United States v. Du Bo
99 Daily Journal DAR 8147, 186 F.3d 1177, 99 Cal. Daily Op. Serv. 6378 (1999)
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Rule of Law:
When a defendant makes a timely pre-trial challenge, an indictment that completely fails to state an essential element of the charged offense contains a fatal defect that is not subject to harmless error analysis and requires reversal of the conviction.
Facts:
- Du Bo was alleged to have committed acts constituting interference with commerce by extortion, a violation of the Hobbs Act.
- A federal grand jury returned an indictment against Du Bo for this conduct.
- The indictment charged that Du Bo acted "unlawfully" and used "wrongful" force to interfere with commerce.
- The indictment did not allege that Du Bo acted with the requisite criminal intent, or mens rea, which for a Hobbs Act violation is "knowingly or willingly."
Procedural Posture:
- A grand jury indicted Du Bo for interference with commerce by extortion in violation of 18 U.S.C. § 1851 (the Hobbs Act) in the United States District Court.
- More than two months before trial, Du Bo filed a motion to dismiss the indictment, arguing it was defective for failing to allege the required criminal intent (mens rea).
- The district court denied Du Bo's motion.
- After a trial, Du Bo was convicted of the charged offense.
- Du Bo (appellant) appealed his conviction to the United States Court of Appeals for the Ninth Circuit, with the United States as the appellee.
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Issue:
Does the complete omission of an essential element of a crime, specifically the mens rea, from a federal indictment constitute a fatal defect requiring dismissal when challenged by the defendant before trial?
Opinions:
Majority - Beezer, J.
Yes, the complete omission of an essential element from an indictment is a fatal defect requiring reversal. Criminal intent is an implied and necessary element for a Hobbs Act conviction that must be included in an indictment. The terms "unlawfully" and "wrongful" are insufficient to allege the required mens rea of acting "knowingly or willingly." The Fifth Amendment's Grand Jury Clause requires that a defendant be convicted only on charges considered and found by a grand jury. When an essential element is missing from the indictment, a court can only guess whether the grand jury found probable cause for that element, which would deprive the defendant of this fundamental constitutional protection. Such a substantive failure is not a mere technicality and cannot be cured by jury instructions or subjected to harmless error review when the defendant raises a timely challenge.
Analysis:
This decision solidifies the principle that an indictment's sufficiency is a cornerstone of a defendant's Fifth Amendment rights. It creates a bright-line rule that distinguishes a complete failure to allege an element from a mere technical defect, treating the former as a structural error requiring automatic reversal if challenged pre-trial. This holding reinforces the grand jury's role as a check on prosecutorial power by ensuring it considers all essential elements before issuing an indictment, thereby preventing a defendant from being tried on a charge that the grand jury never made.
