PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4416

BARRY WILLIAM DOWNER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-199-PJM)

Argued: June 2, 1997

Decided: April 27, 1998

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Reversed by published opinion. Judge Widener wrote the majority
opinion, in which Judge Michael concurred. Judge Williams wrote a
dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Gerald Chester Ruter, LAW OFFICE OF GERALD
CHESTER RUTER, Baltimore, Maryland, for Appellant. Barbara
Suzanne Skalla, Assistant United States Attorney, Jane Frances
Nathan, Assistant United States Attorney, Greenbelt, Maryland, for
Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellee.

_________________________________________________________________
OPINION

WIDENER, Circuit Judge:

After a jury trial, Barry William Downer was convicted of aggra-
vated sexual abuse, between "June 1992 through . . . about August
1992" in violation of 18 U.S.C. § 2241(c). More specifically, the jury
was instructed under § 2246(2)(D) and found him guilty of engaging
in a "sexual act" as defined in 18 U.S.C.§ 2246(2)(D).1 Subsequently,
the district court vacated the § 2241(c) conviction because it violated
the Ex Post Facto Clause of the Constitution. The court then, at the
insistence of the United States, convicted the defendant, without any
further trial, of violating 18 U.S.C. § 2244(a)(1) for abusive sexual
conduct. The court reasoned that § 2244(a)(1) is a lesser included
offense of § 2241(c) and that the indictment fully set forth its ele-
ments. We conclude that the district court's action violated the Grand
Jury Clause2 and therefore reverse Downer's conviction.

I.

The grand jury returned a three-count indictment against Downer
on May 4, 1995. All three counts charged him with aggravated sexual
abuse by engaging in a sexual act with a person who has not reached
the age of 12 in violation of 18 U.S.C. § 2241(c). Each count, how-
ever, alleged a different type of conduct within the definition of sex-
ual act found in 18 U.S.C. § 2246: Count One alleged contact
between the penis and the vulva, 18 U.S.C. § 2246(2)(A); Count Two
alleged contact between the penis and the anus, 18 U.S.C.
§ 2246(2)(A); and Count Three alleged intentional touching, "not
through the clothing," of the genitalia of another person who had not
yet attained the age of 12 years "with an intent to abuse, humiliate,
harass, degrade, and arouse and gratify the sexual desire of any per-
son." 18 U.S.C. § 2246(2)(D). The indictment stated that the charged
offenses all occurred between June 1992 and August 1992 at Andrews
_________________________________________________________________
1 Except as indicated otherwise, as here, or when self-evident, statutory
references are to June-August, 1992 versions.
2 U. S. Constitution, Amendment V."No person shall be held to answer
for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury . . . ."

                    2
Air Force Base in Maryland. Each offense charged permitted impris-
onment for life.3

Downer's trial began on November 20, 1995 in the district court.
The alleged abuse involved Downer's stepdaughter who was age ten
at the time of trial. The conduct was said to have taken place during
the summer of 1992 when the girl was visiting her mother, Nora
Downer, and the defendant at their home on Andrews Air Force Base.
She testified that she tried to report Downer's behavior to her mother
during the visit, but her mother did not believe her.

After returning to her father's, she exhibited behavioral changes.
She shortly thereafter disclosed the alleged sexual abuse to her step-
mother. Doctors, counselors, social workers, and law enforcement
officers then interviewed and examined her. These interviews pres-
ented consistent accounts of the nature of the abuse and the identity
of the abuser. An examination of her hymenal area by a pediatrician
specializing in child abuse also disclosed injury consistent with her
statements concerning sexual abuse, although earlier examinations by
other doctors were inconclusive.

The jury returned twice during their deliberations to indicate they
were deadlocked. Each time, the district court read an Allen charge to
the jury. The jury then indicated that it had reached a unanimous ver-
dict as to two counts but that "we are absolutely not going to be able
to reach a unanimous verdict on the third of these counts." The jury
was polled. They could not reach a verdict as to Count One, acquitted
Downer of Count Two, and found him guilty of Count Three.

At some point after the verdict, it was discovered that subsection
(2)(D) of 18 U.S.C. § 2246, which included certain types of inten-
tional touching within the definition of "sexual act" and formed the
basis for Downer's conviction under § 2241(c), had not become law
until September 13, 1994. The court requested briefs on the matter
from the parties. Following a hearing, the district court found that the
§ 2241(c) conviction violated the Ex Post Facto Clause of the Consti-
tution but determined that it should substitute a conviction under 18
_________________________________________________________________
3 Code section 2246 mentioned in the indictment was not in effect until
1994.

                    3
U.S.C. § 2244(a)(1) as a lesser included offense. The district court
reasoned that the defendant was given notice of the elements of
§ 2244(a)(1) in Count Three of the indictment and that the jury neces-
sarily found each of those elements beyond a reasonable doubt in
returning its verdict. Accordingly, the district court vacated Downer's
conviction on Count Three, "instituted in its place" a conviction under
§ 2244(a)(1) and sentenced Downer to prison.

II.

We are satisfied with the district court's conclusion, and the gov-
ernment's concession, that Downer's conviction on Count Three
under § 2241(c) violated the Ex Post Facto Clause of the Constitu-
tion. Thus, the dispute is over the district court's authority to substi-
tute another offense in place of the offense for which Downer was
improperly indicted.

The defendant argues that the district court could not after trial
replace a statute, under which he was indicted and which did not exist
during the crime's alleged commission, with a statute that did exist
at that time.

The government contends that the indictment gave Downer suffi-
cient notice of the elements for a § 2244(a)(1) conviction because in
this case § 2244(a)(1) is a lesser included offense of § 2241(c).

