U.S. v. Keith

• Decision Date: 26 September 1979
• Docket Number: No. 79-1075,79-1075
• Citation: 605 F.2d 462
• Parties: UNITED STATES of America, Appellee, v. Robert KEITH, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 462

605 F.2d 462

UNITED STATES of America, Appellee, v. Robert KEITH, Appellant.

No. 79-1075.

United States Court of Appeals,

Ninth Circuit.

Sept. 26, 1979.

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 ^*, Senior District Judge.

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. §§ 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 § 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 § 1112 in charging that Keith operated his vehicle "without due caution and circumspection." ¹

Keith contends that two essential elements of the offense of involuntary manslaughter under § 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.

Keith is correct in his contention that the two elements he cites are essential for an involuntary manslaughter conviction under § 1112. In United States v. Pardee, 368 F.2d 368, 374 (4th Cir. 1966), the court held that jury instructions concerning an alleged § 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 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 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 § 1112 construed to require gross negligence). ² The indictment under which Keith was charged did not contain all the elements of the offense charged.

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).

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).

The indictment did not charge two essential elements. The grand jury may well have believed that § 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.

The Government contends that the indictment is sufficient because it tracks the language of § 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)).

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 § 1112 and the indictment that tracked the language of § 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 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 § 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...