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Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 8 - CHAPTER 117
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117.2 Use Or Carrying Of A Weapon Or Firearm: Miscellaneous Issues

    117.2.1 Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect


FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 8 - CHAPTER 117

    117.2.1    Federal Firearm Enhancement: Failure To Include Type Of Firearm In Indictment Is Jurisdictional Defect (18 USC 924(c))   

PRACTICE NOTE:  Under 18 USC 924(c) use of a firearm involving a crime of violence or drug trafficking is subject to various prison terms depending on the type of weapon used.  Hence, failure to include the type of firearm in an indictment under the statute is a jurisdictional defect that precludes harmless error analysis. (See  U.S. v. Tran (2nd Cir. 2000) 234 F3d 798, 809; see also United States v.Castillo (2000) 530 US 120 [120 SCt 2090; 147 LEd2d 94] [type of firearm used or carried in a 18 USC 924(c) violation is an element of the offense]; United States v. Spruill (4th Cir. 1997) 118 F3d 221, 227 ["It is well established . . . that failure to recite an essential element of the offense in the indictment is not amenable to harmless error review"]; United States v. Santeramo (2d Cir. 1995) 45 F3d 622, 624 [criminal indictment must (1) contain all of the elements of the offense so as to fairly inform the defendant of the charges against him, and (2) enable the defendant to plead double jeopardy in defense of future prosecutions for the same offense]

    See also FORECITE National™ 300.21.2 [Apprendi: Constitutional Rights Apply To Sentencing Decisions That Increase The Range Of Punishment].

    See also FORECITE National™ 300.2.1 [Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel].