FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, Nos. 05-50124

05-50292 v.  D.C. No. LATASHA LORRAINE ARNT, a/k/a

CR-03-00523-PA Latasha Lorraine Simpson and

Latasha L. Cummings, OPINION

Defendant-Appellant. 

Appeals from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

November 13, 2006—Pasadena, California

Filed January 25, 2007

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and

Susan P. Graber, Circuit Judges.

Opinion by Judge B. Fletcher

1025
COUNSEL

Jonathan D. Libby, Deputy Federal Public Defender, Los

Angeles, California, for the defendant-appellant. 

Jerry A. Behnke, Assistant United States Attorney, Riverside,

California, for the plaintiff-appellee. 

OPINION

B. FLETCHER, Circuit Judge: 

A jury convicted LaTasha Lorraine Arnt of committing voluntary manslaughter while accompanying the Armed Forces

of the United States in Turkey, in violation of 18 U.S.C.

§§ 1112(a), 3261(a). The court sentenced her to eight years in

prison and ordered her to pay restitution to the victim’s family. 

On appeal, Arnt raises several challenges to her conviction

and sentence. She asserts that the indictment failed to allege

an essential element and challenges several aspects of her

conviction, including the sufficiency of the evidence and the

1028 UNITED STATES v. ARNT
court’s refusal to give an involuntary manslaughter instruction. Finally, she argues that her sentence is unreasonable and

contends that the restitution order is illegal because it defines

“victim” too broadly. 

We reject her challenge to the indictment, which was sufficient to identify the jurisdictional basis of the prosecution.

Similarly, we reject her challenge to the sufficiency of the

evidence, which provided an adequate basis to establish,

beyond a reasonable doubt, that Arnt was accompanying the

Armed Forces outside the United States at the time of her

offense. We agree with Arnt, however, that the district court

committed reversible error in refusing to give an involuntary

manslaughter instruction.1

BACKGROUND

LaTasha Arnt fatally stabbed her husband, Staff Sergeant

Matthias Anthony Arnt, III, during a domestic dispute on

Incirlik Air Base, Turkey, where SSgt. Arnt served as a member of the security forces unit. The government charged Arnt

with murder, asserting jurisdiction under the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), 18 U.S.C.

§§ 3261-3267. After a jury deadlocked over whether to convict, the court declared a mistrial. She was re-tried; a second

jury acquitted her of murder but convicted her of the lesserincluded offense of voluntary manslaughter. 

Arnt filed a timely notice of appeal. We have jurisdiction

under 28 U.S.C. § 1291. 

1Because we reverse the conviction on the jury instruction issue, we do

not reach Arnt’s other challenges to her conviction, not mentioned herein,

nor do we address her challenges to her sentence or the restitution order.

UNITED STATES v. ARNT 1029
DISCUSSION

Sufficiency of the Indictment

[1] Congress enacted MEJA in response to a jurisdictional

gap created by host nations’ reluctance to prosecute crimes

against Americans committed by civilians accompanying the

Armed Forces outside the United States. H.R. Rep. No. 106-

778(I) (2000), 2000 WL 1008725, at *5. To close this gap,

MEJA creates federal jurisdiction over those who commit felonies while “accompanying the Armed Forces outside the

United States.” 18 U.S.C. § 3261(a)(1).2 A person is “accompanying the Armed Forces outside the United States,” if she

satisfies three requirements: she must be “(A) [a] dependent

of . . . a member of the Armed Forces; (B) residing with such

member . . . outside the United States; and (C) not a national

of or ordinarily resident in the host nation.” 18 U.S.C.

§ 3267(2).3

2Section 3261(a)(1) reads, in pertinent part: 

Whoever engages in conduct outside the United States that

would constitute an offense punishable by imprisonment for more

than 1 year if the conduct had been engaged in within the special

maritime and territorial jurisdiction of the United States . . . while

. . . accompanying the Armed Forces outside the United States

. . . shall be punished as provided for that offense. 

3Section 3267(2) reads in full: 

As used in this chapter: 

. . . . 

