GEORGE SABAT BROOKS, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5433

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The order and per curiam opinion of the court of appeals (Pet. App.
1a-3a) are not reported.  The judgment and order of the district court
(Pet. App. 1b-3b) are not reported.  The report and recommendation of
the magistrate (Pet. App. 1c-9c) are not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 26, 1990.
 The petition for a writ of certiorari was filed on July 24, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner may collaterally attack a conviction based on a
guilty plea to an information charging rape under a statute that had
been repealed and superseded.

                               STATEMENT

   Following his plea of guilty in the United States District Court
for the Western District of Texas, petitioner was convicted of rape,
in violation of 18 U.S.C. 2031.  The district court sentenced him to a
term of 50 years' imprisonment.  Petitioner did not appeal his
conviction, but subsequently moved for post-conviction relief pursuant
to 28 U.S.C. 2255.  The district court denied the motion.  Pet. App.
1b-3b.  The court of appeals affirmed.  Pet. App. 1a-3a.

   1. On January 12, 1987, a special agent of the Federal Bureau of
Investigation filed a criminal complaint alleging that on or about
January 11, 1987, petitioner abducted Rhonda Jean Glahn and
transported her onto the Fort Hood Military Reservation where he raped
and sodomized her at knife point.  On February 20, 1987, petitioner
pleaded guilty to a one-count information charging him with rape, in
violation of 18 U.S.C. 2031.  /1/ Gov't C.A. Br. 1-2.

   At his guilty plea hearing, "(petitioner) admitted that he and
another 'abducted' the victim 'at knife-point' and that thereafter she
'was ordered to remove her clothing and then forcibly raped and
sodomized by Specialist-4 Simmons and (petitioner),' and that the
victim 'did not consent to acts of sexual intercourse performed upon
her by (petitioner) and Specialist-4 Simmons' and 'she was repeatedly
told she would be killed if she did not cooperate.'" Pet. App. 3a.

   2. On January 28, 1988, petitioner filed a motion under 28 U.S.C.
2255, alleging that the statute that he was convicted of violating had
been repealed prior to his guilty plea and conviction.  On March 24,
1988, the motion was assigned to a United States magistrate, who filed
his report and recommendation on May 3, 1989.  Pet. 2;  Pet. App.
1c-9c;  Gov't C.A. Br. 2.  The magistrate acknowledged that 18 U.S.C.
2031 had been repealed, effective December 10, 1986, and had been
replaced by 18 U.S.C. 2241 (Pet. App. 4c).  The magistrate
nevertheless found (Pet. App. 7c) that "rape" and "carnal knowledge,"
as defined at common law, were "sexual act(s)" under Section 2241, as
defined in Section 2245.  /2/ Therefore, the facts alleged in the
information charged a violation of 18 U.S.C. 2241(a).

   The magistrate further found that the information did not
prejudicially mislead petitioner, even though the sexual acts required
to be proved for a conviction under Section 2241 were defined with
specificity within the statute, rather than, as under the repealed
Section 2031, described in broad and undefined terms -- i.e.,
"carnally knowing a female." As the magistrate explained, the
penetration element of "rape" required to be proved under repealed
Section 2031 is the same as the penetration element of the "sexual
act" as defined in 18 U.S.C. 2245(2)(A) and required to be proved
under Section 2241(a).  Pet. App. 7c-8c.  The magistrate therefore
concluded that the information was not so defective that it deprived
the district court of jurisdiction, and recommended that petitioner's
Section 2255 motion be dismissed.  Pet. App. 8c-9c.  The district
court adopted the magistrate's memorandum opinion and recommendation
in a judgment and order dated June 26, 1989.  Pet. App. 1b-3b.

   3. The court of appeals affirmed.  Pet. App. 1a-3a.  The court
relied primarily on "the reasons stated in the magistrate's thorough
and well-considered report" (id. at 2a), but also took note of
petitioner's admissions at the guilty plea hearing (id. at 3a).

