Number range CHAPTER© 2005 Thomson/West. No Claim to Orig. U.S. Govt.
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605 F.2d 462

605 F.2d 462

**(Cite as: 605 F.2d 462)**

\<KeyCite Citations\>

United States Court of Appeals,

Ninth Circuit.

**UNITED STATES of America, Appellee,**

**v.**

**Robert KEITH, Appellant.**

**No. 79-1075.**

Sept. 26, 1979.

Defendant was convicted in the United States District Court for the
District of Arizona, C. A. Muecke, J., of involuntary manslaughter, and
he appealed. The Court of Appeals, Hug, Circuit Judge, held that
although indictment charging defendant with involuntary manslaughter
tracked language of statute in charging that defendant operated his
automobile \"without due caution and circumspection\" resulting in
death, indictment was insufficient and conviction could not be based on
such indictment where it failed to allege that defendant committed with
gross negligence the action causing death and that defendant had actual
knowledge that his conduct was a threat to lives of others or had
knowledge of such circumstances as would have made reasonably
foreseeable to him the peril to which his acts might subject others.

Reversed.

Merrill, Circuit Judge, dissented and filed opinion.

West Headnotes

**\[1\] Homicide k662**

203k662

(Formerly 203k34)

That defendant committed with gross negligence the action causing death
and that defendant had actual knowledge that his conduct was a threat to
lives of others or had knowledge of such circumstances as would have
made reasonably foreseeable to him the peril to which his acts might
subject others are essential elements for a conviction of involuntary
manslaughter under federal statute. 18 U.S.C.A. § 1112.

**\[2\] Indictment and Information k60**

210k60

Failure of indictment to detail each element of charged offense
generally constitutes a fatal defect.

**\[3\] Indictment and Information k60**

210k60

**\[3\] Indictment and Information k159(2)**

210k159(2)

Failure of indictment to charge two essential elements of crime charged
cannot be cured by trial court by amendment or through jury
instructions; to allow prosecutor or court to make a subsequent guess as
to what was in minds of grand jury at time they returned indictment
would deprive defendant of basic protection that grand jury was designed
to secure, because defendant could then be convicted on basis of facts
not found by, and perhaps not even presented to, grand jury that
indicted him.

**\[4\] Indictment and Information k110(4)**

210k110(4)

Although indictment charging defendant with involuntary manslaughter
tracked language of statute in charging that defendant operated his
automobile \"without due caution and circumspection\" resulting in
death, indictment was insufficient and conviction could not be based on
such indictment where it failed to allege that defendant committed with
gross negligence the action causing death and that defendant had actual
knowledge that his conduct was a threat to lives of others or had
knowledge of such circumstances as would have made reasonably
foreseeable to him the peril to which his acts might subject others. 18
U.S.C.A. § 1112.

**\[5\] Indictment and Information k171**

210k171

A defendant cannot be convicted on basis of facts not found by, or
perhaps not even presented to, grand jury.

**\[6\] Indictment and Information k110(4)**

210k110(4)

Although an indictment tracking language of statute is usually adequate
because statutes usually include all elements of crime, an indictment is
inadequate when it fails to allege an essential element of offense even
when it tracks language of statute.

**\[7\] Indictment and Information k121.5**

210k121.5

A bill of particulars cannot save an invalid indictment.

**\*463** Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., for
appellee.

Michael L. Piccarreta, Asst. Federal Public Defender, Phoenix, Ariz.,
for appellant.

Appeal from the United States District Court for the District of
Arizona.

Before MERRILL and HUG, Circuit Judges, and PORT \[FN\*\], Senior
District Judge.

FN\* The Honorable Edmund Port, Senior United States District Court
Judge for the Northern District of New York, sitting by designation.

HUG, Circuit Judge:

Appellant Robert Keith, a Navajo Indian, was indicted on the charge of
involuntary manslaughter within the confines of the Navajo Indian
Reservation, in violation of 18 U.S.C. ss 1153 and 1112. Before trial,
Keith moved to dismiss the indictment for failure to allege two
essential elements of the offense charged. After oral argument, the
trial judge denied the motion. Keith was convicted after a jury trial.

Keith argues that his conviction should be reversed on the ground that
the district court erred in denying the motion. We agree with his
argument and reverse.

Keith was charged under s 1112 with involuntary manslaughter after the
automobile he was driving collided with another vehicle, killing the
driver. Section 1112 provides in pertinent part:

\(a\) Manslaughter is the unlawful killing of a human being without
malice. It is of two kinds:

Voluntary Upon a sudden quarrel or heat of passion.

Involuntary In the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due
caution and circumspection, of a lawful act which might produce death.

