United States v. Analla

• Decision Date: 29 January 1974
• Docket Number: No. 73-1635.,73-1635.
• Citation: 490 F.2d 1204
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Alfred ANALLA, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

490 F.2d 1204 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Frank Alfred ANALLA, Jr., Defendant-Appellant.

No. 73-1635.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted January 7, 1974.

Decided January 29, 1974.

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Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.

Richard J. Smith, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.

Before HILL, BARRETT and DOYLE, Circuit Judges.

HILL, Circuit Judge.

This is an appeal from a conviction of assault resulting in serious bodily injury under 18 U.S.C. § 1153,¹ as defined in N.M.S.A. § 40A-3-5,² Aggravated Battery. Trial was to a jury in the United States District Court for the District of New Mexico.

The evidence is virtually undisputed. Appellant, an Indian, resided on the Laguna Indian Reservation in New Mexico. Late in the evening of April 7, 1973, or early in the morning of April 8, 1973, his younger brother was badly beaten in a fist fight with several other Indians. When the young man returned home, appellant, who had been drinking earlier in the evening, became angry at what had happened. He ascertained the identities of the assailants and, accompanied by a friend, left his residence in search of the men. They took appellant's pickup truck, in which a 12-gauge shotgun and several shells were stored, and drove to the home of Melton Cheromiah, one of the men involved in the fight. Several other men who were involved in the fight also were there, drinking beer and discussing the evening's activities.

Appellant and his companion parked their vehicle some distance past Cheromiah's house, and walked back. Appellant carried the shotgun and his companion carried the shells. Upon reaching the house the men hid in a nearby ditch. Appellant instructed his friend to throw rocks on the roof of the house to lure the occupants outside. His friend did as instructed, and Cheromiah appeared at the front door. Appellant then fired seven or eight shots into the house, one of them striking Cheromiah. Appellant subsequently fired a few more shots into vehicles parked nearby, and then he and his friend left.

Upon these facts appellant was indicted and charged with violating 18 U.S.C. § 1153, as defined in N.M.S.A. § 40A-3-5. Pre-trial motions to dismiss the indictment for failure to state an offense against the United States and for failure to allege essential elements were denied. Appellant's requested instructions on temporary insanity also were denied. The jury found appellant guilty as charged, and he was sentenced to ten years imprisonment.

Appellant's first argument is that the indictment does not charge a crime against the United States. Relying upon Acunia v. United States, 404 F.2d 140 (9th Cir. 1968), he contends the crime of assault resulting in serious bodily injury lacks both a definition and a prescribed penalty, and that any indictment based thereon must be dismissed. We do not agree. Acunia involved a conviction for incest under § 1153. At the time of the alleged offense, however, there was no penalty prescribed for incest; therefore § 1153 was unenforceable as to that crime. The court in Acunia noted, however, that incest would be enforceably proscribed if § 1153 included it among the offenses to be defined and punished in accordance with the law of the state where the offense was committed. Since assault resulting in serious bodily injury is defined and punished by reference to state law, we find appellant's position in this regard to be without merit.

Because the indictment defines assault resulting in serious bodily injury as a lesser included offense of the more serious crime of aggravated battery, appellant contends, the indictment still is defective. He argues that § 1153 must be strictly construed and cannot be extended by intendment to crimes not clearly within its terms. We agree with these legal principles, but we nevertheless find that the plain language of § 1153 and N.M. S.A. § 40A-3-5 supports the indictment. Section 1153 requires more than a mere assault intended to cause serious injury; it requires an assault culminating in a serious injury. It therefore is consistent with N.M.S.A. § 40A-3-5 because a consummated assault is a battery. State v. Grayson, 50 N.M. 147, 172 P.2d 1019 (N. M.1946); 6 C.J.S. Assault and Battery § 57 (1937). Nor are the two statutes different in the type of injury that must be sustained. Section 1153 requires "serious bodily injury" and the state statute requires "great bodily harm". The difference in wording throughout the statutes amounts only to a difference in nomenclature, and not substantive law. The same elements are present in both.

Appellant's final argument concerning the indictment's defectiveness is that it is insufficient for failure to set forth the element of intent, as required by N.M.S.A. § 40A-3-5.

To be legally sufficient an indictment must apprise an accused of the nature of the charge(s) which he must meet, and the allegations contained therein must be sufficiently specific to stand as a bar to further prosecution. Although the indictment in question is not a model of proper criminal pleading, we do not believe its imperfections are prejudicial. It does not, as appellant correctly contends, contain an allegation of specific intent. However, the sufficiency of the indictment must be determined on the basis of practical rather than technical considerations. Robbins v. United States, 476 F.2d 26 (10th Cir. 1973). The gravamen of the charge is a violation of federal law, which the indictment sets forth in the language of § 1153. It therefore is not necessary to allege the elements of the state substantive offense. United States v. Karigiannis, 430 F.2d 148 (7th Cir. 1970). Both the statutory language of § 1153 and a reference to the state statute are incorporated within the indictment. This is all that the law requires and is sufficient to fairly notify appellant of the charge against him. No prejudice appearing, such an omission furnishes no ground for reversal of the conviction.

Appellant's second argument is that he has been denied equal protection of the laws. Section 1153 expressly provides that Indians charged thereunder "shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States." Appellant states this conflicts with the later provision declaring that assault resulting in serious bodily injury is to be defined and punished in accordance with applicable state law.

In considering this argument, it is to be noted that although the equal protection clause of the Fourteenth Amendment does not apply to the federal government, federal discrimination may be so gross as to be unconstitutional by virtue of the Fifth Amendment's due process clause. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The test for determination of this equal protection issue under the Fifth Amendment is whether the racial distinction embodied in § 1153 is reasonably related to any proper governmental objective or whether it is invidious or capricious. To be sure, § 1153 is based upon a racial classification. The constitutionality of such a classification, however, is apparent from the history of the relationship between Indians and the federal government. See Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971); Gray v. United States, 394 F.2d 96 (9th Cir. 1967). That relationship from the beginning has been characterized as resembling that of a guardian and ward. As an incident of such...