205

When an Indictment is Required

The Fifth Amendment to the United States Constitution provides that prosecutions "for a capital, or otherwise infamous crime" must be instituted by "a presentment or indictment of a Grand Jury." See Ex Parte Wilson, 114 U.S. 417, 427 (1885); United States v. Wellington, 754 F.2d 1457, 1462 (9th Cir.), cert. denied, 474 U.S. 1032 (1982); United States v. Gonzales, 661 F.2d 488, 492 (5th Cir. 1981). As with a capital crime, whether a crime is "infamous" depends upon its punishment rather than upon the character of the criminal act. The courts have ruled that any crime that may be punished by more than one yearþs imprisonment in a penitentiary or at hard labor is an infamous crime. See Green v. United States, 356 U.S. 165, 183 (1958); Mackin v. United States, 117 U.S. 348, 350-52 (1886); United States v. Russell, 585 F.2d 368, 370 (8th Cir. 1978); Catlette v. United States, 132 F.2d 902 (4th Cir. 1943). Since all Federal felonies are punishable in that fashion they are infamous crimes. See 18 U.S.C. § 4083. Therefore, unless an indictment is waived, its use is required to charge a felony. See this Manual at 209. Although the penalty for a misdemeanor may be imprisonment for one year, a misdemeanor is not an "infamous" crime because the defendant cannot be placed in a penitentiary without his or her consent. See 18 U.S.C. § 4083. Prosecutions for contempt are an exception to the constitutional requirement. Green v. United States, 356 U.S. at 187 (because of its "unique character", a contempt prosecution may be initiated by information even if the defendant is sentenced to imprisonment for more than one year). Rule 7(a) provides that an offense punishable by death must be prosecuted by indictment without exception.