The Federal Rules of Criminal Procedure require that an indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." An indictment need only contain those facts and elements 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 when appropriate. If an essential element of the offense is omitted from the indictment, it cannot, consistent with the principle underlying the Fifth Amendment requirement that prosecution for an infamous crime be instituted by a grand jury, be supplied by the prosecutor or by the courts. As stated in Russell v. United States, 369 U.S. 749, 770 (1962):
To allow the prosecution, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant 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 drugs, in violation of 21 U.S.C. § 841 (a), not to allege that the prescriptions lacked legitimate medical reasons as an element of the offense. The court acknowledged that this factor was not a statutory element of the violation, that the defendant was clearly aware of the nature of the charges, and that the grand jurors had likely considered the legitimacy issue in returning the indictment. Nonetheless, the Fifth Amendment did not allow the Court to speculate whether the grand jury had considered this omitted element in determining whether there was probable cause for the indictment. See United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988)(indictment charging defendant with mailing videotape of himself masturbating to undercover postal inspector insufficient because failed to allege essential element of offense that tape was obscene).