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219

Citation of the Statute Violated

Fed. R. Crim. P. 7(c)(1), provides:

The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.

The above provision is limited by paragraph 7(c)(3) which provides:

Harmless Error. Error in the citation 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.

At the time the Federal Rules of Criminal Procedure were adopted, current law did not regard citation to statutes or regulations as part of 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. Hutcheson, 312 U.S. 219 (1941). The Court stated in Hutcheson that the designation of the statute is immaterial. Hutcheson, 31 2 U.S. at 229. "He [the prosecutor] may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute." Id. Fed. R. Crim. P. 7(c)(1), is for the benefit 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 will not warrant reversal where the language of an indictment makes the charge clear and the defendant can show no prejudice. United States v. Fekri, 650 F.2d 1044 (9th Cir. 1981).

    The citation of the wrong statute in an indictment is not grounds for reversal of a conviction unless the defendant was misled to his prejudice. . . . [There will be] no prejudice . . . when the elements of the two crimes are the same and the defendant was adequately appraised of the charges.

United States v. Hall, 979 F.2d 320, 323 (3d Cir. 1992).

Moreover, the fact that the citation is in the heading rather than in the body of the indictment, unless it misleads the defendant to his prejudice, will not affect the indictment. See Huizar v. United States, 339 F.2d 173 (5th Cir. 1964), cert. denied, 380 U.S. 959 (1965). Nor did the erroneous citation of a State statute in setting forth a predicate RICO act prove fatal where the reference to the State offense served to identify generally the kind of activity made illegal by the Federal statute. See United States v. Welch, 656 F.2d 1039, 1058 (5th Cir.), cert. denied, 456 U.S. 915 (1982).

Citation of the statute charged should be distinguished from a reference to a statute that is an element of the offense. Here the reference must be sufficient to apprise the defendant of its identity. Thus, where the indictment charges that the defendant unlawfully imported diamonds "contrary to law," the words "contrary to law" refer to legal provisions outside the offense of smuggling that is being charged, and the law must be identified to determine the basis for the prosecution. See Keck v. United States, 172 U.S. 434 (1899). "[T]he indictment may use the language of the statute, but that language must be supplemented with enough detail to appraise the accused of the particular offense with which he is charged." United States v. Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980), cert. denied, 454 U.S. 1149 (1982).