                               ARGUMENT

   1. Petitioner contends (Pet. 3-7) that, because the information to
which he pleaded, which cited a repealed statute, failed to state an
offense, the district court lacked jurisdiction to convict him of
rape.  This contention is without merit.

   We note at the outset that when, as here, an indictment or
information is attacked for the first time in a collateral proceeding
under 28 U.S.C. 2255, a reviewing court will consider the challenge
only in exceptional circumstances, e.g., where the issue is of great
importance, the need for a remedy is apparent, or the sentencing court
plainly lacked jurisdiction over the offense charged.  See United
States v. Pierce, 868 F.2d 1379, 1384 (5th Cir.), cert. denied, 110
S.Ct. 321 (1989);  Merrill v. United States, 599 F.2d 240, 242 (8th
Cir. 1979);  see also United States v. Timmreck, 441 U.S. 780, 783-785
(1979).  Petitioner has made no showing that such exceptional
circumstances are present here.

   A defendant who voluntarily and intelligently pleads guilty to a
criminal offense waives all defects in the charging instrument, unless
the defect would deprive the court of jurisdiction.  See, e.g., United
States v. Lopez, 704 F.2d 1382, 1385 n.3 (5th Cir.), cert. denied, 464
U.S. 935 (1983).  The failure of an indictment or information to
charge an offense is a jurisdictional defect that is not waived when a
defendant enters a guilty plea.  See, e.g., United States v.
Morales-Rosales, 838 F.2d 1359, 1361-1362 (5th Cir. 1988).  However,
Fed. R. Crim. P. 7, which governs indictments and informations,
provides in relevant part (id. at (c)(3)) that:

         Error in the citation (of the provision of law defendant is
      alleged to have violated) or its omission shall not be ground
      for dismissal of the indictment or information or for reversal
      of a conviction if the error or omission did not mislead the
      defendant to the defendant's prejudice.  /3/

   In the present case, the facts alleged in the information were
sufficient to charge an offense against the United States, even though
the statute cited in the information, former 18 U.S.C. 2031, had been
repealed and replaced by 18 U.S.C. 2241 before petitioner committed
his offense and was charged.  It is of no consequence that the
language of the information tracked the language of the repealed
statute, not that of Section 2241.  Statutory language need not be
used in a charging instrument so long as the instrument contains the
essential elements of the offense and gives the defendant the notice
necessary to defend against prosecution of the offense.  See Hamling
v. United States, 418 U.S. 87, 117 (1974).

   Contrary to petitioner's contention, the information, which charged
him with committing "rape by carnally knowing a female," stated the
essential elements of an offense under Section 2241(a) and thus
sufficiently informed him of the act he was alleged to have committed.
 Although the terms "rape" and "carnal knowledge" are neither used nor
defined in Sections 2241 or 2245, both have well-established common
law definitions.  "Rape" is carnal knowledge of a female by force or
threat thereof.  See, e.g., Williams v. United States, 327 U.S. 711,
715 (1946).  Many courts have held "carnal knowledge" to be synonymous
with "sexual intercourse." See, e.g., United States v. Renville, 779
F.2d 430, 434 (8th Cir. 1985), interpreting Williams v. United States,
327 U.S. at 717;  see also 75 C.J.S. Rape Section 10.a (1952 and 1990
Supp.) ("Carnal knowledge means sexual intercourse.").

   Even though the information did not contain the statutory language
of Sections 2241 ("knowingly causes another person to engage in a
sexual act") and 2245 ("contact between the penis and the vulva" with
contact occurring "upon penetration, however slight"), the language it
did contain -- "rape" and "carnal knowledge" -- clearly fell within
the meaning of "sexual act" as used in Section 2241 and defined in
Section 2245.  The information therefore properly charged an offense
under Section 2241.  Accordingly, the courts below correctly held that
the error in the information did not deprive the district court of
jurisdiction to convict petitioner.

