to bring charges in a superseding indictment, the government can’t restart the defendant’s clock for filing a motion to dismiss.

However, if the allegations in a superseding indictment materially change the case, then renewed motions or extended deadlines are warranted. Of course, what constitutes a material change is often a point of litigation between the government and the defense counsel. ### Rule 12(c) Pretrial-Motion Deadlines With regard to pretrial-motion deadlines, Federal Rule of Criminal Procedure 12(c) gives the district court broad discretion. Specifically, Rule 12(c) reads, “The court may set, and extend, a time limit for motions.” The court is able to set pretrial-motion deadlines and extend them as necessary. ## Do Additional Counts in a Superseding Indictment Always Mean an Increase in the Potential Total Prison Term? While adding charges in a superseding indictment can be seen as a significant change in the proceedings, dropped charges can also signal weakness in the government’s evidence or theory. If an additional charge is dropped, then the chances of that charge going to trial are diminished or non-existent. ### What Does It Mean When a Superseding Indictment Includes Additional Charges? If additional charges are added to a superseding indictment, the reasons for the addition are yet to be determined. Some possible reasons include:

• New evidence has been discovered;
• There is cooperating information;
• The prosecutors have hedges; or,
• Evidence obtained from a co-defendant has provided the government with new evidence to add charges. ### What Should I Do When a Superseding Indictment Is Issued? When your attorney receives a superseding indictment, your attorney should compare the original and superseding indictments paragraph by paragraph. A change in dates, transaction amounts, defendants, and the statutes being charged can have an effect on trial strategy. Your attorney should help you understand the changes.

You should discuss the additional charges with your attorney, and how the additional charges may impact your case. You should also discuss the changes in your trial preparation. ### Are Additional Counts in a Superseding Indictment More Likely to Lead to an Increase in My Federal Sentence? Even though a superseding indictment can result in an increase in the potential total prison term, additional counts do not automatically mean that your sentence will be higher.

Under Federal Sentencing Guidelines §3D1.2, when multiple counts are considered “closely related,” those counts get grouped together to calculate the “offense level.” Similarly, under Federal Sentencing Guidelines §1B1.3, the court can include relevant conduct to determine the defendant’s offense level, regardless of the number of counts brought against the defendant.

But, if an additional mandatory-minimum count is added, then that can impact the length of a federal prison term.

For example, under 18 U.S.C. Section 924(c), any prison sentence imposed under the statute must be served consecutively to any other term of imprisonment imposed on the defendant, including the sentence for the underlying crime of violence or drug trafficking offense. Section 924(c) includes mandatory-minimum sentences of five years for using or carrying a firearm, seven years if the firearm is brandished, 10 years if it is discharged, and 30 years if the firearm is a machinegun or destructive device or is equipped with a silencer. So, an additional charge under Section 924(c) will likely increase the prison term a defendant is facing. ### When the Government Files a Superseding Indictment, Is the original Indictment Still Operative? The answer to this is no. A superseding indictment, like any amendment, replaces the original. Once the defendant is arraigned on the superseding indictment, the superseding indictment becomes the operative charging document. The earlier indictment is effectively revoked. ## Does a Superseding Indictment Restart the Speedy Trial Clock? ### How Long Until Trial Under the Speedy Trial Act? Under the Speedy Trial Act, trials in federal criminal cases must generally commence within 70 days. This 70-day window typically begins on the day of the indictment or the first appearance, whichever is later. For most federal criminal cases, these 70 days will be more than enough for the government to finalize its trial preparations. However, if the government is unable to proceed to trial within this 70-day timeframe, it may request a continuance. ### Does a Superseding Indictment Reset the 70-Day Window? If the government seeks a superseding indictment, it will usually address the time constraints in the court.

While charges that are carried over from the original indictment generally do not trigger the restart of the 70-day speedy-trial window, charges that are new to the superseding indictment might trigger the start of a separate speedy-trial clock.

In the case of United States v. Rojas-Contreras, 474 U.S. 231 (1985), 474 U.S. 231 (1985), the court declined to give an automatic 30-day time reset for additional charges added in a superseding indictment. However, the trial judge acknowledged that the defendant’s attorney could request an extension for preparation time.

The Supreme Court observed that a defendant who needs additional preparation time after a superseding indictment may move for a continuance under 18 U.S.C. Section 3161(h), which the district court has discretion to grant.

If you are facing the charges of a superseding indictment, your attorney should consider how to respond to the changes.

If you are facing additional charges, you will also have to consider additional preparation time. If your attorney asks for and is granted extra time for trial preparation, then the government will not need to stop the speedy trial clock.

