U.S. v. James

Decision Date09 December 1992
Docket NumberNo. 91-30238,91-30238
Citation980 F.2d 1314
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Shane Arthur JAMES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Peter Offenbecher, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Kenneth Parker and Gene Porter, Asst. U.S. Attys., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before: ALARCON, RYMER, and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

Appellant Shane Arthur James ("James") appeals his conviction for rape committed on the Quinault Indian Reservation in the State of Washington. On June 29, 1990, the victim reported that James entered her home and raped her in the early morning. An indictment was filed on October 3, 1990, charging James with a single count of aggravated sexual assault on an Indian reservation in violation of 18 U.S.C. §§ 1151, 1153, and 2241(a). James was sentenced to eighty-seven months in the custody of the Attorney General and placed on five years of supervised release. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 1291.

We hold that the indictment was sufficient to withstand a Fed.R.Crim.P. 34 challenge after the verdict and that the Quinault Indian Nation did not waive its sovereign immunity, and thus is protected from responding to the subpoena issued by the district court. The other issues of the case have been resolved in a nonpublished memorandum disposition.


James argues that the indictment was defective because it failed to state the jurisdictional fact that he was an Indian. James contends that this failure constitutes a fatal defect, thereby rendering the indictment jurisdictionally defective.

We review the sufficiency of an indictment de novo. United States v. Normandeau, 800 F.2d 953, 958 (9th Cir.1986).

An essential purpose of an indictment is to give a defendant notice of the charge so that he may defend or plead his case adequately. Id. Generally, the failure of an indictment to detail each element of the charged offense constitutes a fatal defect. United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979). A claim of a defective indictment can be raised at any time, but "[c]hallenges [should] be made at the earliest possible moment.... [I]ndictments which are tardily challenged are liberally construed in favor of validity." United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.1976), cert. denied, Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977). Furthermore, tardy challenges to an indictment must be "construed according to common sense." Normandeau, 800 F.2d at 958 (internal quotations omitted). A "minor or technical deficiency" in the indictment will not reverse a conviction if there is no prejudice. Id.

In Normandeau, we held that the indictment as a whole adequately apprised the defendant of the charges against him and was therefore legally sufficient. The defendant was convicted after a four day trial and questioned the validity of the indictment on appeal. The indictment stated that the defendant "receive[d], conceal[ed] and facilitate[d] the concealment and transportation of ... [more than] 1,000 pounds of marijuana in the form of hashish, knowing that [it] had been imported into the United States contrary to law." 800 F.2d at 958 (brackets in original). The defendant claimed that the indictment failed to specify what law the importation violated. Id. In Normandeau, we found that the "key question [as to whether an indictment is adequate] is whether an error or omission in an indictment worked to the prejudice of the accused." Id. If there was no prejudice, the conviction would not be reversed merely because a "minor or technical deficiency in the indictment is later discovered." Id. We held that the indictment had "sufficiently informed [the defendant- ] of the nature of the ... charge so that no prejudice to him could have ensued. Absent such prejudice, the conviction may not be reversed for any omission in the indictment." Id.

James relies on Hilderbrand v. United States, 261 F.2d 354 (9th Cir.1958). Hilderbrand pleaded guilty to and was convicted of second degree murder. Apparently, the prosecution was based on 28 U.S.C. § 1153, which requires that both the defendant and the victim be Indians 1. On appeal of the denial of his petition under 28 U.S.C. § 2255, Hilderbrand raised a claim that had not been presented below. He contended that the indictment was insufficient because it failed to allege that he was an Indian 2, and therefore, if this were true, the district court lacked jurisdiction over the case. 261 F.2d at 355. Hilderbrand argued for either a reversal based on the indictment or for the opportunity to amend his motion to allege that "neither he nor the deceased were Indians maintaining tribal relations." Id.