(2) The term “accompanying the Armed Forces outside the

United States” means— 

(A) A dependent of—- 

(i) a member of the Armed Forces; 

(ii) a civilian employee of the Department of Defense

(including a nonappropriated fund instrumentality of the

Department); or 

(iii) a Department of Defense contractor (including a

subcontractor at any tier) or an employee of a Department

of Defense contractor (including a subcontractor at any

tier); 

(B) residing with such member, civilian employee, contractor, or contractor employee outside the United States; and

(C) not a national of or ordinarily resident in the host

nation. 

1030 UNITED STATES v. ARNT
Arnt challenges the indictment’s failure to allege that she

resided with SSgt. Arnt. She contends that § 3267(2)(B)’s residency requirement is an essential element both to confer federal jurisdiction under MEJA and to fulfill the indictment’s

purpose of giving her notice of the elements of the crime with

which she was charged. 

Because Arnt first challenged her indictment after trial, we

review the indictment for plain error, see United States v.

Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002), “liberally

constru[ing] the indictment in favor of validity.” United States

v. Chesney, 10 F.3d 641, 643 (9th Cir. 1993). The key question as to the sufficiency of an indictment “is whether an error

or omission in an indictment worked to the prejudice of the

accused. . . . Absent such prejudice, the conviction may not

be reversed for any omission in the indictment.” VelascoMedina, 305 F.3d at 847 (internal quotation marks omitted).

[2] Reviewing for plain error, we find this indictment adequate. A defendant is not prejudiced where her counsel has

notice of the omitted element and the jury is properly

instructed regarding the missing element. Id. Arnt’s counsel

had notice of the residency requirement from the statute itself,

specifically cited in the indictment and, at least two months

before trial, from the first trial’s jury instructions and the government’s trial memorandum, both of which inform as to the

§ 3267 residency requirement. The jury in the second trial

was properly instructed on the residency requirement, both at

the beginning of trial and in the jury instructions. With notice

of the omitted element and proper jury instructions, Arnt suffered no prejudice from the indictment’s failure to allege residence. 

[3] Arnt challenges the indictment on the alternative

grounds that its failure to assert residence stripped the district

court of jurisdiction to hear the case. This is essentially a

restatement of her sufficiency argument couched in jurisdictional language. In general, “defects in an indictment do not

UNITED STATES v. ARNT 1031
deprive a court of its power to adjudicate a case.” United

States v. Cotton, 535 U.S. 625, 630 (2002). Although an

indictment challenged before trial may be held insufficient for

failure to assert an essential jurisdictional element, see United

States v. Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006), for the

reasons stated above, this tardily challenged indictment was

adequate. 

Sufficiency of the Evidence

Arnt argues that the evidence presented at trial was insufficient to establish, beyond a reasonable doubt, her residence in

Turkey as required by § 3267(2)(B) to establish jurisdiction

pursuant to MEJA. We review the sufficiency of evidence in

a criminal trial de novo, asking whether, after “viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” United States v.

Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004) (internal quotation marks omitted). 

Keeping this standard in mind, we turn to the evidence of

residency in the record. The parties stipulated, and read into

the record, several facts bearing on residence: that Arnt’s

“permanent home of record” was in Riverside, California; that

SSgt. and Mrs. Arnt transferred to Incirlik Air Base August 1,

2001; that Arnt resided with her grandmother in Riverside,

California, from early March 2003 to May 23, 2003; and that

Arnt and her infant daughter returned to Incirlik Air Base,

Turkey on May 24, 2003. Arnt testified that she left for the

United States in December 2002 due to an imminent civilian

evacuation of Incirlik and that she returned to Turkey once the

evacuation was lifted. Several witnesses referred to the residence on the base as “the Arnts’ house.” Arnt herself referred

to it as “our house.” Arnt acted as though the house at the

base were her own, cleaning it upon her arrival from the

United States and storing important papers there. 

1032 UNITED STATES v. ARNT
[4] On the basis of these facts, a rational jury could conclude beyond a reasonable doubt that Mrs. Arnt resided with

SSgt. Arnt at Incirlik and, thus, the evidence was sufficient to

support the verdict.

