Is a substantive amendment to an indictment sufficient to establish a violation of section 924(c)(1) of the Criminal Code?

Substantive amendment of an indictment is reversible error, because it violates a defendant's fifth amendment right to stand trial only for charges made by a grand jury in its indictment. Id. at 1423. However, to the extent that the language of the indictment goes beyond alleging the necessary elements of the crime, such language is "mere surplusage" which the trial court may "read out" of the indictment if the defendant is not prejudiced. United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855 (1986); United States v. Abascal, 564 F.2d 821, 832-33 (9th Cir.1977), cert. denied, 435 U.S. 953 (1978).

In this case, the language "read out" of the indictment was not central to establishing a violation of section 924(c)(1). We have held that "a jury may convict on a finding of any of the elements of a disjunctively defined offense, despite the grand jury's choice of conjunctive language in the indictment." United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir.1980). In such situations, it is clearly permissible for the court to instruct the jury accordingly. See Abascal, 564 F.2d at 832-33.

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