Under 18 U.S.C. Section 3161(h)(7), “ends-of-justice continuances,” which are granted on a case-by-case basis, are excluded from the statutory time limits of the Speedy Trial Act. The judges make findings when granting these extensions, and they must put these findings on the record.

It is imperative that your attorney knows how to argue for extensions of time for trial preparations when a superseding indictment is issued.

If you have been charged with an offense that could lead to federal prosecution and are facing the prospect of going through the grand jury process, contact Spodek Law Group Our senior defense attorneys are experienced, and we represent complex federal criminal cases in all states. ## Can Prosecutors Add Time-Barred Charges to a Superseding Indictment? If a federal indictment is filed, and it is later determined that the indictment is defective, prosecutors may pursue a superseding indictment. But if the limitations period has expired before the prosecutors can issue a superseding indictment, the government cannot use a superseding indictment to materially broaden its charges to the detriment of the defendant.

The original indictment tolls the expiration of the statute of limitations, and the original indictment tolls the limitations only for the offense that it charges. When new counts are added in a superseding indictment, the limitations period will not be tolled for these new counts unless they are closely related in nature to the charges in the original indictment. If a charge is new and not timely, then this charge is open to challenge through a motion to dismiss.

On the other hand, if a charge was included in the original indictment, and the prosecutors simply wish to clarify or amend the language in the superseding indictment, this is usually permissible. ### When Can a Grand Jury Return a Superseding Indictment? Under 18 U.S.C. Section 3288, “If an indictment… is dismissed… or if no regular grand jury is in session in the appropriate jurisdiction when the indictment is dismissed, then the government has a six-month period from the date of dismissal of the indictment… to present the information to the grand jury to re-indict.” So, in most cases, the government has a six-month window to seek a superseding indictment from the grand jury after an indictment is dismissed.

Additionally, 18 U.S.C. Section 3289 describes the procedures for a grand jury to act and issues guidance on how federal prosecutors may re-indict after the indictment was dismissed for errors. ### Can Prosecutors Narrow Down the Allegations in an Indictment? Yes, prosecutors can narrow down an indictment, even after the statute of limitations has expired. In the United States v. Miller case, the court held that “a narrowing of an indictment does not change its nature, but it merely brings it to a specific charge and can lead to a more fair trial.” The court acknowledged that “even though the statute of limitation period had expired, but narrowing the charges did not change the indictment’s nature or character, so re-indictment is permissible.” ## Can Prosecutors Use a Superseding Indictment as a Tactic or to Retaliate? Due process prohibits prosecutors from acting out of “vindictiveness.” As a result, prosecutors must base their charging decisions on the relevant facts and circumstances of the case.

With this in mind, the government cannot threaten to file additional charges in order to force a guilty plea, can’t retaliate after a guilty plea is refused, and can’t add charges in an attempt to force a defendant to plead guilty.

However, the Supreme Court limited the scope of the prosecutorial vindictiveness doctrine in Bordenkircher v. Hayes. The Court reasoned that pleading guilty is a “choice that the defendant makes,” and that prosecutors have a duty “to seek just results” while “seeking a plea.” With that said, the prosecutor in the Bordenkircher case “could have and should have” put the defendant in charge of his own plea decision.

So, the government can and does threaten to seek indictments on other charges during plea negotiations.

But, can the government actually seek a superseding indictment on charges that were previously withheld during plea negotiations?

The answer to this question depends on the language of the plea agreement. If the plea agreement contains a provision that limits the government’s ability to bring charges, then the government may be in breach of its obligations.

If the government wants to add charges after a proffer or during a cooperation agreement, the answer to this question depends on the protections in the proffer or cooperation agreement as well. ### Can the Government Add Charges If a Defendant Refuses to Plead Guilty? No, the government cannot add charges in response to a defendant’s refusal to plead guilty. In the case of United States v. Goodwin, the Supreme Court held that, “although prosecutors may threaten to add charges during plea negotiations, they can’t add charges when this is retaliatory for a defendant’s refusal to plead guilty.” The Court rejected the presumption of prosecutorial vindictiveness in the context of ordinary pretrial charge increases and said that, “There is no presumption, however, that an ordinary prosecutorial decision is vindictive,” although “The defendant may still be able to prove actual vindictiveness.”

If a defendant proves actual prosecutorial vindictiveness before trial, then the law will support a motion to dismiss the retaliatory charges.

If prosecutors sought to add charges after a defendant had requested a trial by appealing their sentence, this scenario presented the same issues as in the case of Blackledge v. Perry. The Court acknowledged that “the prosecutorial discretion to add charges should not lead to a result that was an attempt to punish for exercising a right.” The Court then held that, “This time, unlike de-novo trials, the presumption of vindictiveness is triggered.”

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