Involuntary Manslaughter Instruction

The district court instructed the jury on murder and voluntary manslaughter but refused to instruct on the lesserincluded offense of involuntary manslaughter. Arnt asserts

that this constituted reversible error because the jury was

thereby precluded from convicting her of involuntary manslaughter, even if the jurors believed the evidence supporting

her theory of accidental death. 

[5] A defendant is entitled to an instruction on a lesserincluded offense if the law and evidence satisfy a two-part

test: 1) “the elements of the lesser offense are a subset of the

elements of the charged offense,” Schmuck v. United States,

489 U.S. 705, 716 (1989); and 2) “the evidence would permit

a jury rationally to find [the defendant] guilty of the lesser

offense and acquit [her] of the greater,” Keeble v. United

States, 412 U.S. 205, 208 (1973). We review the first step de

novo and the second step for abuse of discretion. United

States v. Naghani, 361 F.3d 1255, 1262 (9th Cir. 2004). 

[6] There is an apparent split in Ninth Circuit authority

regarding the standard of review for instructions on lesserincluded offenses. Compare id. with United States v. Pierre,

254 F.3d 872, 875 (9th Cir. 2001) (reviewing de novo). We

write to make clear that there is no actual split. The first step

in determining whether a lesser-included offense instruction

should be given asks us to consider a legal question: Is the

offense for which the instruction is sought a lesser-included

offense of the charged offense? See Schmuck, 489 U.S. at 716.

Therefore, the first step is subject to de novo review. The second step is a factual inquiry: Does the record contain evidence

that would support conviction of the lesser offense? See KeeUNITED STATES v. ARNT 1033
ble, 412 U.S. at 208. The trial judge obviously is better situated than we are to make this factual determination; therefore,

we review the second step for abuse of discretion. See United

States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987). 

Our statement in Pierre that de novo review applies to a

district court’s refusal to give a lesser-included offense

instruction is not to the contrary. See Pierre, 254 F.3d at 875.

In Pierre, we engaged in only the first step of the lesserincluded offense inquiry, i.e., determining whether assault by

striking, beating, or wounding is a lesser-included offense of

the charged crime of assault with a dangerous weapon. As

that is a legal question, de novo review was properly applied.

[7] With the standard of review established, we turn to the

first step of the lesser-included offense instruction inquiry. It

is well established that involuntary manslaughter is a lesserincluded offense of murder. See United States v. Anderson,

201 F.3d 1145, 1148 (9th Cir. 2000) (“Voluntary and involuntary manslaughter are lesser included offenses of murder.”);

United States v. Skinner, 667 F.2d 1306, 1309 n.1 (9th Cir.

1982) (per curiam) (“[I]nvoluntary manslaughter is a lesserincluded offense of murder and voluntary manslaughter.”).

The government does not argue otherwise. 

[8] It is the second step that is at issue here: Is there evidence of accident that could provide the predicate for an

involuntary manslaughter instruction? To acquit of the greater

offenses and to convict of the lesser, in this case, would

require the jury to find that Arnt killed her husband unintentionally. See United States v. Paul, 37 F.3d 496, 499 (9th Cir.

1994) (“If the defendant killed with the mental state required

for murder (intent to kill or recklessness with extreme disregard for human life), but the killing occurred in the ‘heat of

passion’ caused by adequate provocation, then the defendant

is guilty of voluntary manslaughter. . . . By contrast, the

absence of malice in involuntary manslaughter arises not

because of provocation induced passion, but rather because

1034 UNITED STATES v. ARNT
the offender’s mental state is not sufficiently culpable to meet

the traditional malice requirements.”) (internal citations and

quotation marks omitted). The evidence in support of unintentional death comes mainly from Arnt’s testimony and that of

the defense forensic pathologist. 

First we consider Arnt’s testimony. She testified that she

and SSgt. Arnt fought on the night of his death over whether

she would leave him because of his womanizing and drinking;

that the fight became physical; that, after wrenching free from

her husband’s choke-hold, she ran to the kitchen, grabbed a

knife, and told her husband to leave the house; that SSgt. Arnt

responded by telling her to say her prayers as he crouched as

if to punch her; and that the next thing she remembered was

pulling the knife from his chest. She testified that she was not

aiming the knife anywhere, that she “didn’t want to fight him;

I just wanted him to leave,” and, in response to crossexamination, said she “didn’t want to kill him.” Arnt also testified of her attempt to save her husband’s life by calling the

base law enforcement office to demand an ambulance, and

telling him, “[j]ust to stay with me, not to move” while waiting for the ambulance to arrive. 

