Although an indictment that tracts the statutory language defining an offense is usually sufficient, mere recitation of statutory language will only save an indictment if all elements are subsumed in the language. In United States v. Carll, 105 U.S. 611 (1881), the indictment followed the language of the statute but was found insufficient for failure to allege that the defendant knew that the instruments he uttered were forged or counterfeited. As the Court pointed out:
[I]t is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.
Id. at 612. "An indictment that tracks the words of the statute violated is generally sufficient, but implied, necessary elements, not presented in the statutory language, must be included. . . ." United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995), cert. denied, 116 S.Ct 1546 (1996).
The rule reiterates the Court's views in United States v. Cruikshank, 92 U.S. 542, 558 (1875):
It is an elementary principle of criminal pleading, that where the definition of the offense, whether it be at common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but . . . it must descend to particulars.
See also United States v. Simmons, 96 U.S. 360 (1877).
In Russell v. United States, 369 U.S. 749 (1962), the indictments charged defendants with contempt of Congress under 2 U.S.C. § 192 in that they failed and refused to answer questions "pertinent to the question under inquiry" before a committee of Congress. The defendants challenged the sufficiency of the inquiry. In holding the indictments insufficient, the Court stated that "[w]here guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute." See Russell, at 764.
The issue in Russell was raised by a motion to dismiss. The Court viewed the defect in the indictment as being one of specificity rather than omission of an essential element. In this situation the Court might have been expected to follow the rule in Hagner v. United States, 285 U.S. 427 (1932), and to overlook the defect as harmless error. However, the Court held that because of the omission of the subject of the inquiry, the indictments wholly failed to inform the defendants of the nature of the accusation against them and were not salvageable by a bill of particulars. "[I]t is a settled rule that a bill of particulars cannot save an invalid indictment." See Russell, at 770; United States v. Rosi, 27 F.3d 409, 414 (9th Cir. 1994).
In Hamling v. United States, 418 U.S. 87 (1974), the Court considered the sufficiency of an indictment under 18 U.S.C. § 1461 making it a crime to mail obscene matter. Defendants challenged the sufficiency of the indictment, which charged them in the language of the statute, for failure to define obscenity. The court distinguished Russell, holding that the generic term "obscene" is not merely a generic or descriptive term but "a legal term of art," raising a question not of fact, as in Russell, but of law. See Hamling, 418 U.S. at 118. See also United States v. Debrow, 346 U.S. 374 (1953).
However, reliance on the language of the statute was fatal to an indictment in a case in which the defendant was charged with involuntary manslaughter under 18 U.S.C. § 1112. Relevant case law had held that gross negligence and actual knowledge of potential harm were additional elements of the offense. The absence of such allegations in the indictment was not cured by the government's proof at trial of these elements or their inclusion in the court's instructions to the jury. See United States v. Opsta, 659 F.2d 848 (8th Cir. 1981). Cf., United States v. Daniels, 973 F.2d 272, 274-75 (4th Cir. 1992), cert. denied, 506 S.Ct. 1086 (1993)(citation to statute insufficient to cure failure of indictment to allege each element of crime when indictment neither tracked statutory language nor cited actual sections violated, because omission opens risk of grand jury failure to consider and find all elements of crime). United States v. Rojo, 727 F.2d 1415, 1416, 1418-19 (9th Cir. 1983) (indictment for theft of public property insufficient when it contained only general citation to statute without any reference to act allegedly committed or to specific provisions of statute). Compare United States v. Yefsky, 994 F.2d 885, 893-94 (1st Cir. 1993) (indictment repeating statutory language for mail fraud conspiracy insufficient because failed to allege plan to defraud as required by case law) with United States v. Cochran, 17 F.3d 56, 61 (3d Cir.) cert. denied, 115 S.Ct. 634 (1994)(indictment charging possession and transportation of child pornography sufficient because tracked statutory language of 18 U.S.C. § 2252, and met scienter requirement on its face with term "knowingly"); United States v. Oakie, 12 F.3d 1436, 1440-41 (8th Cir. 1993)(indictment charging use of firearm during crime of violence, which tracked statutory citation of 18 U.S.C. § 924 but failed to allege scienter requirement sufficient because indictment fairly imported such requirement by reference to statute); United States v. Blackburn, 9 F.3d 353, 357 (5th Cir. 1993), cert. denied, 115 S.Ct. 102 (1994)(indictment failing to allege elements "knowingly" and "executes or attempts to execute," but providing statutory citations, sufficient; indictment need not allege elements in precise statutory terms).