Submitted: November 16, 2018
from United States District Court for the District of South
Dakota - Aberdeen
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
Shepherd, Circuit Judge.
the death of Samantha Flute's newborn baby due to
combined drug toxicity, the United States charged her with
one count of involuntary manslaughter committed within Indian
Country, in violation of 18 U.S.C. §§ 1112 and
1153. Flute filed a motion to dismiss the Indictment on the
grounds that the charged offense did not cover her or her
conduct, and the district court granted the motion. The
United States appeals. Having jurisdiction pursuant to 28
U.S.C. § 1291, we reverse.
August 19, 2016, Samantha Flute arrived at a Sisseton, South
Dakota hospital in full-term labor. She gave birth at 38
weeks gestation to a fully developed baby boy, Baby Boy
Flute. Baby Boy Flute was well developed, normal and intact,
with no obvious signs of trauma or injury, but died
approximately four hours after birth. At the time of
admission, Flute tested positive for cocaine and a number of
prescription and over-the-counter drugs. During efforts to
resuscitate Baby Boy Flute, Flute admitted that she had,
shortly prior to his birth, taken three times the daily dose
of Lorazepam, which had been prescribed to her during her
only prenatal medical visit less than one week before Baby
Boy Flute's birth; she had snorted hydrocodone, which she
believed to have been laced with cocaine based on the feeling
it gave her; and ingested cough medicine. Flute admitted that
she knew that ingesting these substances was against the best
interests of Baby Boy Flute, but that she did so because she
needed to get high. An autopsy confirmed that Baby Boy Flute
had no anatomical cause of death, but noted the presence of
several substances that had not been medically administered
to Baby Boy Flute while he was alive. The forensic
pathologist who performed the autopsy concluded that Baby Boy
Flute had died from combined drug toxicity due to the
substances Flute ingested while Baby Boy Flute was still in
government indicted Flute on one count of involuntary
manslaughter. The Indictment specifically charged the
Between on or about August 19, 2016 and August 20, 2016, in
Agency Village, in Indian country, in the District of South
Dakota, Samantha Flute, an Indian, unlawfully killed a human
being, Baby Boy Flute, without malice, in the commission of a
lawful act in an unlawful manner which might produce death.
Such act was committed in a grossly negligent manner, with
actual knowledge that her conduct was a threat to the life of
another and with actual knowledge that would reasonably
enable her to foresee the peril to which her act subjected
another, to wit: Samantha Flute did unlawfully kill Baby Boy
Flute by ingesting prescribed and over-the-counter medicines
in a grossly negligent manner, and did thereby commit the
crime of involuntary manslaughter, in violation of 18 U.S.C.
§§ 1153 and 1112.
1-2, Dist. Ct. Dkt. 2. Flute filed a motion to dismiss the
Indictment. She admitted that she gave birth to an alive Baby
Boy Flute, but argued that even if she had engaged in the
conduct alleged in the Indictment, the conduct did not
constitute the charged offense under federal law because
§ 1112 was not intended to apply to a mother's
conduct with respect to her unborn child. She also asserted
that she could not be charged under § 1112 because an
unborn child is not a "human being" for the
purposes of that statute. Flute also asserted that the
involuntary manslaughter statute was unconstitutionally vague
as applied to her.
district court granted the motion to dismiss the Indictment,
holding that the involuntary manslaughter statute did not
apply to Flute because she was not within the class of
defendants under the statute. In reaching this conclusion,
the district court acknowledged that "Baby Boy Flute is
within the class of victims Congress historically intended to
protect under 18 U.S.C. § 1112." It nevertheless
imported language from 18 U.S.C. § 1841 that bars
"prosecution . . . of any woman with respect to her
unborn child" to find that § 1112 did not reach
Flute. The district court read this provision as
"creat[ing] a class of persons who cannot be prosecuted
under the federal criminal statutes for injury caused to an
unborn child," and ultimately concluded that the
provision was "a clear statement from Congress that the
federal assault and murder statutes cannot be applied to the
pregnant woman herself for any actions she takes with respect
to her unborn child." United States v. Flute,
No. 1:17-CR-10017-CBK, 2017 WL 5495170, at *3 (D.S.D. Nov.
14, 2017). The district court thus determined that, but for
the § 1841 exception for mothers, Flute would have been
an appropriate defendant. The district court did not address
Flute's as-applied constitutional challenge.
appeal, the government asserts that the district court
erroneously imported the § 1841 exception in determining
that the federal involuntary manslaughter statute did not
extend to the class of defendants of which Flute was a
part-mothers who inflicted injury upon their unborn while the
child was still in utero, leading to the child's death
after birth. Rather, the government contends that § 1841
is a separate, unrelated, and uncharged statute without
relevance to the application of the manslaughter statute to
actions of a mother against her unborn child. Flute responds
that the district court correctly applied § 1841 and
also asserts that the Indictment should have been dismissed
because Baby Boy Flute was not a human being when the
injuries were sustained in utero and thus § 1112 does
not criminalize Flute's conduct.
review de novo a district court's dismissal of an
indictment for failure to state an offense." United
States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012).
"An indictment is legally sufficient on its face if it
contains all of the essential elements of the offense
charged, fairly informs the defendant of the charges against
which [s]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.
Fleming 8 F.3d 1264, 1265 (8th Cir. 1993). In
determining whether a charged crime encompasses the conduct
alleged, the court engages in statutory interpretation; the
"starting point in interpreting a statute is always the
language of the statute itself." United States v.
Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013) (quoting
United States v. S.A., 129 F.3d 995, 998 (8th Cir.
was indicted for involuntary manslaughter under 18 U.S.C.
§ 1112, which criminalizes "the unlawful killing of
a human being without malice . . . in the commission . . .
without due caution and circumspection, of a lawful act which
might produce death" and under § 1153, which
provides federal jurisdiction over crimes in Indian Country.
The dispositive questions on appeal are whether Baby Boy
Flute is within the class of victims protected by § 1112
and whether Flute is within the class of defendants covered
by § 1112.
to the first question, we assess whether Baby Boy Flute, who
sustained injuries in utero that caused his death after
birth, falls within the class of victims protected by §
1112. Flute asserts that Baby Boy Flute does not because he
was not a human being at the time the conduct which
ultimately caused death occurred. We disagree with this
contention and agree with the ...