* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 99-3276

v. D. Kan. BLAKE A. MADDEN,

Defendant-Appellant. (D.C. No. 99-40006-01-RDR)

ORDER AND JUDGMENT *

Before KELLY , McWILLIAMS , and HENRY , Circuit Judges.
Blake A. Madden appeals his conviction for driving while having a blood alcohol concentration of .08 or more, in violation of Kan. Stat. Ann. § 8- 1567(a)(2) and 18 U.S.C. § 13. Mr. Madden first ar gues that the information omitted a critical element of the offense, and thus , the court was without jurisdiction. Second, Mr. Madden contends that the evidence was insufficient to convict him of the charge. We hold that because th e omission of which Mr. Madden complains is not an essential element, the amended information was1 As the parties are familiar with the facts of thi s case, to which Mr.

Madden has stipulated, we abbreviate our factual re citation.

2Count 1 of the information read as follows: On or about the second day of September, 1995, at F ort Riley, Kansas, a federal military installation with in the exclusive jurisdiction of the United States, in the District of Kansas, BLAKE A. MADDEN, did unlawfully drive and operate a motor vehicle while the alcohol concentration in his blood or breath at the time orwithin two hours after he operated the vehicle is .08 or higher, in violation of Title 18, United States Code, Section 13, and K.S.A. 8-1567(a)(1) (Class ___); and/or BLAKE A. (continued...) -2- adequate. Second, we hold the evidence was suffici ent for a rational trier of fact to convict Mr. Madden of the charge. Accordingly, we affirm the conviction.

I. BACKGROUND 1 On September 2, 1995 at approximately 2:00 a.m., Mr . Madden approached a DUI (driving while under the influence of alcohol ) check point while driving on Fort Riley, a federal military installation in Kans as. Mr. Madden submitted to a voluntary preliminary breath test (PBT), which yiel ded a breath alcohol concentration (BAC) of .09%. At approximately 3:13 a.m., an Intoxilyzer 5000 breath test yielded a BAC of .101%. The government charged Mr. Madden with driving unde r the influence of alcohol in violation of Kan. Stat. Ann. § 8-1567(a) (1) & (a)(3), as well as 18 U.S.C. § 13. 2The United Sates Attorney for the District of Kan sas and Mr.2 (...continued) MADDEN, did unlawfully drive and operate a motor vehicle while under the influence of alcohol or dru gs, in violation of Title 18, United States Code, Section 13, and K.S.A. 8-1567(a)(3) (Class ___). Aplt. App. at B-4. -3- Madden entered into a diversion agreement, through which prosecution was to be deferred for twelve months until December 13, 1996. If, at that time, Mr. Madden had fully complied with the terms of the diversion agreement, the charges were to be dismissed with prejudice. Among the terms of th e agreement was a condition that Mr. Madden would violate no laws during its te rm. The diversion agreement further stated: In the event that the Special Assistant United Stat es Attorney shall resume criminal prosecution in the c ase of USA v. BLAKE A. MADDEN, Case No. 95-M-9212-01, it is agreed and stipulated that the case shall be submitted to the Court upon the following stipulations: 1. Defendant stipulates that the Government’s evidence, standing alone, would be adequate to convict the defendant of the offense charged in the above-captioned case. 2. Further, Defendant stipulates to make no objectio n to the introduction and admission of investigative evidence and reports which the Government now has in its possession and seeks to use as evidence in the case. Aplt. App. at C-9 Unfortunately, on July 13, 1996, Mr. Madden was aga in arrested for DUI. On September 26, 1996, the Municipal Court of the C ity of Manhattan, Kansas-4-

convicted him of that offense. On a motion from th e government, the court revoked the diversion agreement on August 24, 1998. After a trial before a magistrate judge, Mr. Madden was convicted of drivi ng under the influence in violation of Kan. Stat. Ann. § 8-1567(a)(2), transp ortation of an open container in violation of Kan. Stat. Ann. § 8-1599, and possessi on of alcohol by a minor in violation of Kan. Stat. Ann. § 41-727. Mr. Madden appealed to the district court, which “f[ound] no merit to any of the claims raisedby the defendant” and affirmed the magistrate’s ruling. See Aplt.’s App. at K-43.

II. DISCUSSION Mr. Madden argues that the district court erred whe n it held the information contained all the elements of the offense intended to be charged. He contends the information was jurisdictionally insufficient, because it did not include the phrase “as measured within two hours of the time of operat ing or attempting to operate a vehicle,” to describe his breath alcohol concentrat ion. He further argues the evidence was insufficient for a conviction under Kan. Stat. Ann. § 8-1567(a)(2) because the evidence established his BAC at 3:13 a. m. but did not establish his BAC at 2:00 a.m., while he was driving. We address each argument in turn.-5-

