Elements of the Offense
The Federal Rules of Criminal Procedure require that an
indictment "be a
plain, concise and definite written statement of the essential
the offense charged." An indictment need only contain those facts
of the alleged offense necessary to inform the accused of the
charge so that he
or she may prepare a defense and invoke the Double Jeopardy Clause
appropriate. If an essential element of the offense is omitted
indictment, it cannot, consistent with the principle underlying the
Amendment requirement that prosecution for an infamous crime be
instituted by a
grand jury, be supplied by the prosecutor or by the courts. As
Russell v. United States, 369 U.S. 749, 770 (1962):|
To allow the prosecution, or the court, to make a
as to what was in the minds of the grand jury at the time they
indictment would deprive the defendant of a basic protection which
of the intervention of a grand jury was designed to secure. For a
could then be convicted on the basis of facts not found by, and
perhaps not even
presented to, the grand jury which indicted him.
In United States v. Outler, 659 F.2d 1306 (5th Cir.
1981), it was
fatal to an indictment which charged a physician with prescribing
violation of 21 U.S.C. § 841 (a), not to allege that the
legitimate medical reasons as an element of the offense. The court
that this factor was not a statutory element of the violation, that
was clearly aware of the nature of the charges, and that the grand
likely considered the legitimacy issue in returning the indictment.
the Fifth Amendment did not allow the Court to speculate whether
the grand jury
had considered this omitted element in determining whether there
cause for the indictment. See United States v.
Zangger, 848 F.2d
923, 925 (8th Cir. 1988)(indictment charging defendant with mailing
himself masturbating to undercover postal inspector insufficient
to allege essential element of offense that tape was obscene).