¶1Before STEADMAN, SCHWELB, and RUIZ, Associate Judges.
¶2ORDER
¶3In consideration of the opinion by the court in Roberts v. United States, 743 A.2d 212 (D.C.1999) (Roberts I), the appellant’s petition for rehearing or rehearing en banc, the appellee’s opposition to the petition, and the record herein, it is now hereby
¶4ORDERED by the merits division that the petition for rehearing is granted in part and that the opinion in Roberts I is modified as reflected in the division opinion on rehearing issued this date (Roberts II); and the petition for rehearing, in all other respects, is denied. It is
¶5FURTHER ORDERED that the petition for rehearing en banc is denied, without prejudice to the filing of a new petition addressed to the division’s decision on rehearing.
¶6concurring:
¶7I join the majority opinion in concluding that the indictment returned against Roberts was sufficient, and that the evidence presented at trial neither constructively amended the indictment nor impermissibly varied from it. That conclusion is possible in this case because, uneustomarily, we are aided by having a transcript of the grand jury hearing to inform us of what the grand jury in fact heard. With that information, we can confidently conclude that the ambiguous language of the indictment is properly read to include a series of discrete acts within two defined periods of time. In this case, the government permissibly chose to prosecute one of the incidents charged in each of the two time periods defined by the grand jury.
¶8Where I part company with my colleagues is with characterizing challenges to the sufficiency of, or departures from, an indictment as a “technical” matter because it does not go to guilt or innocence or to the fairness of trial. Compare ante at 593, with Robinson v. United States, 697 A.2d 787, 793-94 (D.C.1997) (Ruiz, J., concurring) (“[T]he grand jury is [not] a quaint technicality,” but a “community-based check” on federal law enforcement power). The Constitution provides the right to be charged for serious crimes by indictment. See U.S. Const, amend. V. That requirement was considered to insert a valuable check by peers against the power of the prosecution and of judges. See Russell v. United States, 369 U.S. 749, 770-71, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In exercising the judicial power that the grand jury clause was designed to limit, we must conform fully to the substantial purpose of that constitutional protection.