The record contained evidence of the extreme stress under

which these two were operating. Mrs. Arnt testified that, two

days before the stabbing, she had traveled from the United

States, a 24-hour journey, with a baby and with little sleep.

Moreover, she had not had much sleep after her arrival in Turkey. A number of witnesses testified that SSgt. Arnt became

extremely drunk at a party on the night of his death. His

supervising officer testified that SSgt. Arnt was slurring his

speech and spilling drinks; his hosts testified that they called

a cab to take him home because he was too drunk to remain

at the party. According to the prosecution’s toxicologist, SSgt.

Arnt’s blood alcohol level at the time of his death was 0.26,

more than three times the legal limit for driving in most states.

In short, it is eminently understandable that, given their condiUNITED STATES v. ARNT 1035
tion, the Arnts would have had an irrational fight that may

have included poor physical control and slow reaction times.

Arnt’s testimony is supported by that of the defense pathologist, Dr. Herrmann, who testified that the wound could have

come largely from the victim’s movements, rather than from

the defendant’s. According to Dr. Herrmann, the trajectory

and depth of the wound was consistent with SSgt. Arnt bending deeply forward at his waist and falling into the knife as

he attempted to punch Mrs. Arnt. 

[9] Admittedly, the evidence supporting unintentional death

is inconsistent with other evidence.4 However, if there is some

evidence to support the jury instruction, it is the jury’s province to determine which evidence it believed most accurately

reflected the events surrounding the stabbing. See United

States v. Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 1989)

(“The weight and credibility of the conflicting testimony are

issues properly resolved by the jury.”). Setting aside the contrary evidence, we are left with Mrs. Arnt’s testimony that she

did not intend to kill her husband, her lack of aim of the knife,

the defense pathologist’s hypothesis that the wound could

have come from SSgt. Arnt’s falling on the knife, SSgt.

Arnt’s drunkenness, and Mrs. Arnt’s fatigue. A jury rationally

could have found from this evidence that Mrs. Arnt lacked the

intent to kill SSgt. Arnt and that his death was the tragic, and

accidental, result of SSgt. Arnt’s falling onto the knife as Mrs.

Arnt waved it menacingly in an effort to make him leave her

alone. 

4Dr. Herrmann’s testimony was contradicted by the prosecution forensic

pathologist, who testified that the angle of the blow was most consistent

with an overhead, downward thrust. Although Mrs. Arnt testified that she

did not intend to kill her husband, she never explicitly claimed that the

stabbing was accidental, only testifying that she could not remember the

exact moment when she stabbed SSgt. Arnt and, alternatively, that she

acted in self-defense. 

1036 UNITED STATES v. ARNT
[10] The integrity of the jury’s fact-finding role undergirds

our requirement that a lesser-included offense instruction be

given when supported by law and the evidence. In this case,

a couple fought and a young serviceman died. The jury might

have been unwilling to acquit his killer of all crimes and, even

if the jurors believed the evidence pointing to accidental

death, without an involuntary manslaughter instruction, they

might have convicted of voluntary manslaughter as a compromise between convicting of murder and acquitting entirely.

See Keeble, 412 U.S. at 212-13 (“Where one of the elements

of the offense charged remains in doubt, but the defendant is

plainly guilty of some offense, the jury is likely to resolve its

doubts in favor of conviction.”). We therefore reverse and

grant a new trial.

CONCLUSION

The indictment conferred jurisdiction and adequately

informed the defendant of the charges against her. The evidence of residence was sufficient to support the conviction.

We find that there was sufficient evidence at trial to support

an involuntary manslaughter instruction. Accordingly, we

hold that the district court erred in refusing to give an involuntary manslaughter instruction. We VACATE the conviction and REMAND for a new trial. 

UNITED STATES v. ARNT 1037