United States v. Denmon, 72-1717.

• Decision Date: 14 August 1973
• Docket Number: No. 72-1717.,72-1717.
• Parties: UNITED STATES of America, Appellee, v. Marion C. DENMON, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

483 F.2d 1093 (1973)

UNITED STATES of America, Appellee, v. Marion C. DENMON, Jr., Appellant.

No. 72-1717.

United States Court of Appeals, Eighth Circuit.

Submitted June 11, 1973.

Decided August 14, 1973.

James R. Wyrsch, Kansas City, Mo., for appellant.

Anthony Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, LAY and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

The defendant in a jury trial was convicted of selling, in violation of 18 U.S.C. § 641,¹ three air drills owned by the United States and of a value in excess of $100. The District Court suspended sentence and placed the defendant on probation for three years.

On appeal, the defendant raises three basic arguments. First, the indictment was insufficient since it failed to charge that the defendant knew that the property sold belonged to the United States, that the property had been stolen from the United States, and that the defendant acted knowingly, unlawfully, and wilfully. Second, the defendant claims there was insufficient evidence that the air drills were the property of the United States and had been stolen from the United States. Third, the defendant maintains that the District Court made improper comments in the presence of the jury that violated the defendant's Fifth and Fourteenth Amendments due process guarantees.

We hold that the indictment on the offense charged was legally insufficient since it failed to allege that the defendant acted knowingly, unlawfully, and wilfully. We, therefore, reverse the judgment of conviction.

On April 6, 1972, the grand jury returned the following true bill against Marion C. Denmon, Jr.:

"THE GRAND JURY CHARGES THAT:

"On or about the 3rd day of March, 1972, in the Western District of Missouri, MARION C. DENMON, JR. did sell and dispose of, without authority, three Aro one-fourth inch air drills, model number 8071C, bearing serial numbers 2896L71, 2897L1, and 2938L71, the same being the property of the United States having a value in excess of $100.00, all in violation of Section 641, Title 18, United States Code."

The first two arguments advanced by the defendant concerning the insufficiency of the indictment merit brief comment. The defendant's position, that the Government must charge in the indictment and prove at trial that the property sold belonged to the United States and had been stolen from the United States and that defendant knew these facts, finds support in the Tenth Circuit cases of Findley v. United States, 362 F.2d 921 (10th Cir. 1966) and United States v. Baltrunas, 416 F.2d 401 (10th Cir. 1969). However, the better reasoned cases in the Fifth and Ninth Circuits, United States v. Boyd, 446 F.2d 1267 (5th Cir. 1971) and United States v. Howey, 427 F.2d 1017 (9th Cir. 1970), hold that the facts that the defendant knew the property belonged to the United States and that it had been stolen from the United States were irrelevant to the crime of knowingly selling property, without authority, belonging to the United States.

The Ninth Circuit in Howey not only said that "we think that Findley is wrong, and we decline to follow it . . .", but also that "it was not an essential part of the common law larceny-type offense that the thief knew who owned the property he took; it was enough that he knew it did not belong to him." The Fifth Circuit in Boyd expressly refused to follow Findley, and held that the accused's knowledge of the fact of United States ownership is irrelevant in a § 641 prosecution. The District Court's instruction requiring that the defendant must have known that the property was owned by the United States was therefore unnecessary, but not prejudicial to the defendant because it imposed a greater burden upon the Government than was called for in a prosecution of this type. Therefore, the indictment in a § 641 case need not charge, nor must the Government prove, that the defendant knew that the air drills were United States property or that they were stolen from the United States. The requirement of § 641 relating to United States property is only a basis for federal jurisdiction. United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970).

However, the failure of the indictment to charge that the defendant acted knowingly, unlawfully, and wilfully is fatally defective to the Government's prosecution of this indictment. Morisette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), holds that a criminal intent is an essential element of an offense under § 641. Despite this fact, the Government contends that the trial court's proper instruction requiring a finding of criminal intent has remedied the defect in the indictment. We think a defect of the type present in this case is more than a matter of mere form or technical pleading and constitutes a substantive defect in the indictment. It is elementary in American jurisprudence that an indictment must set forth the essential elements of the offense charged, and if it does not, a conviction based thereon is fatally defective. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); Honea v. United States, 344 F.2d 798 (5th Cir. 1965); Walker v. United States, 342 F.2d 22 (5th Cir. 1965); Hughes v. United States, 338 F.2d 651 (1st Cir. 1964); Standard Oil Company of Texas v. United States, 307 F.2d 120 (5th Cir. 1962); United States v. Jordan, 284 F.Supp. 758 (D.Mass.1968). The specific reason for the requirement that the indictment contain all of the essential elements of the crime charged in this case is that there could be no assurance that the grand jury would indict if it had not considered all of the essential elements of the crime. The defendant's Fifth Amendment protection of being called to answer only upon a grand jury indictment would be eroded by allowing the courts to supply missing elements of the charged offense. This is not to be viewed in a technical sense as requiring complete and comprehensive allegations of all the sections of statutory language, but only as stating the essential elements so as to fairly apprise the defendant of the nature of the charge, protect against double jeopardy, and assure that the grand jury has considered the essential elements of the charged offense.

The Supreme Court when addressing itself to this issue has throughout the years held that an indictment must allege all of the essential elements of a crime in order to be sufficient. United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Morisette v. United States, supra at 270, 72 S.Ct. at 253, n. 30; Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1881). The Government here, however, would remedy the defect of not alleging criminal intent or mens rea by applying the following "fairness test" enunciated by Professor Wright:

"The fundamental purpose of the pleadings is to inform the defendant of the charge so that he may prepare for his defense, and the test of sufficiency ought to be whether it is fair to the defendant to require him to defend on the basis of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just suggested." C. Wright, Federal Practice and Procedure, § 125, at 233-34 (1969) (footnotes omitted).

In applying the "fairness test," the Government points out that the District Court properly instructed the jury on specific intent and defined "knowingly," "unlawfully" and "wilfully." So it did and it is probable that the defendant was not mislead as to the crime charged, but we think the omission of an admittedly essential element of the offense in the indictment is a matter of substance and not form. Nor can the missing element here be properly implied or inferred from other elements and allegations of the indictment.

We heartily applaud the salutory trend in recent years to simplify the indictment, as embraced in Fed.R.Crim.P. 7(c) that only requires that "the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."² Yet we cannot go so far in economy of words as to approve the omission in an indictment of essential elements of an offense.

An analysis of the leading cases discloses the minimum allegations necessary for a valid indictment and examples of formal defects that may be corrected or disregarded. United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113 (1953), which can be called an "essential elements" case, held that the name of the person who administered the oaths to the defendants for a senatorial subcommittee hearing was not an essential element of the crime of perjury and need not be included in the indictment. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417 (1931), presents another type of case that may be called both an "essential elements" and a "formal defects" case. Hagner held that the failure of the indictment to specifically state, according to the words of the statute, that the defendants caused a letter to be delivered by mail was a non-prejudicial, formal defect that would be disregarded. Hagner v. United States, supra at 431, 52 S.Ct. at 419. The indictment did state that an envelope was deposited at the post office in Scranton, Pennsylvania.

Other cases concern the factual situation in which the indictment is expressly amended after the grand jury has passed upon it. In Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1886), the leading case on sufficiency of indictments concerning amendments, the defendant was charged with making a false report "with intent to deceive the comptroller of the currency and the agent appointed to examine the affairs of said association." The trial court, upon a...