The indictment tracked the language of s 1112 in charging that Keith
operated his vehicle \"without due caution and circumspection.\" \[FN1\]

FN1. The indictment was worded as follows:

On or about June 15, 1978, in the District of Arizona, and within the
confines of the Navajo Indian Reservation, Indian country, ROBERT KEITH,
an Indian, did unlawfully kill Harold Leroy Taggart, a non-Indian, in
the commission of a lawful act which might produce death, that is, the
operation of an automobile by the said ROBERT KEITH, without due caution
and circumspection.

In violation of Title 18, United States Code, Sections 1153 and 1112.

Keith contends that two essential elements of the offense of involuntary
manslaughter under s 1112 are that: (1) the defendant committed with
gross negligence the action causing death; and (2) the defendant had
actual knowledge that his conduct was a threat to the lives of others,
or had knowledge of such circumstances as would have made reasonably
foreseeable to him the peril to which his acts might subject others. He
argues that the indictment failed to allege these two elements because
the indictment alleged only that he operated his automobile \"without
due caution and circumspection.\" He reasons that the phrase \"without
due caution and circumspection\" connotes simple negligence sufficient
for civil liability, but not gross negligence.

\[1\] Keith is correct in his contention that the two elements he cites
are essential for an involuntary manslaughter conviction under s 1112.
In United States v. Pardee, 368 F.2d 368, 374 (4th Cir. 1966), the court
held that jury instructions concerning an alleged s 1112 offense were
insufficient because they failed to advise that the Government must
prove: (1) that the defendant acted with \"gross negligence,\" defined
as \"wanton or reckless disregard for human life;\" and (2) that the
defendant had actual knowledge that his conduct was a threat to the
lives of others, or had knowledge of such circumstances as could
reasonably be said to have made foreseeable to him the peril to which
his acts might subject others. United States v. Escamilla, 467 F.2d 341,
347 (4th Cir. 1972). Cf. Barbeau v. United States, 13 **\*464** Alaska
551, 193 F.2d 945, 949 (9th Cir.) Cert. denied, 343 U.S. 968, 72 S.Ct.
1064, 96 L.Ed. 1364 (1952) (a state statute containing language almost
identical to s 1112 construed to require gross negligence).\[FN2\] The
indictment under which Keith was charged did not contain all the
elements of the offense charged.

FN2. For a discussion of the history of s 1112 and its relationship to
common law homicide, see United States v. Alexander, 152 U.S.App.D.C.
371, 392-93, 471 F.2d 923, 944-45 (D.C.Cir.), Cert. denied, 409 U.S.
1044, 93 S.Ct. 541, 34 L.Ed.2d 494 (1972). Dicta in Alexander, id. 152
U.S.App.D.C. at 395 n.56, 471 F.2d at 947 n.56 and in United States v.
Dixon, 135 U.S.App.D.C. 401, 405 n.4, 419 F.2d 288, 292 n.4 (D.C.Cir.
1969) (Leventhal, J., concurring) affirm the Pardee court\'s analysis of
gross negligence under s 1112.

\[2\] The failure of an indictment to detail each element of the charged
offense generally constitutes a fatal defect. United States v. King, 587
F.2d 956, 963 (9th Cir. 1978). United States v. Morrison, 536 F.2d 286,
288 (9th Cir. 1976).

\[3\] The failure of the indictment to charge two essential elements
could not be cured by the trial court by amendment or through jury
instructions. The Supreme Court has stated: \"The very purpose of the
requirement that a man be indicted by grand jury is to limit his
jeopardy to offenses charged by a group of his fellow citizens acting
independently of either prosecuting attorney or judge.\" Russell v.
United States, 369 U.S. 749, 771, 82 S.Ct. 1038, 1051, 8 L.Ed.2d 240
(1962) (citing Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct.
270, 4 L.Ed.2d 252 (1960). To allow a prosecutor or court to make a
subsequent guess as to what was in the minds of the grand jury at the
time they returned the indictment would deprive the defendant of a basic
protection that the grand jury was designed to secure, because a
defendant could then be convicted on the basis of facts not found by,
and perhaps not even presented to, the grand jury that indicted him.
Russell, 369 U.S. at 770, 82 S.Ct. 1038; Jeffers v. United States, 392
F.2d 749, 752-53 (9th Cir. 1968).

\[4\]\[5\] The indictment did not charge two essential elements. The
grand jury may well have believed that s 1112 requires proof of these
elements. Keith cannot be convicted on the basis of facts not found by,
and perhaps not even presented to, the grand jury. Russell, 369 U.S. at
770, 82 S.Ct. 1038; Jeffers, 392 F.2d at 752-53.

