Citation of the Statute Violated
Fed. R. Crim. P. 7(c)(1), provides:|
The indictment or information shall state for each
official or customary citation of the statute, rule, regulation or
provision of law which the defendant is alleged therein to have
The above provision is limited by paragraph 7(c)(3) which
Harmless Error. Error in the citation or its
shall not be ground for dismissal of the indictment or information
reversal of a conviction if the error or omission did not mislead
defendant to the defendant's prejudice.
At the time the Federal Rules of Criminal Procedure were
current law did not regard citation to statutes or regulations as
the indictment; convictions could, therefore, be sustained on the
basis of a
statute or rule other than that cited, as in Williams v. United
States, 168 U.S. 382 (1897), and United States v.
U.S. 219 (1941). The Court stated in Hutcheson that the
of the statute is immaterial. Hutcheson, 31 2 U.S. at 229.
prosecutor] may have conceived the charge under one statute which
sustain the indictment but it may nevertheless come within the
another statute." Id. Fed. R. Crim. P. 7(c)(1), is for the
of the defendant, but is likewise not intended to cause a
dismissal; it is
simply to provide a means properly to inform the defendant without
endangering the prosecution. Thus the miscitation of a statute
warrant reversal where the language of an indictment makes the
and the defendant can show no prejudice. United States v.
F.2d 1044 (9th Cir. 1981).
The citation of the wrong statute in an indictment is not
reversal of a conviction unless the defendant was misled to his
. . [There will be] no prejudice . . . when the elements of the
are the same and the defendant was adequately appraised of the
United States v. Hall, 979 F.2d 320, 323 (3d Cir. 1992).
Moreover, the fact that the citation is in the heading rather
in the body of the indictment, unless it misleads the defendant to
prejudice, will not affect the indictment. See Huizar v.
States, 339 F.2d 173 (5th Cir. 1964), cert. denied, 380
(1965). Nor did the erroneous citation of a State statute in
a predicate RICO act prove fatal where the reference to the State
served to identify generally the kind of activity made illegal by
Federal statute. See United States v. Welch, 656
1058 (5th Cir.), cert. denied, 456 U.S. 915 (1982).
Citation of the statute charged should be distinguished from
reference to a statute that is an element of the offense. Here the
reference must be sufficient to apprise the defendant of its
Thus, where the indictment charges that the defendant unlawfully
diamonds "contrary to law," the words "contrary to law" refer to
provisions outside the offense of smuggling that is being charged,
law must be identified to determine the basis for the prosecution.
See Keck v. United States, 172 U.S. 434 (1899).
indictment may use the language of the statute, but that language
supplemented with enough detail to appraise the accused of the
offense with which he is charged." United States v. Conlon,
150, 155 (D.C. Cir. 1980), cert. denied, 454 U.S. 1149