GEORGE SABAT BROOKS, JR., PETITIONER V. UNITED STATES OF AMERICA No. 90-5433 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The order and per curiam opinion of the court of appeals (Pet. App. 1a-3a) are not reported. The judgment and order of the district court (Pet. App. 1b-3b) are not reported. The report and recommendation of the magistrate (Pet. App. 1c-9c) are not reported. JURISDICTION The judgment of the court of appeals was entered on April 26, 1990. The petition for a writ of certiorari was filed on July 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner may collaterally attack a conviction based on a guilty plea to an information charging rape under a statute that had been repealed and superseded. STATEMENT Following his plea of guilty in the United States District Court for the Western District of Texas, petitioner was convicted of rape, in violation of 18 U.S.C. 2031. The district court sentenced him to a term of 50 years' imprisonment. Petitioner did not appeal his conviction, but subsequently moved for post-conviction relief pursuant to 28 U.S.C. 2255. The district court denied the motion. Pet. App. 1b-3b. The court of appeals affirmed. Pet. App. 1a-3a. 1. On January 12, 1987, a special agent of the Federal Bureau of Investigation filed a criminal complaint alleging that on or about January 11, 1987, petitioner abducted Rhonda Jean Glahn and transported her onto the Fort Hood Military Reservation where he raped and sodomized her at knife point. On February 20, 1987, petitioner pleaded guilty to a one-count information charging him with rape, in violation of 18 U.S.C. 2031. /1/ Gov't C.A. Br. 1-2. At his guilty plea hearing, "(petitioner) admitted that he and another 'abducted' the victim 'at knife-point' and that thereafter she 'was ordered to remove her clothing and then forcibly raped and sodomized by Specialist-4 Simmons and (petitioner),' and that the victim 'did not consent to acts of sexual intercourse performed upon her by (petitioner) and Specialist-4 Simmons' and 'she was repeatedly told she would be killed if she did not cooperate.'" Pet. App. 3a. 2. On January 28, 1988, petitioner filed a motion under 28 U.S.C. 2255, alleging that the statute that he was convicted of violating had been repealed prior to his guilty plea and conviction. On March 24, 1988, the motion was assigned to a United States magistrate, who filed his report and recommendation on May 3, 1989. Pet. 2; Pet. App. 1c-9c; Gov't C.A. Br. 2. The magistrate acknowledged that 18 U.S.C. 2031 had been repealed, effective December 10, 1986, and had been replaced by 18 U.S.C. 2241 (Pet. App. 4c). The magistrate nevertheless found (Pet. App. 7c) that "rape" and "carnal knowledge," as defined at common law, were "sexual act(s)" under Section 2241, as defined in Section 2245. /2/ Therefore, the facts alleged in the information charged a violation of 18 U.S.C. 2241(a). The magistrate further found that the information did not prejudicially mislead petitioner, even though the sexual acts required to be proved for a conviction under Section 2241 were defined with specificity within the statute, rather than, as under the repealed Section 2031, described in broad and undefined terms -- i.e., "carnally knowing a female." As the magistrate explained, the penetration element of "rape" required to be proved under repealed Section 2031 is the same as the penetration element of the "sexual act" as defined in 18 U.S.C. 2245(2)(A) and required to be proved under Section 2241(a). Pet. App. 7c-8c. The magistrate therefore concluded that the information was not so defective that it deprived the district court of jurisdiction, and recommended that petitioner's Section 2255 motion be dismissed. Pet. App. 8c-9c. The district court adopted the magistrate's memorandum opinion and recommendation in a judgment and order dated June 26, 1989. Pet. App. 1b-3b. 3. The court of appeals affirmed. Pet. App. 1a-3a. The court relied primarily on "the reasons stated in the magistrate's thorough and well-considered report" (id. at 2a), but also took note of petitioner's admissions at the guilty plea hearing (id. at 3a). ARGUMENT 1. Petitioner contends (Pet. 3-7) that, because the information to which he pleaded, which cited a repealed statute, failed to state an offense, the district court lacked jurisdiction to convict him of rape. This contention is without merit. We note at the outset that when, as here, an indictment or information is attacked for the first time in a collateral proceeding under 28 U.S.C. 2255, a reviewing court will consider the challenge only in exceptional circumstances, e.g., where the issue is of great importance, the need for a remedy is apparent, or the sentencing court plainly lacked jurisdiction over the offense charged. See United States v. Pierce, 868 F.2d 1379, 1384 (5th Cir.), cert. denied, 110 S.Ct. 321 (1989); Merrill v. United States, 599 F.2d 240, 242 (8th Cir. 1979); see also United States v. Timmreck, 441 U.S. 780, 783-785 (1979). Petitioner has made no showing that such exceptional circumstances are present here. A defendant who voluntarily and intelligently pleads guilty to a criminal offense waives all defects in the charging instrument, unless the defect would deprive the court of jurisdiction. See, e.g., United States v. Lopez, 704 F.2d 1382, 1385 n.3 (5th Cir.), cert. denied, 464 U.S. 935 (1983). The failure of an indictment or information to charge an offense is a jurisdictional defect that is not waived when a defendant enters a guilty plea. See, e.g., United States v. Morales-Rosales, 838 F.2d 1359, 1361-1362 (5th Cir. 1988). However, Fed. R. Crim. P. 7, which governs indictments and informations, provides in relevant part (id. at (c)(3)) that: Error in the citation (of the provision of law defendant is alleged to have violated) or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendant's prejudice. /3/ In the present case, the facts alleged in the