                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3515
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of South Dakota.
Steve Buchanan,                       *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: June 11, 2009
                                 Filed: July 27, 2009
                                  ___________

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

        A jury convicted Steve Buchanan of one count of attempting to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Prior to
trial, the district court1 denied Buchanan’s motion to suppress certain evidence.
Buchanan appeals his conviction, arguing that the district court erred in denying his
motion to suppress because the affidavit supporting the warrant failed to establish the

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota , deceased , June 11, 2009,adopting the Report and Recommendation
of the Honorable Veronica L. Duffy, United States Magistrate Judge for the District
of South Dakota.
reliability or credibility of the two informants and misrepresented the statements
Buchanan had made in a recorded telephone call. Buchanan also claims that the
district court’s jury instructions constructively amended the Indictment by omitting
the word “attempt” from an instruction, that the Indictment failed to state an offense
because it did not specifically cite the attempt statute, and that there was an
impermissible variance between the Indictment and the proof at trial. We affirm.

I.    Background

       On February 13, 2006, the South Dakota Division of Criminal Investigation
received an unsolicited phone call concerning alleged drug activity in Custer, South
Dakota. The call was referred to Agent Lyle Tolsma who did not know and had not
had any previous contact with the caller. The caller, whom Tolsma deemed a “source
of information” (“SOI”), identified herself by first name, indicated that she had been
to Buchanan’s house three days earlier, and alleged that Buchanan had offered her
methamphetamine. The SOI also alleged a second person—a woman Tolsma later
identified as a confidential informant (“CI”)—was involved in manufacturing
methamphetamine with Buchanan.

      During the call, the SOI informed Tolsma she was familiar with the appearance
of methamphetamine and had been around it several times. The SOI described seeing
approximately half of a gram of crystal methamphetamine on an aluminum smoking
apparatus at Buchanan’s house and stated that she was forced to leave the house
because of the strong chemical odor. Tolsma testified that methamphetamine
manufacturing produces a noticeable smell which, in some cases, can be detected a
block away.

     Around noon on February 14, 2006, Tolsma, joined by Agent Steve Ardis,
conducted a “knock and talk” at Buchanan’s home to investigate the SOI’s allegations.
Buchanan refused to let the agents into his house, claiming that it was messy.

                                         -2-
Buchanan made no incriminating statements, and Tolsma testified that he smelled no
odor indicative of methamphetamine manufacturing.

       After speaking with Buchanan, Agents Tolsma and Ardis went to the CI’s
house to conduct another knock and talk. They told the CI that they were
investigating allegations that she was involved in manufacturing methamphetamine
with Buchanan. The CI confirmed that Buchanan was making methamphetamine and
that, since October 2005, she had provided him approximately fifty packets of
pseudoephedrine, a drug used to produce methamphetamine. The CI indicated that
she had received methamphetamine from Buchanan in exchange for the
pseudoephedrine. She also stated that she had smoked methamphetamine with
Buchanan three days prior and that she had last seen Buchanan when she delivered
pseudoephedrine to him the previous night. The CI also itemized objects Buchanan
was using to produce the drug in his home.

      Tolsma and Ardis told the CI that if she cooperated in their investigation they
would speak to the prosecutor and that her cooperation would “go a long ways”
toward helping her. The CI then agreed to conduct a recorded phone call with
Buchanan, which they conducted that same day.

       During the recorded phone conversation, Buchanan cautioned the CI of the
agents’ visit to his house and commented that state investigators were “probably
listening in.” Buchanan and the CI then engaged in a discussion of who might have
informed law enforcement that he was manufacturing methamphetamine. Later in the
conversation, Buchanan stated, “[T]here’s a bunch of stupid [expletive] people around
that you know, they get in trouble and then they try and get us in trouble . . . . so hell,
I’m not doing anything wrong.” The CI asked Buchanan, “Do you think you are ok?”
Buchanan replied, “Yeah, yeah, yeah, like I said you know, hey. It is scary but like
I said, I ain’t done nothing so I ain’t worrying about it but I do have to clean up my
garbage cause if they come into my house and bunch of people like that . . . .”