The Hilderbrand indictment cited only 18 U.S.C. § 1111, which merely defines the types of murder. The indictment alleged that the crime took place on an Indian reservation, but did not allege that the crime took place by an Indian against an Indian. In addition, the indictment failed to cite to any statute other than the general murder statute. Thus, we ordered the dismissal of the indictment as insufficient.

The indictment against James stated:

On or about the 29th day of June, 1990, in the Western District of Washington, within Indian country, on the Quinault Indian Reservation, the defendant, Shane Arthur James, did commit an offense which is a felony under chapter 109A of Title 18, United States Code, in that he knowingly caused the victim to engage in a sexual act by using force against said [victim].

All in violation of Title 18, United States Code, Sections 1151, 1153, and 2241(a). 3

The indictment should have contained allegations that James was an Indian and that the victim was an Indian. The fact that both he and the victim were Indians was established in the grand jury proceedings and at trial beyond a reasonable doubt.

When the sufficiency of the indictment is challenged after trial, it is only required that "the necessary facts appear in any form or by fair construction can be found within the terms of the indictment." Kaneshiro v. United States, 445 F.2d 1266, 1269 (9th Cir.) (internal quotations omitted) (emphasis added), cert. denied, 404 U.S. 992, 92 S.Ct. 537, 30 L.Ed.2d 543 (1971). "A challenge to the sufficiency of an indictment is not a game in which the lawyer with the sharpest eye or the cleverest argument can gain reversal for his client." United States v. Coleman, 656 F.2d 509, 510 (9th Cir.1981) (internal quotations omitted).

In Coleman, the appellant claimed that the indictment failed to state that the savings and loan he robbed was federally insured. The statute cited in the indictment defined a federal crime of robbery, which included within its definition a federally insured savings and loan association. See 18 U.S.C. §§ 2113(a) and (g). We held that the indictment had to be liberally construed as "Coleman failed to raise any objection to it until after trial." Coleman, 656 F.2d at 510.

We found that Coleman could have resolved any ambiguity in the indictment prior to trial by filing an appropriate motion because the statute provided the necessary information. Coleman, 656 F.2d at 511. "The only issue ... is whether the indictment, by reference to [the statute]," alleged sufficient information to cure the deficiency. Id. (emphasis added). "[I]nclusion in [the indictment] of the statutory citation provide[d] a means by which a defendant [could] inform himself [or herself] of the elements of the offense." Id. In upholding the indictment in Coleman, we held that "the indictment, by reference to the statute," adequately informed the defendant of the necessary information. Id.

Similarly, in this case, the necessary elements of the crime appear in the indictment by reference to the relevant statutes. James could have easily resolved any problems in the indictment by filing an appropriate motion prior to trial. Applying the liberal standard of review to an indictment challenged after the conclusion of the trial, we hold that the indictment, by including reference to the statute, adequately informed James the status as Indians of both himself and the victim.

When the indictment is questioned prior to trial, reference to a statute cannot cure a defect in the indictment where it fails to allege the elements of the crime. United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir.1987) 4. In Kurka, the defendant moved to dismiss the indictment on the ground that it failed to allege that the damage to the property was willful. The district court denied the motion. Id. at 1428. The failure to include the element was held to render the indictment defective. It was also noted that the erroneous interpretation persisted throughout the trial. Id. at 1431.

Where an indictment is questioned post trial, reference to a statute will cure some defects, as in Coleman and here. But the defendant must have been given adequate knowledge of the missing elements in order to satisfy the due process requirement; otherwise, reference to a statute will not cure the defect in the indictment. See Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986) (the information's citation to a statute which merely defined the degrees of murder, identifying murder by torture as one type of first degree murder, did not provide the defendant adequate notice of the specific charge of first degree murder by torture).

The present case differs from Kurka in that James was aware of all of the elements to be proven at trial. The Government provided James with a copy of the grand jury proceedings which included the testimony of an agent of the Federal Bureau of Investigation who testified to the fact...

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