U.S. v. Arnt, 05-50124.

Citation474 F.3d 1159
Decision Date25 January 2007
Docket NumberNo. 05-50292.,No. 05-50124.,05-50124.,05-50292.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Latasha Lorraine ARNT, a/k/a Latasha Lorraine Simpson and Latasha L. Cummings, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Jerry A. Behnke, Assistant United States Attorney, Riverside, CA, for the plaintiff-appellee.

Appeals from the United States District Court for the Central District of California; Percy Anderson, District Judge, Presiding. D.C. No. CR-03-00523-PA.

Before B. FLETCHER, FERNANDEZ, and GRABER, Circuit Judges.

BETTY 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 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 lesser-included offense of voluntary manslaughter.

Arnt filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION
Sufficiency of the Indictment

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

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." Velasco-Medina, 305 F.3d at 847 (internal quotation marks omitted).

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.

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 deprive a court of its power to adjudicate a case." United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (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.

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 lesser-included 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.

A defendant is entitled to an instruction on a lesser-included 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, 109 S.Ct. 1443, 103 L.Ed.2d 734 (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, 93 S.Ct. 1993, 36 L.Ed.2d 844 (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).

There is an apparent split in Ninth Circuit authority regarding the standard of review for instructions on lesser-included 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, 109 S.Ct. 1443. 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 Keeble, 412 U.S. at 208, 93 S.Ct. 1993. 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...

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