Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: April 15, 2009
Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
A grand jury indicted John Graham on one count of first degree murder, 18 U.S.C. § 1153. The district court*fn1 dismissed the indictment because it failed to allege his Indian status. Months later, the district court dismissed an identical count in a later indictment. The government appeals. This court affirms.
In 2003, a grand jury charged:
On or about the 12th day of December, 1975, near Wanblee, in Indian Country, in the District of South Dakota, the defendants, Fritz Arlo Looking Cloud, an Indian, and John Graham, a/k/a John Boy Patton, willfully, deliberately, maliciously, and with premeditation and malice aforethought, did unlawfully kill and aid and abet the unlawful killing of Annie Mae Aquash, a/k/a Annie Mae Pictou, by shooting her with a firearm, in violation of 18 U.S.C. §§ 1111, 1153, and 2.
While the indictment alleged that Looking Cloud was Indian, it did not allege Indian status as to Graham or the victim. Graham made a pretrial motion to dismiss the indictment, which the court granted. The government appeals.
In 2008, a grand jury again indicted Graham on first degree murder. Count I and II of the indictment brought new charges; Count III, the same charge as the 2003 indictment, did not allege that Graham is Indian.*fn2 Graham moved to dismiss all charges. The court dismissed Count III, preserving Counts I and II for trial. The government appeals the interlocutory dismissal of Count III.
Jurisdiction being proper under 28 U.S.C. § 1291 and 18 U.S.C. § 3731, this court consolidated the government's appeals from the dismissals of both the 2003 indictment and Count III of the 2008 indictment.
This court reviews "de novo the district court's decision to grant [a] motion to dismiss the indictment." United States v. Keeney, 241 F.3d 1040, 1042 (8th Cir. 2001). The Fifth Amendment states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." U.S. Const. amend V. Generally, the words "presentment" and "indictment" are interchangeable under the Fifth Amendment. See Hale v. Henkel, 201 U.S. 43, 60-61 (1906).
"An indictment is sufficient if it contains 'all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to subsequent prosecution.'" United States v. Sohn, 567 F.3d 392, 394 (8th Cir. 2009), quoting United States v. Cavins, 543 F.3d 456, 458 (8th Cir. 2008).
The Indian Major Crimes Act, 18 U.S.C. § 1153, extends federal jurisdiction over specific offenses committed ...