                                           -3-
        Buchanan told the CI that he had refused to let the agents into his house and
commented, “I gotta clean up my you know, key ends, and garbage and stuff I got
laying all over my house and stuff you know and make it look a little more presentable
in case somebody comes in. I’d hate to, you know.” At one point, Buchanan and the
CI engaged in an indirect discussion about the whereabouts of an unnamed item. The
CI asked, “[W]ell what about me?” Buchanan replied, “Don’t worry about that, it’s
gone.” He later stated, “Yeah, it’s gone. You know what I mean, you can’t piss
around and stuff so . . . I imagine they are probably trying to get a warrant and all this
[expletive] right now so . . . .” Later the CI asked directly, “And where did you put
it?” Buchanan replied “I haven’t you know, time to get rid . . . .” The CI interjected,
“I know, but where?” Buchanan replied, “It ain’t at your place so I don’t
know . . . .”

         Approximately a half hour after the call, law-enforcement agents, including
Agent Tolsma, entered Buchanan’s house and secured the residence to ensure no
evidence was destroyed or removed. Tolsma then prepared an application and
affidavit in support of a search warrant and read them over the phone to a state
magistrate. Tolsma detailed the information the SOI had conveyed, but did not tell
the state magistrate that the SOI had not given her full name, that he did not know her,
or that he had not had any previous contact with her. While providing details of his
conversation with the CI, Tolsma failed to state that he had no previous connection
to the CI. Additionally, Tolsma indicated that he had visited Buchanan, but did not
state that he had been physically present both inside and outside Buchanan’s house
without smelling a methamphetamine odor. Tolsma characterized Buchanan’s
statements in the recorded phone call as follows: “Buchanan advised the CI that he .
. . is currently in the process of cleaning out his residence, referring to the clandestine
equipment and chemicals.” (emphasis added). Buchanan, however, had never
directly referenced the “clandestine equipment” or “chemicals” in the recorded call.




                                           -4-
      Based on Tolsma’s application and affidavit, the state magistrate granted a
search warrant, and a subsequent search revealed many incriminating items.
Buchanan was then indicted for attempting to manufacture methamphetamine. The
Indictment read:

      On or about February, 2006, at Custer, in the District of South Dakota,
      the defendant, Steve Buchanan, did knowingly and intentionally attempt
      to manufacture five grams or more of actual methamphetamine, a
      Schedule II controlled substance, all in violation of 21 U.S.C.
      §§ 841(a)(1) and 841(b)(1)(B).

The Indictment, however, did not include a statutory reference to 21 U.S.C. § 846,
which criminalizes the attempt to manufacture a controlled substance. See 21 U.S.C.
§ 846.

       Prior to trial, Buchanan filed a motion to suppress the evidence obtained during
the search. A magistrate judge held a Franks hearing to determine the validity of the
search warrant and issued a report and recommendation that the district court deny
Buchanan’s motion. See Franks v. Delaware, 438 U.S. 154 (1978). The district court
adopted the report and recommendation and denied Buchanan’s motion to suppress.

        At trial, the district court’s preliminary jury instructions informed the jury that
Buchanan was charged “with the crime of attempting to manufacture
[methamphetamine].” The final jury instructions repeated that charge in instructions
five and eight. In instruction six, however, the district court stated that “the
indictment charges the defendant with manufacturing a controlled substance.”
(emphasis added). Instruction six did not include the word “attempt” but continued
to describe § 846 and told jurors that § 846 “provides that ‘any person who attempts
. . . to commit any offense defined in this subchapter [which includes 21 U.S.C.
§ 841(a)(1)] shall be subject to the same penalties as those prescribed for the
offense.’” (quoting 21 U.S.C. § 846). The court also instructed the jury as to the

                                           -5-
elements of an attempt-to-manufacture charge and explained the workings of those
elements in instruction seven.

      While the Indictment alleged a conspiracy “[o]n or about February 2006,” the
Government introduced evidence dating back to the spring of 2005 and established
that Buchanan had expressed interest in learning to manufacture methamphetamine
and had sought instruction from books and friends. Buchanan did not object to the
introduction of this evidence. At the close of evidence, however, he made a Rule 29
motion for a judgment of acquittal, arguing that he had been prejudiced by an
impermissible variance between the indictment and the facts established at trial. See
Fed. R. Crim. P. 29. The district court denied Buchanan’s motion.

      Ultimately, the jury convicted Buchanan of one count of attempting to
manufacture methamphetamine in violation of § 841. The district court sentenced him
to eighty months’ imprisonment and four years’ supervised release. This timely
appeal followed.

II.   Motion to Suppress

      Buchanan argues that the district court erred by failing to grant his motion to
suppress. He claims that the SOI’s and CI’s allegations were hearsay and lacked
corroboration, thus resulting in a lack of probable cause sufficient to support the
issuance of a search warrant. He also argues that Tolsma recklessly misrepresented
the nature of Buchanan’s statements in his affidavit and omitted certain facts that
demonstrated the absence of probable cause.

      In reviewing the denial of a motion to suppress, “[w]e review the district court’s
factual findings for clear error and its legal determinations de novo.” United States
v. Lucas, 499 F.3d 769, 775 (8th Cir. 2007) (en banc), cert. denied, 128 S. Ct. 1702
(2008). Our task is “to ensure that the evidence as a whole provides a substantial basis

                                          -6-
for finding probable cause for the issuance of the warrant.” United States v. Schmitz,
181 F.3d 981, 985 (8th Cir. 1999) (quotation omitted). To successfully challenge
probable cause and the validity of a warrant affidavit under Franks, 438 U.S. 154, a
defendant must show by preponderant evidence that: (1) the affiant included in the
affidavit “a false statement knowingly and intentionally, or with reckless disregard for
the truth,” and (2) “the affidavit’s remaining content [was] insufficient to establish
probable cause.” United States v. Humphreys, 982 F.2d 254, 258 n.2 (8th Cir. 1992).
“The same analysis applies to omissions of fact” in an affidavit. Id. The defendant
must show that: (1) the affiant omitted facts “with the intent to make, or in reckless
disregard of whether they thereby make, the affidavit misleading,” and (2) “the
affidavit, if supplemented by the omitted information, could not support a finding of
probable cause.” Id.; see also Franks, 438 U.S. at 171–72.

      A.     Probable Cause

       Buchanan first claims that the CI and SOI did not provide sufficiently credible
or reliable information to establish probable cause. Probable cause to search exists if
“there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). In evaluating probable
cause, a judicial officer reviewing an application for a search warrant does not use a
hypertechnical approach.              Id.     Rather, he or she employs a
totality-of-the-circumstances analysis and makes a practical decision based on such
factors as the veracity of the affidavit and the basis of knowledge of any person
supplying hearsay information. Id.; see also United States v. Williams, 10 F.3d 590,
593 (8th Cir. 1993) (“The core question in assessing probable cause based upon
information supplied by an informant is whether the information is reliable.”).

      When reviewing a probable cause finding, the duty of this court is simply to
ensure that the judicial officer that authorized the search had a “substantial basis for
concluding that probable cause existed,” Gates, 462 U.S. at 238–39 (quotation and

                                          -7-
alterations omitted), and we “must accord substantial deference to the finding of an
issuing judicial officer.” Williams, 10 F.3d at 593 (citing Gates, 462 U.S. at 236).

       Contrary to Buchanan’s claim, we believe the information from the CI and SOI
was sufficiently reliable to establish probable cause. In determining whether
information is reliable, we have set forth various factors to consider. In United States
v. Jackson, 898 F.2d 79, 81 (8th Cir. 1990), we noted that there are indicia of
reliability in “the richness and detail of a first hand observation.” We have also
recognized that “[s]tatements against the penal interest of an informant typically carry
considerable weight” in establishing reliability. United States v. Tyler, 238 F.3d
1036, 1039 (8th Cir. 2001) (quotation omitted). The circumstances of personal
questioning may also enhance reliability and credibility. See United States v.
Robertson, 39 F.3d 891, 893 (8th Cir. 1994) (stating the reliability of a tip is enhanced
when an agent meets personally with the informant to assess his credibility).

       An informant may also be considered reliable if the information he or she
supplies “is at least partially corroborated” by other sources. Humphreys, 982 F.2d
at 259; see also Williams, 10 F.3d at 593 (“If information from an informant is shown
to be reliable because of independent corroboration, then it is a permissible inference
that the informant is reliable and that therefore other information that the informant
provides, though uncorroborated, is also reliable.”); cf. United States v. Wells, 223
F.3d 835, 839–40 (8th Cir. 2000) (holding that without “suitable corroboration,”
information from a single anonymous caller was insufficient to be reliable and
establish probable cause). Probable cause can be established when information from
one informant is consistent with that of a second, independent informant. See, e.g.,
United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (holding that an
informant’s information was corroborated and reliable when a second informant
supplemented the information with “specific, consistent details”); see also United
States v. Reivich, 793 F.2d 957, 960 (8th Cir. 1986) (discouraging the technical
dissection of tips for corroboration and noting the enhanced reliability of

                                          -8-
independently consistent stories). “Even the corroboration of minor, innocent details
can suffice to establish probable cause.” Tyler, 238 F.3d at 1039 (quotation and
citation omitted).

