United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge
is charged with involuntary manslaughter in violation of 18
U.S.C. § 1112 in connection with the death of her child
who is alleged to have suffered injuries in utero
which resulted in the child's death shortly after birth.
She has moved to dismiss the indictment pursuant to Fed. R.
Crim. P. 12(b)(3)(B)(v) on the basis that the indictment
fails to state an offense.
indictment is subject to attack if it fails to contain
"a plain, concise, and definite written statement of the
essential facts constituting the offense charge." Fed.
R. Crim. P. 7(c)(1). "In order to be valid, an
indictment must allege that the defendant performed acts
which, if proven, constituted a violation of the law that he
or she is charged with violating." United States v.
Hedaithy, 392 F.3d 580, 589 (3rd Cir. 2004) (quoting
United States v. Zauber, 857 F.2d 137, 144 (3d Cir.1988)
(quoting United States v. Gimbel, 830 F.2d 621, 624
crime of involuntary manslaughter is the "unlawful
killing of a human being" 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." 18 U.S.C. § 1112. The indictment alleges
that defendant violated the statute in the commission of a
lawful act - "by ingesting prescribed and
over-the-counter medicines"- which resulted in the death
of "Baby Boy Flute."
first issue to be addressed is whether conduct toward a baby
in utero is actionable as a federal criminal
offense. In other words, the Court must determine whether
Baby Boy Flute is within the class of victims Congress
intended to protect under 18 U.S.C. § 1112.
are no federal common law crimes - this court has
jurisdiction only for crimes enacted by Congress. United
States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812);
In re Winship. 397 U.S. 358, 380 n. 9, 90 S.Ct.
1068, 1081 n. 9, 25 L.Ed.2d 368 (1970); James v. United
States. 366 U.S. 213, 225, 81 S.Ct. 1052, 1058, 6
L.Ed.2d 246 (1961); Central Bank of Denver. N.A. v. First
Interstate Bank of Denver. N.A.. 511 U.S. 164, 181, 114
S.Ct. 1439, 1450, 128 L.Ed.2d 119 (1994). Nonetheless,
"where a federal criminal statute uses a common-law term
of established meaning without otherwise defining it, the
general practice is to give that term its common-law
meaning." United States v. Harlan. 815 F.3d
1100, 1106 (8th Cir. 2016) (quotine United States v.
Turlev. 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d430
term "human being" in the federal murder and
manslaughter statutes is one such term that has been the
subject of quests to determine its meaning. Historically,
because of the lack of sophisticated medical knowledge, the
common law recognized the so-called "born alive"
rule, which allowed the prosecution of one who killed an
unborn child only if the child was born alive after the
assault and later died of the fetal injuries. See
Clarke Forsythe, Homicide of the Unborn Child: The Born Alive
Rule and Other Legal Anachronisms, 21 Val. U. L. Rev. 563
United States Court of Appeals for the Ninth Circuit observed
that when the federal murder statute, 18 U.S.C. § 1111,
was enacted in 1908 as part of the Major Crimes Act, "it
was well-established in common law that murder was the
killing of one human being by another, and that an infant
born alive that later died as a result of fetal injuries was
a human being." United States v. Spencer. 839
F.2d 1341, 1343 (9th Cir. 1988). The Fourth Circuit held in
United States v. Jumper, 3 Fed.Appx. 141 (4th Cir.
2001), that a woman who attempted a home birth could be
convicted of involuntary manslaughter based upon evidence
that the baby was born alive and stopped breathing shortly
after birth because the jury could reasonably have concluded
that "attempting a home birth without any assistance,
and foregoing medical care even after the baby ceased
breathing, " amounted to acting "without due
caution and circumspection, " as defined by 18 U.S.C.
forth above, the federal criminal murder and manslaughter
statutes have been applied to protect babies in
utero who are born alive. Baby Boy Flute is within the
class of victims Congress historically intended to protect
under 18 U.S.C. § 1112.
2002, Congress enacted the Born-Alive Infants Protection Act,
Pub. L. 107-207, § 2(a). Pursuant to that Act, in
"determining the meaning of any Act of Congress, "
the term "human being" includes "every infant
member of the species homo sapiens who is born alive at any
stage of development." 1 U.S.C. § 8(a). The Act was
intended to provide certain protections to infants born in
connection with partial birth abortions. See
H.R.Rep. No. 107-186, at 3, 2002 U.S.C.CA.N. 620, 621 -22
(2001). "The statute recognizes unborn children as a
class of victims not previously protected under federal law
and criminalizes the killing or injuring of unborn children
during the commission of certain federal offenses."
United States v. Montgomery, 635 F.3d 1074, 1086
(8th Cir. 2011).
appears that Congress, in its political attempts to legislate
away the rights recognized by the United States Supreme Court
in Roe v. Wade. 410 U.S. 112, 93 S.Ct. 705, 35
L.Ed.2d 147 (1973) and Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120
L.Ed.2d 674 (1992) and their progeny, have replaced the
common law "born alive" rule as it applies to the
federal criminal statutes and expanded the class of victims
protected under the federal criminal law. Even if conduct
toward a baby in utero is actionable as the federal
criminal offense of involuntary manslaughter, the indictment
in this case is subject to dismissal if this defendant is not
within the class of defendants Congress intended to punish.
2004, Congress enacted the Unborn Victims of Violence Act,
also known as Laci and Conner's Law, Pub. L. 108-212. The
Act provides that whoever engages in conduct that violates
any of over 60 other federal criminal acts "and thereby
causes the death of, or bodily injury ... to, a child, who is
in utero at the time the conduct takes place, is guilty of a
separate offense under this section." 18 U.S.C. §
1841(a)(1). The Act "recognizes unborn children as a
class of victims not previously protected under federal
law." United States v. Montgomery. 635 F.3d
1074, 1086 (8th Cir. 2011). Involuntary manslaughter under
§ 1112 is specifically listed as one such federal
offense for which an unborn child could not previously be
considered a victim. 18 U.S.C. § 1841(b)(1).
legislative history of the 2004 Act indicates that the House
Judiciary Committee urged the passage of the Act because
"there remains a gaping hole in federal law which would
allow an unborn child to be killed or injured during the
commission of a violent federal crime without any legal
consequence whatsoever... The Unborn Victims of Violence Act
was designed to address this current inadequacy in federal
law." Testimony of Representative Steve Chabot, July 8,
2003, 2003 WL 21526342. The Act was intended to abolish the
common law born alive rule at the federal level, H.R. REP.
108-420, 6, 2004 U.S.C.C.A.N. 533, 536.
clear that § 1841 was intended to confer federal
criminal jurisdiction over conduct towards victims
in utero who are not thereafter born alive, thus
extending the protections of the current federal criminal law
to another class of victims. Although §1841(a)(1)
creates a separate offense for certain acts resulting in
injury or death to an unborn child, the punishment for a
crime against an unborn child is tied to the punishment for
the underlying offense conduct. Thus, if a defendant commits
manslaughter against an unborn child, the defendant's
punishment would be the punishment set forth in 18 U.S.C.
§ 1112. The 2004 ...