UNITED STATES of America, Appellee, v. Robert KEITH, Appellant.
No. 79-1075.
United States Court of Appeals, Ninth Circuit.
Sept. 26, 1979.
605 F.2d 462
Michael L. Piccarreta, Asst. Federal Public Defender, Phoenix, Ariz., for appеllant.
Before MERRILL and HUG, Circuit Judges, and PORT*, Senior District Judge.
Appellant Robert Keith, a Navajo Indian, was indicted on the charge of involuntary manslaughter within the confines of the Navajo Indian Resеrvation, in violation of
Keith argues that his conviction should be reversed on the ground that the district court erred in denying the motion. We agree with his argument and reverse.
Keith was charged under
(a) Manslaughter is the unlawful killing of a human being without malice. It is оf two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
The indictment tracked the language of
Keith contends that two essential elements of the offense of involuntary manslaughter under
Keith is correct in his contention that the two elements he cites are essential for an involuntary manslaughter conviction under
The failure of the indictment to charge two essential elements could not be cured by the trial court by amendment or through jury instructions. The Supreme Court has stated: “The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Russell v. United States, 369 U.S. 749, 771, 82 S.Ct. 1038, 1051, 8 L.Ed.2d 240 (1962) (citing Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). To allow a prosecutor or сourt 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 that the grand jury was designed to sеcure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him. Russell, 369 U.S. at 770; Jeffers v. United States, 392 F.2d 749, 752-53 (9th Cir. 1968).
The indictment did not chаrge two essential elements. The grand jury may well have believed that
The Government raises a number of objections to Keith‘s argument, but none of them is convincing.
The Government contends that the indictment is sufficient because it tracks the language of
The Government appears to argue that Keith was not prejudiced by the language of the indictment because he did not request a bill of particulars. This argument is meritless. A bill of particulars сannot save an invalid indictment. Russell v. United States, 369 U.S. at 770.
The Government notes that vagueness may not be imputed to a statute if judicial explication makes a statute clear so that fair notice is affоrded. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979). The Government argues that,
Broncheau is distinguishable. In Broncheau, the court noted thаt the term “Indian,” which the appellant attacked as vague,
Keith‘s conviction for involuntary manslaughter is reversed.
MERRILL, Circuit Judge, dissenting:
I dissent.
The majority holds that the statutory language “without due caution or circumspection” must be construed to require gross negligence or the knowledge of such circumstances as would have made reasonably foreseeable to the defendant the peril to which his acts might subject others. Whether this is or is not the proper standard to apply in involuntary manslaughter is a question I do not reach. I assume, arguendo, that it is. It was the one adopted by the district court in instructing the jury as to the meaning of the statutory language.
I disagree with the majority in its conclusion that the imposition of this standard amounts to adding a new element to the crime of involuntary manslaughter, which element must be expressly stated in the indictment.
A distinction must be made between two different situations: (1) Where judicial or decisional gloss adds new elements to a crime;1 (2) Where the gloss does no more than define the meaning of an element set forth in the statute. In the former case the newly added elements must be included in an indictment. In the latter case no new element has been added. The element set forth in the statute which has been judicially defined takes on the meaning given tо it by the judicial definition. In this sense the statutory language has become a term of art. When it is used in an indictment it carries with it the judicial definition. This is the case here. Gross negligence and foresеeability of harm are not required in addition to a lack of due caution and circumspection. They constitute that lack. Absent gross negligence and foreseeability of harm there is no such lack, and the statutory element has not been established.
In such a cаse the jury must, of course, be instructed as to the meaning of the language used in the statute just as it must be instructed as to the meaning of any element as statutorily expressed. Here the trial jury was so instructed. Since the necessary elements for involuntary manslaughter were detailed in the indictment, we should also assume that the grand jury received appropriate instructions as tо the meaning of language used in the indictment, and that when it found a lack of due caution and circumspection the jurors understood what that language meant.
To require that an indictment nоt only contain the elements of a crime but also precisely set forth the definition judicially given to the statutory language could start an interminable definitional process and rendеr every indictment subject, after the fact, to objections now required to be made before the fact as to jury instructions. Here, it could be argued that gross negligence would in turn have tо be defined. If “wanton disregard” is used in defining it, it could be argued that the term also would have to be defined.
I would affirm.
HUG
CIRCUIT JUDGE