      Here, as the district court noted, the statements provided by both the CI and the
SOI were based on their firsthand observations and knowledge rather than rumor or
innuendo, see Jackson, 898 F.2d at 81, and the CI provided information contrary to
her own penal interest. See Tyler, 238 F.3d at 1039. Also, Agent Tolsma spoke with
the CI directly and was able to personally assess her credibility. See Robertson, 39
F.3d at 893.

      Finally, the information the SOI provided to Tolsma was corroborated by the
information the CI provided. Like the specific and consistent details of the second
informant that reciprocally corroborated the first informant in Fulgham, the CI in this
case gave specific details that were consistent with the SOI’s allegations. See
Fulgham, 143 F.3d at 401.           The SOI alleged that Buchanan possessed
methamphetamine and indicated that there was a strong chemical odor at his house.
The CI gave consistent details that indicated Buchanan had been manufacturing
methamphetamine at his home and itemized other drug-production paraphernalia she
had seen in his house. The SOI also alleged that the CI was involved in
manufacturing methamphetamine with Buchanan, and the CI admitted that she had
provided Buchanan with pseudoephedrine and was involved in Buchanan’s
manufacturing.

       Buchanan argues that the reliability of the informants based on reciprocal
corroboration fails because it does not meet an exaggerated level of specific
verification, and he points to certain, specific allegations that were not plainly
corroborated. We have addressed specific, technical contentions like this before. In
Reivich we stated, “Such emphases typify the ‘excessively technical dissection of
informants’ tips’ and the ‘judging [of] bits and pieces of information in isolation

                                         -9-
against . . . artificial standards’ against which the Supreme Court cautioned in Gates
and Upton.” Reivich, 793 F.2d at 960 (quoting Upton v. Massachusetts, 466 U.S.
727, 732 (1984)). We conclude that because the information the CI and the SOI
provided was sufficiently corroborative, it was therefore reliable and sufficient to
establish probable cause.

      B.     Misstatements and Material Omissions in the Affidavit.

       Buchanan also claims that the district court erred in denying his suppression
motion because Tolsma recklessly misrepresented the nature of Buchanan’s
statements in Tolsma’s warrant application and, thus, there was no basis for probable
cause. An affidavit in support of a warrant must contain statements that are truthful.
See Franks, 438 U.S. at 164–165. This, however, does not require that “every fact
recited in the warrant affidavit is necessarily correct.” Id. at 165. “[P]robable cause
may be founded . . . upon information within the affiant’s own knowledge that
sometimes must be garnered hastily.” Id. Therefore, the affidavit must be “‘truthful’
in the sense that the information put forth is believed or appropriately accepted by the
affiant as true.” Id.; see also Schmitz, 181 F.3d at 984, 986–87 (holding that
inaccuracies of an affiant’s testimony regarding the details of an incident did not
undermine probable cause where the affiant reasonably concluded that she had
observed a crime in progress). The test is “whether, viewing all the evidence, the
affiant must have entertained serious doubts about the truth [of his statements] or had
obvious reasons to doubt the accuracy of the information.” Schmitz, 181 F.3d at
986–87 (quotation omitted).

      Here, the district court found no evidence that Tolsma acted untruthfully or
recklessly in preparing his affidavit and application for a search warrant, and the
record demonstrates that the district court’s finding was not clearly erroneous. The
affidavit was written in haste and spoken over the phone. Thus, as the district court
recognized, “Any mistake Tolsma may have made in this regard would have been an

                                         -10-
understandable mistake, given the context of the conversation in which Mr.
Buchanan’s statement was made.” There is no indication in the record that Tolsma
was attempting to mislead the state magistrate nor that Tolsma had “serious doubts’
about his statements or had “obvious reason” to doubt the accuracy of what he was
relaying.

