Charging in the Language of the Statute
Although an indictment that tracts the statutory language
offense is usually sufficient, mere recitation of statutory
language will only
save an indictment if all elements are subsumed in the language.
States v. Carll, 105 U.S. 611 (1881), the indictment followed
of the statute but was found insufficient for failure to allege
defendant knew that the instruments he uttered were forged or
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
any uncertainty or ambiguity, set forth all the elements necessary
the offense intended to be punished.
Id. at 612. "An indictment that tracks the words of the
violated is generally sufficient, but implied, necessary elements,
in the statutory language, must be included. . . ." United
Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995), cert.
denied, 116 S.Ct
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
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
See also United States v. Simmons, 96 U.S. 360
In Russell v. United States, 369 U.S. 749 (1962), the
charged defendants with contempt of Congress under 2 U.S.C. §
192 in that
they failed and refused to answer questions "pertinent to the
inquiry" before a committee of Congress. The defendants challenged
sufficiency of the inquiry. In holding the indictments
insufficient, the Court
stated that "[w]here guilt depends so crucially upon such a
identification of fact, our cases have uniformly held that an
indictment must do
more than simply repeat the language of the criminal statute."
Russell, at 764.
The issue in Russell was raised by a motion to dismiss.
viewed the defect in the indictment as being one of specificity
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,
held that because of the omission of the subject of the inquiry,
wholly failed to inform the defendants of the nature of the
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."
Russell, at 770; United States v. Rosi, 27 F.3d 409,
414 (9th Cir.
In Hamling v. United States, 418 U.S. 87 (1974), the
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
define obscenity. The court distinguished Russell, holding
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
in a case in which the defendant was charged with involuntary
18 U.S.C. § 1112. Relevant case law had held that gross
actual knowledge of potential harm were additional elements of the
absence of such allegations in the indictment was not cured by the
proof at trial of these elements or their inclusion in the court's
to the jury. See United States v. Opsta, 659 F.2d
848 (8th Cir.
1981). Cf., United States v. Daniels, 973 F.2d 272,
Cir. 1992), cert. denied, 506 S.Ct. 1086 (1993)(citation to
insufficient to cure failure of indictment to allege each element
of crime when
indictment neither tracked statutory language nor cited actual
because omission opens risk of grand jury failure to consider and
elements of crime). United States v. Rojo, 727 F.2d 1415,
(9th Cir. 1983) (indictment for theft of public property
insufficient when it
contained only general citation to statute without any reference to
committed or to specific provisions of statute). Compare
v. Yefsky, 994 F.2d 885, 893-94 (1st Cir. 1993) (indictment
statutory language for mail fraud conspiracy insufficient because
allege plan to defraud as required by case law) with United
Cochran, 17 F.3d 56, 61 (3d Cir.) cert. denied, 115
(1994)(indictment charging possession and transportation of child
sufficient because tracked statutory language of 18 U.S.C. §
2252, and met
scienter requirement on its face with term "knowingly"); United
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
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
attempts to execute," but providing statutory citations,
need not allege elements in precise statutory terms).