Fifth Amendment/Jury Instructions – A trial court may not cure a defective indictment that fails to allege a crime through jury instructions that alters the language of the offense as charged to create a different offense.
The defendant was charged in a legally defective indictment which alleged that he attempted to commit aggravated identity theft, which is not a federal crime under 18 U.S.C. § 1028A. Defense counsel did not file a pretrial motion challenging the indictment under Rule 12(b(3) of the Federal Rules of Criminal Procedure, and instead moved for acquittal on the aggravated identity theft charges at trial.
The district court denied the motion for acquittal, holding that the defense waived the issue by failing to file a pretrial motion, then issued jury instructions that deleted the language regarding attempt. The jury found the defendant guilty based on the instructions for the completed crime.
On appeal, the Court vacated the defendant’s convictions on aggravated identity theft. First, the Court considered whether the defective indictment deprived the district court of jurisdiction, citing Supreme Court decisions and how other circuits define jurisdictional defects. The Court sided with the Fifth and Tenth Circuits, which broadly hold that “defects in an indictment–of whatever kind–are not jurisdictional” and “do not deprive a court of its power to adjudicate a case.” Here, since the indictment’s failure to allege a crime was non-jurisdictional, it was also waivable, and the defendant waived the argument by failing to file a pretrial motion.
However, the Court concluded that the district court’s remedy of removing all references to “attempts” in the jury instructions violated the defendant’s Fifth Amendment right “to be tried only on charges issued by a grand jury.” The Court explained that the judge’s variance from the indictment was impermissible because it “neither corrected an error of form nor narrowed the indictment.”
Appeal from the Eastern District of Wisconsin
Opinion by Sykes, joined by Flaum and St. Eve
Click here to read the opinion.