        Buchanan argues, however, that the procedure used by the state magistrate to
assess probable cause in this case violated the Fourth Amendment. He claims the state
magistrate adopted Tolsma’s interpretation of Buchanan’s statement, and in so doing,
“put the cart before the horse” because he effectively allowed Tolsma to assess the
presence of probable cause. This is essentially a reiteration of Buchanan’s challenge
to the validity of the warrant affidavit. Our Fourth Amendment inquiry requires only
that the evidence as a whole provide a substantial basis for the finding of probable
cause. See Gates, 462 U.S. at 238. In light of the totality of the circumstances, there
were sufficient reliable facts from which the state magistrate could find that there was
a “fair probability that contraband or evidence of a crime [would] be found,” id. at
238, in Buchanan’s house and therefore the district court did not err in denying
Buchanan’s motion to suppress.

III.   Indictment Claims

       In addition to his motion-to-suppress claims, Buchanan raises several arguments
related to his Indictment. He claims that the district court’s jury instructions
constructively amended the Indictment to include a charge of actual manufacturing of
methamphetamine. He also claims there was an impermissible variance between the
Indictment date and the proof established at trial. Finally, he claims the Indictment
was insufficient because it did not cite the statute criminalizing attempt. We find
Buchanan’s claims unavailing.

       A.    Constructive Amendment

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        Buchanan first claims that the district court’s jury instructions constructively
amended the Indictment. “A constructive amendment occurs when the essential
elements of the offense as charged in the indictment are altered in such a manner that
. . . the jury is allowed to convict the defendant of an offense different from or in
addition to the offenses charged in the indictment.” United States v. Whirlwind
Soldier, 499 F.3d 862, 870 (8th Cir. 2007), cert. denied, 128 S. Ct. 1286 (2008);
United States v. Bryant, 349 F.3d 1093, 1097 (8th Cir. 2003). In order to determine
whether an indictment was constructively amended, we consider whether the jury
instructions, taken as a whole, “created a substantial likelihood that the defendant was
convicted of an uncharged offense.” Whirlwind Soldier, 499 F.3d at 870 (quotation
omitted).

       Here, the Indictment charged Buchanan with an “attempt to manufacture”
methamphetamine. Buchanan argues that the jury instructions constructively
amended the indictment because instruction six omitted the word “attempt” and
instead read: “The indictment charges the defendant with manufacturing a controlled
substance in violation of 21 U.S.C. § 841(a)(1).” We disagree with Buchanan. The
jury instructions repeatedly included references to the charge of attempt to
manufacture methamphetamine. Instruction five, for example, informed the jury that
Buchanan was charged with “knowingly and intentionally attempt[ing] to manufacture
. . . methamphetamine.” Instruction eight stated: “[t]he crime charged in the
indictment is an attempt to manufacture methamphetamine.” Additionally, although
the district court inadvertently omitted the word “attempt” from the beginning section
of instruction six, that instruction continued to inform jurors that 21 U.S.C. § 846
“provides that [a]ny person who attempts . . . to commit any offense defined in this
subchapter [which includes 21 U.S.C. § 841(a)(1)] shall be subject to the same
penalties as those prescribed for the offense.” More importantly, the court also
instructed the jury of the elements of “attempt to manufacture” in instruction seven,
and explained those elements in instruction eight.



                                         -12-
      Given these instructions, we believe that the jury instructions clearly informed
the jury of the essential elements of the crime of attempting to manufacture
methamphetamine. See Whirlwind Soldier, 499 F.3d at 870. The Indictment was not
constructively amended by a single reference to the crime of actual manufacture where
there were repeated, specific instructions identifying the crime of attempt and the
elements thereof. The repeated instructions of attempt insured that there was not a
substantial likelihood that the jury could convict Buchanan of actual manufacture of
methamphetamine. Therefore, we reject Buchanan’s constructive-amendment claim.