A. Sufficiency of the Information We review the sufficiency of an indictment or infor mation de novo. See United States v. Dashney , 117 F.3d 1197, 1205 (10th Cir. 1997). “The indic tment or the information shall be a plain, concise and de finite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). Under this rule, “[c]onvictions are no longer reversed be cause of minor and technical deficiencies which did not prejudice the accused[, and] [t]his has been a salutary development in the criminal law.” Russell v. United States , 369 U.S. 749, 763 (1962) (quotation omitted). Of course, “the substantial safeguards to those charged with serious crimes cannot be eradicated un der the guise of technical departures from the rules.” Id. Accordingly, an indictment or information “is suffi cient if it contains the elements of the offense charged, putting the defend ant on fair notice of the charge against which he must defend, and if it enables a d efendant to assert an acquittal or conviction in order to prevent being placed in j eopardy twice for the same offense.” United States v. Poole , 929 F.2d 1476, 1479 (10th Cir. 1991) (quotations omitted). The indictment or informatio n need not recite the exact language of the statute. See id. Moreover, “after a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects . . . .” Clay v. United-6-

States , 326 F.2d 196, 198 (10th Cir. 1963). “[W]here there is a post-verdict challenge . . . asserting the absence of an elementof the offense, it has been held the indictment [or information] will be sufficient if it contains ‘words of similar import’ to the element in question.” United States v. Brown , 995 F.2d 1493, 1505 (10th Cir. 1993) (quoting United States v. Vogt , 910 F.2d 1184, 1201 (4th Cir. 1990)). Mr. Madden’s first challenge to the sufficiency of the information is based on the fact that it tracked the language of an outd ated version of the Kan. Stat. Ann. § 8-1567:

No person shall operate or attempt to operate any v ehicle within this state while: (1) The alcohol concentration in the person’s blood or breath, at the time or withintwo hours after the person operated or attempted to ope rate the vehicle, is .10 or more. Kan. Stat. Ann. § 8-1567 (1985 Supp.). At the time of his conviction, the statute read as follows:

No person shall operate or attempt to operate any v ehicle within this state while the alcohol concentration i n the person’s blood or breath, as measured within two hour s of the time of operating or attempting to operate a ve hicle is .08 or more. Kan. Stat. Ann. § 8-1567(a)(2) (1995 Supp.). Mr. Madden claims that the amendment added a new, e ssential element to the DUI offense, “as measured within two hours,” an d that the information was-7-

fatally deficient because it did not set out the la nguage of the statute or words of similar import. We disagree. The information alle ged the three essential elements of the offense: that (1) on the date in q uestion, (2) Mr. Madden drove a vehicle (3) while having had an alcohol concentrati on in his blood or breath of .08 or higher. We agree with the district court th at the information adequately informed Mr. Madden of the charges against which he was to defend. The phrase used in the information—“at the time or within two hours after the person operated to attempted to operate the vehicle”—gave notice of what the government was charging and what it had to prove. The requirement that the government establish that the BAC was measured “within two hours of operating or attempting to ope rate a vehicle” is a foundational matter relating to the admissibility a nd competency of evidence. See State v. Pendleton , 849 P.2d 143, 148-49 (Kan. App. 1993). That requ irement did not, however, introduce a new element into the ‘perse’ statute. See id.

B. Sufficiency of the Evidence Mr. Madden next argues the evidence was insufficient for a conviction under Kan. Stat. Ann. § 8-1567(a)(2) because the go vernment established his BAC at 3:13 a.m. but did not establish his BAC at 2 :00 a.m., while he was driving. This argument is also unavailing. Mr. Ma dden is bound by his-8-

stipulation: “the Government’s evidence, standing alone, would be adequate to convict the Defendant of the offense charged.” Apl t. App. at C-9. Moreover, Kansas law clearly demonstrates the evidence is suf ficient for such a conviction. “To obtain a conviction for a per se violation unde r K.S.A. 8-1567(a)(2), the State must show the alcohol concentration was t ested within two hours of the last time a defendant operated or attempted to oper ate a vehicle.” Pendleton , 849 P.2d at 148. Direct evidence of the defendant’s BA C while driving is not required: [A] per se violation under subparagraph (a)(2) requ ires a

blood alcohol test result of .08 or more as measure d within 2 hours of driving or attempting to drive—no other evidence is required to establish a prima facie cas e. In other words, in a prosecution for a per se violatio n, the trier of fact may infer that the test result accurately measured the defendant’s blood alcohol concentratio n at the time the defendant was last operating or attemp ting to operate a vehicle.
State v. Hartman , 991 P.2d 911, 914 (Kan. App. 2000). Here, Mr.Mad den acknowledges the test was given approximately one h our and thirteen minutes after he last operated the vehicle, well within the required two-hour period. Accordingly, we agree with the district court that the evidence was sufficient to establish a conviction under Kan. Stat. Ann. § 8-15 67(a)(2).

III. CONCLUSION-9-

We hold the information was sufficient, as was the evidence, in this case. Accordingly, we AFFIRM Mr. Madden’s conviction.

Entered for the Court,

Robert H. Henry Circuit Judge