The Government raises a number of objections to Keith\'s argument, but
none of them is convincing.

\[6\] The Government contends that the indictment is sufficient because
it tracks the language of s 1112. The Government\'s contention is
incorrect. Although an indictment tracking the language of a statute is
usually adequate because statutes usually include all the elements of a
crime, an indictment is inadequate when it fails to allege an essential
element of the offense even when it tracks the language of the statute.
United States v. Morrison, 536 F.2d at 288; United States v. Haldeman,
181 U.S.App.D.C. 254, 346 n.260, 559 F.2d 31, 123, n.260 (D.C.Cir.
1976), Cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977)
(citing United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135 (1882)).

\[7\] The Government appears to argue that Keith was not prejudiced by
the language of the indictment because he did not request a bill of
particulars. This argument is meritless. A bill of particulars cannot
save an invalid indictment. Russell v. United States, 369 U.S. at 770,
82 S.Ct. 1038.

The Government notes that vagueness may not be imputed to a statute if
judicial explication makes a statute clear so that fair notice is
afforded. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.
1979). The Government argues that s 1112 and the indictment that tracked
the language of s 1112 are not vague because numerous decisions have
construed the phrase \"without due caution and circumspection\" to mean
gross negligence.

Broncheau is distinguishable. In Broncheau, the court noted that the
term \"Indian,\" which the appellant attacked as vague, **\*465** as
judicially developed from 1845 to the present, \"has a meaning
sufficiently precise for a man of average intelligence to \'reasonably
understand that his contemplated conduct is proscribed.\' \" Id. at 1263
(citing United States v. Mazurie, 419 U.S. 544, 553, 95 S.Ct. 710, 42
L.Ed.2d 706 (1975)). The phrase \"without due caution and
circumspection,\" however, has not been consistently defined by judicial
decision to include the knowledge requirement of s 1112. Moreover, in
Broncheau, the appellant admitted that he was an enrolled Indian and
never suggested that he did not understand the term \"Indian\" as it
applied to him. Here, in contrast, Keith made a timely motion to dismiss
the indictment for the reason he argues on appeal.

Keith\'s conviction for involuntary manslaughter is reversed.

MERRILL, Circuit Judge, dissenting:

I dissent.

The majority holds that the statutory language \"without due caution or
circumspection\" must be construed to require gross negligence or the
knowledge of such circumstances as would have made reasonably
foreseeable to the defendant the peril to which his acts might subject
others. Whether this is or is not the proper standard to apply in
involuntary manslaughter is a question I do not reach. I assume,
arguendo, that it is. It was the one adopted by the district court in
instructing the jury as to the meaning of the statutory language.

I disagree with the majority in its conclusion that the imposition of
this standard amounts to adding a new element to the crime of
involuntary manslaughter, which element must be expressly stated in the
indictment.

A distinction must be made between two different situations: (1) Where
judicial or decisional gloss adds new elements to a crime; \[FN1\] (2)
Where the gloss does no more than define the meaning of an element set
forth in the statute. In the former case the newly added elements must
be included in an indictment. In the latter case no new element has been
added. The element set forth in the statute which has been judicially
defined takes on the meaning given to it by the judicial definition. In
this sense the statutory language has become a term of art. When it is
used in an indictment it carries with it the judicial definition. This
is the case here. Gross negligence and foreseeability of harm are not
required In addition to a lack of due caution and circumspection. They
Constitute that lack. Absent gross negligence and foreseeability of harm
there is no such lack, and the Statutory element has not been
established.

FN1. An example, perhaps, could be United States v. Pardee, 368 F.2d 368
(4th Cir. 1966), cited in the majority opinion. There it was held that
where an involuntary manslaughter charge was alleged to be based on an
unlawful act not amounting to a felony (the first branch of the crime;
we are here concerned with the second), that act must not only be
unlawful; it must also amount to gross negligence.

In such a case the jury must, of course, be instructed as to the meaning
of the language used in the statute just as it must be instructed as to
the meaning of any element as statutorily expressed. Here the trial jury
was so instructed. Since the necessary elements for involuntary
manslaughter were detailed in the indictment, we should also assume that
the grand jury received appropriate instructions as to the meaning of
language used in the indictment, and that when it found a lack of due
caution and circumspection the jurors understood what that language
meant.

To require that an indictment not only contain the elements of a crime
but also precisely set forth the definition judicially given to the
statutory language could start an interminable definitional process and
render every indictment subject, after the fact, to objections now
required to be made before the fact as to jury instructions. Here, it
could be argued that gross negligence would in turn have to be defined.
If \"wanton disregard\" is used in defining it, it could be argued that
the term also would have to be defined.

I would affirm.

605 F.2d 462

END OF DOCUMENT