information were sufficient to charge an offense against the United States, even though the statute cited in the information, former 18 U.S.C. 2031, had been repealed and replaced by 18 U.S.C. 2241 before petitioner committed his offense and was charged. It is of no consequence that the language of the information tracked the language of the repealed statute, not that of Section 2241. Statutory language need not be used in a charging instrument so long as the instrument contains the essential elements of the offense and gives the defendant the notice necessary to defend against prosecution of the offense. See Hamling v. United States, 418 U.S. 87, 117 (1974). Contrary to petitioner's contention, the information, which charged him with committing "rape by carnally knowing a female," stated the essential elements of an offense under Section 2241(a) and thus sufficiently informed him of the act he was alleged to have committed. Although the terms "rape" and "carnal knowledge" are neither used nor defined in Sections 2241 or 2245, both have well-established common law definitions. "Rape" is carnal knowledge of a female by force or threat thereof. See, e.g., Williams v. United States, 327 U.S. 711, 715 (1946). Many courts have held "carnal knowledge" to be synonymous with "sexual intercourse." See, e.g., United States v. Renville, 779 F.2d 430, 434 (8th Cir. 1985), interpreting Williams v. United States, 327 U.S. at 717; see also 75 C.J.S. Rape Section 10.a (1952 and 1990 Supp.) ("Carnal knowledge means sexual intercourse."). Even though the information did not contain the statutory language of Sections 2241 ("knowingly causes another person to engage in a sexual act") and 2245 ("contact between the penis and the vulva" with contact occurring "upon penetration, however slight"), the language it did contain -- "rape" and "carnal knowledge" -- clearly fell within the meaning of "sexual act" as used in Section 2241 and defined in Section 2245. The information therefore properly charged an offense under Section 2241. Accordingly, the courts below correctly held that the error in the information did not deprive the district court of jurisdiction to convict petitioner. 2. Petitioner further contends (Pet. 7-8) that the information to which he pleaded misled him to his prejudice. He alleges that the government must prove more specific conduct under 18 U.S.C. 2241(a) than under the former Section 2031, and that, as a result of being charged under the latter statute, he was unaware of the more numerous defenses available to him. This contention is also without merit. The term "sexual act" as used in Section 2241 includes "contact between the penis and the vulva." Contact involving the penis "occurs upon penetration, however slight." 18 U.S.C. 2245(2)(A). Under former Section 2031, however, "(t)here can be no dispute that by definition it is fundamental that penetration by the male organ is necessary to constitute the crime of rape or carnal knowledge." Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1948); see United States ex rel. Bonner v. De Robertis, 798 F.2d 1062, 1067 n.7 (7th Cir. 1986); United States v. Red Cloud, 791 F.2d 115, 117 (8th Cir. 1986); 75 C.J.S. Rape Section 10.b (1952 and 1990 Supp.). And slight penetration is all that is required to establish the carnal knowledge element of rape. Ibid. Because the elements required to be proved by the government under both former Section 2031 and the present Section 2241(a) were the same, e.g., "penetration, however slight" (18 U.S.C. 2245(2)(A)), petitioner could not have been misled to his prejudice because the information charged an offense under former Section 2031 rather than the present Section 2241(a). /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney NOVEMBER 1990 /1/ The information charged as follows (C.A.R.E. 8): On or about January 10 and January 11, 1987, within the special maritime and territorial jurisdiction of the United States at West Fort Hood, Texas, within the Western District of Texas, the defendant, GEORGE SABAT BROOKS did unlawfully, willfully, and knowingly commit rape by carnally knowing a female, Ms. Rhonda J. Glahn, by force and without her consent in violation of Title 18, United States Code, Section 2031. /2/ In relevant part, 18 U.S.C. 2241, the aggravated sexual abuse statute, provides: (a) By force or threat. -- Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act -- (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnaping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both. A companion definitional statute, 18 U.S.C. 2245, describes the genital, anal, or oral contacts that constitute "sexual acts" within the meaning of Section 2241. In particular, "contact between the penis and the vulva (constituting a "sexual act") * * * occurs upon penetration, however slight." 18 U.S.C. 2245(2)(A). /3/ This subsection of Rule 7 codifies the principle announced in Williams v. United States, 168 U.S. 382, 389 (1897): We must look to the indictment itself, and if it properly charges an offence under the laws of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offence charged was covered by a different statute. /4/ Moreover, as the court of appeals observed (Pet. App. 3a), petitioner admitted at his guilty plea proceeding that he abducted his victim at knife-point, that he forcibly raped and sodomized her, and that she was threatened with death if she did not cooperate with her assailants. In effect, petitioner expressly admitted to the elements of an offense under Section 2241 -- "knowingly caus(ing) another person to engage in a sexual act * * * by threatening or placing that other person in fear that any person will be subjected to death." See 18 U.S.C. 2241(a). In these circumstances -- where petitioner demonstrated his awareness of the specific conduct that formed the basis of the charge -- petitioner can make no credible showing that he was misled to his prejudice.