      B.     Variance of the Indictment

       Buchanan also argues that the evidence presented at trial constituted a variance
of the Indictment. “A variance arises when the evidence presented proves facts that
are “materially different from those alleged in the indictment.” United States v.
Begnaud, 783 F.2d 144, 147 n.4 (8th Cir. 1986). “[A] variance in the evidence affects
the defendant’s right to adequate notice” under the Sixth Amendment. Stuckey, 220
F.3d at 981. When a variance occurs, “[t]he charging document does not change, only
the evidence against which the defendant expected to defend” varies. Id. “Whether
a variance exists, and, if so, whether that variance prejudiced [the defendant] are
questions of law that we review de novo.” Id. at 979. Where the indictment “fully
and fairly” apprises the defendant of the allegations against which he must defend,
prejudice is absent and any variance is harmless error. See Begnaud, 783 F.2d at 148;
see also Stuckey, 220 F.3d at 982 (holding that any variance between the indictment
date and proof at trial did not result in material prejudice where time was not a
material element of the criminal offense”).

      Here, the Indictment charged Buchanan with attempt to manufacture
methamphetamine “on or about February 2006.” The offense of attempt to
manufacture methamphetamine did not require the Government to prove the
Indictment date as an element of the crime. Rather, the charge required the

                                          -13-
Government to prove that Buchanan carried out substantial steps toward the
manufacture of methamphetamine. United States v. Beltz, 385 F.3d 1158, 1162 (8th
Cir. 2004). It is exactly those steps that the Government sought to prove in its
presentation of evidence. While the evidence presented at trial extended as far back
as the spring of 2005, that evidence was not materially different from the allegations
of the Indictment, and the Indictment fully and fairly apprised Buchanan of the charge
he faced at trial. We therefore conclude that any variance that existed as a result of
the evidence proffered did not materially prejudice Buchanan.

      C.     Sufficiency of Indictment

       Buchanan’s final claim is that his Indictment failed to state an offense because
it did not directly cite 21 U.S.C. § 846, which criminalizes attempt. Failure to raise
a challenge to an indictment prior to trial generally constitutes a waiver. United States
v. Davis, 103 F.3d 660, 674 (8th Cir. 1996). A challenge that an indictment fails to
state an offense, however, may be raised at any time while the case is pending. Fed.
R. Crim. P. 12(b)(3)(B); United States v. Rosnow, 9 F.3d 728, 729 (8th Cir. 1993)
(per curiam). While Buchanan did not challenge the sufficiency of the Indictment
prior to trial, his claim that the Indictment failed to state an offense may be considered
on appeal. An indictment that is challenged after jeopardy attaches, will be upheld
“unless [the indictment] is so defective that by no reasonable construction can it be
said to charge the offense.” United States v. White, 241 F.3d 1015, 1021 (8th Cir.
2001) (quotation omitted); Davis, 103 F.3d at 675 (“[A]n indictment that is challenged
after jeopardy has attached will be liberally construed in favor of sufficiency.”
(quotation omitted)).

       “An indictment is sufficient if it fairly informs the accused of the charges
against him and allows him to plead double jeopardy as a bar to a future prosecution.”
United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988). An indictment need not
use the precise language in the statute as long as the Indictment, “by fair implication,”

                                          -14-
alleges an offense recognized by the law. Id. While Federal Rule of Criminal
Procedure 7(c)(1) generally requires an indictment to give the official citation of the
statute or other provision of law that the defendant is alleged to have violated, Rule
7(c)(3) also states, “Unless the defendant was misled and thereby prejudiced, neither
an error in a citation nor a citation’s omission is a ground to dismiss the indictment or
information or to reverse a conviction.” Fed. R. Crim. P. 7(c)(1), 7(c)(3); see also
Tanksley v. United States, 321 F.2d 647, 649 (8th Cir. 1963); United States v.
Williams, 129 Fed. App’x 332, 333 (8th Cir. 2005) (unpublished) (“An error in, or the
omission of, a statute’s citation in the body of an indictment is not grounds for a
conviction’s reversal unless the error or omission misleads the defendant to his
prejudice.”).

       Buchanan has not indicated how the omission of the statutory citation misled
him. A reasonable construction of the Indictment indicates that it charged the offense
of attempt to manufacture a controlled substance, and the words “did knowingly and
intentionally attempt to manufacture” clearly set forth the elements of the intended
charge of attempt. We therefore hold that the indictment fairly informed Buchanan
of the charges against him and allows him to plead double jeopardy as a bar to a future
prosecution for attempt to manufacture methamphetamine. The Indictment was
therefore sufficient.




III.   Conclusion

       For the foregoing reasons, we affirm the judgment of the district court.
                       ______________________________




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