   2. Petitioner further contends (Pet. 7-8) that the information to
which he pleaded misled him to his prejudice.  He alleges that the
government must prove more specific conduct under 18 U.S.C. 2241(a)
than under the former Section 2031, and that, as a result of being
charged under the latter statute, he was unaware of the more numerous
defenses available to him.  This contention is also without merit.

   The term "sexual act" as used in Section 2241 includes "contact
between the penis and the vulva." Contact involving the penis "occurs
upon penetration, however slight." 18 U.S.C. 2245(2)(A).  Under former
Section 2031, however, "(t)here can be no dispute that by definition
it is fundamental that penetration by the male organ is necessary to
constitute the crime of rape or carnal knowledge." Holmes v. United
States, 171 F.2d 1022, 1023 (D.C. Cir. 1948);  see United States ex
rel. Bonner v. De Robertis, 798 F.2d 1062, 1067 n.7 (7th Cir. 1986);
United States v. Red Cloud, 791 F.2d 115, 117 (8th Cir. 1986);  75
C.J.S. Rape Section 10.b (1952 and 1990 Supp.).  And slight
penetration is all that is required to establish the carnal knowledge
element of rape.  Ibid.  Because the elements required to be proved by
the government under both former Section 2031 and the present Section
2241(a) were the same, e.g., "penetration, however slight" (18 U.S.C.
2245(2)(A)), petitioner could not have been misled to his prejudice
because the information charged an offense under former Section 2031
rather than the present Section 2241(a).  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   THOMAS M. GANNON

      Attorney

   NOVEMBER 1990

   /1/ The information charged as follows (C.A.R.E. 8):

      On or about January 10 and January 11, 1987, within the special
      maritime and territorial jurisdiction of the United States at
      West Fort Hood, Texas, within the Western District of Texas, the
      defendant, GEORGE SABAT BROOKS did unlawfully, willfully, and
      knowingly commit rape by carnally knowing a female, Ms. Rhonda
      J. Glahn, by force and without her consent in violation of Title
      18, United States Code, Section 2031.

   /2/ In relevant part, 18 U.S.C. 2241, the aggravated sexual abuse
statute, provides:

         (a) By force or threat. -- Whoever, in the special maritime
      and territorial jurisdiction of the United States or in a
      Federal prison, knowingly causes another person to engage in a
      sexual act --

         (1) by using force against that other person;  or

         (2) by threatening or placing that other person in fear that
      any person will be subjected to death, serious bodily injury, or
      kidnaping;

         or attempts to do so, shall be fined under this title,
      imprisoned for any term of years or life, or both.

   A companion definitional statute, 18 U.S.C. 2245, describes the
genital, anal, or oral contacts that constitute "sexual acts" within
the meaning of Section 2241.  In particular, "contact between the
penis and the vulva (constituting a "sexual act") * * * occurs upon
penetration, however slight." 18 U.S.C. 2245(2)(A).

   /3/ This subsection of Rule 7 codifies the principle announced in
Williams v. United States, 168 U.S. 382, 389 (1897):

      We must look to the indictment itself, and if it properly
      charges an offence under the laws of the United States, that is
      sufficient to sustain it, although the representative of the
      United States may have supposed that the offence charged was
      covered by a different statute.

   /4/ Moreover, as the court of appeals observed (Pet. App. 3a),
petitioner admitted at his guilty plea proceeding that he abducted his
victim at knife-point, that he forcibly raped and sodomized her, and
that she was threatened with death if she did not cooperate with her
assailants.  In effect, petitioner expressly admitted to the elements
of an offense under Section 2241 -- "knowingly caus(ing) another
person to engage in a sexual act * * * by threatening or placing that
other person in fear that any person will be subjected to death." See
18 U.S.C. 2241(a).  In these circumstances -- where petitioner
demonstrated his awareness of the specific conduct that formed the
basis of the charge -- petitioner can make no credible showing that he
was misled to his prejudice.