Both 18 U.S.C. § 2241, entitled "aggravated sexual abuse," and 18
U.S.C. § 2244, entitled "abusive sexual contact," make criminal cer-
tain forms of sexual conduct occurring on federal property. The con-
duct criminalized in § 2241(c) is a "sexual act" with a child, while in
§ 2244(a)(1) it is "sexual contact." 18 U.S.C. § 2245 (1992 version)
defines these terms. As relevant to this case, "sexual act" means:

          the penetration, however slight, of the anal or genital open-
          ing of another by a hand or finger or by any object with an
          intent to abuse, humiliate, harass, degrade, or arouse or grat-
          ify the sexual desire of any person.

18 U.S.C. § 2245(2)(C). "Sexual contact" means:

                     4
          the intentional touching, either directly or through the cloth-
          ing, of the genitalia, anus, groin, breast, inner thigh or but-
          tocks of any person with an intent to abuse, humiliate,
          harass, degrade or arouse or gratify the sexual desire of any
          person.

18 U.S.C. § 2245(3). For the 1994 version of the statute, see 18
U.S.C. § 2246.

The intentional touching aspect of "sexual act" presently described
in § 2246(2)(D) did not take effect until September 1994. In sum,
Congress redefined sexual act in 1994 to elevate certain forms of sex-
ual contact, i.e., direct intentional touching of the genitalia, to an
aggravated offense under § 2241(c). Section 2241(c), under either
version of the statute, for a first offender, allows a maximum term of
life imprisonment, while § 2244(a)(1) sets a maximum term of ten
years. For a second offender, the 1994 version of§ 2241(c) has an
obligatory sentence of life imprisonment.

The government relies on United States v. Plenty Arrows, 946 F.2d
62 (8th Cir. 1991); United States v. Torres, 937 F.2d 1469 (9th Cir.
1991); and United States v. Demarrias, 876 F.2d 674 (8th Cir. 1989),
for the proposition that a violation of 18 U.S.C.§ 2241 for aggravated
sexual abuse includes as a lesser included offense a violation of 18
U.S.C. § 2244 for abusive sexual contact. While the authorities are
not entirely uniform with respect to that proposition, we do not have
to decide the question.

Plenty Arrows' relevance to this case is slight, if any, for that case
concerned only penile contact rather than digital, which is the subject
of separate statutory provisions. Torres is a case on facts similar to
those present here, and the facts in Demarrias are not stated. It is true,
however, that those cases do state that abusive sexual contact under
§ 2244 carrying a penalty of not more than ten years is, in some cir-
cumstances, a lesser included offense of aggravated sexual abuse
under § 2241, carrying a maximum penalty of life imprisonment. The
similarity of those cases to our case, however, is far less than the dif-
ference. In each of those cases, all of the statutes involved, both prin-
cipal and lesser included offense, were in place at the same time, the
time the crime was committed. In our case, the statute under which

                     5
Downer was indicted did not come into existence until 1994, some
two years after the acts with which he was charged. So, to affirm any
conviction, the district court took the position that it would institute
a conviction of a lesser included offense under§ 2244(a)(1), abusive
sexual contact, as a lesser included offense of§ 2241, aggravated sex-
ual abuse. And this, although the defining item of the § 2241 offense,
§ 2246(2)(D), did not exist until some two years after the date of the
offense.

Both the district court and the government fall back on the proposi-
tion that the defendant had notice of the acts with which he was
charged, regardless of the crime he was indicted for, and if the only
question in this case was some kind of a due process argument with
respect to fair notice, that position might have more merit. The ques-
tion here, however, is whether the Grand Jury Clause of the Constitu-
tion has been violated. We have considered in three cases fact
situations which for practical purposes are indistinguishable from
those at hand.

In Moore v. United States, 512 F.2d 1255 (4th Cir. 1975), the
defendant was indicted under 26 U.S.C. § 5845(d) for "unlawfully
and knowingly possess[ing] a firearm, that is, a sawed-off 12-gauge
shotgun" which was defined in § 5845(d) in violation of 18 U.S.C.
§ 5861(d). It turned out that the gun in Moore's possession was not
a shotgun but a flare gun which had had a pipe welded to it, making
it capable of firing a 12-gauge shotgun shell, which was a weapon
described in § 5845(e) as a "device capable of being concealed on the
person from which a shot can be discharged through the energy of an
explosive." The weapon described in § 5845(e) was likewise prohib-
ited under § 5861(d). We affirmed the conviction on the ground that
Moore had been supplied with a Treasury Department certificate
"which fully described the modified flare gun."

In United States v. Bledsoe, 898 F.2d 430 (4th Cir. 1990), we
affirmed a conviction for selling crack cocaine near a secondary
school in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a). The indict-
ment charged the sale was "within 1,000 feet of a public secondary
school" in Wheeling, West Virginia. In that case, it turned out that the
sale was within 1,000 feet of a parochial school rather than a public
school. The district court permitted an amendment of the indictment

                    6
to remove the word "public" from the indictment, and we affirmed the
conviction on the ground, as before, that "we believe[d] that Bledsoe
received adequate notice of the offense charged." Bledsoe, 898 F.2d
at 433. As in Moore, we held there was no violation of the Grand Jury
Clause.

In United States v. Floresca, however, 38 F.3d 706 (4th Cir.
1994)(en banc), we overruled Moore and confined Bledsoe to its
facts, further holding that so far as Bledsoe was "inconsistent with our
holding today, it is no longer authority in this circuit." Floresca, 38
F.3d at 711. In Floresca, the defendant had been indicted for witness
tampering, in violation of 18 U.S.C. § 1512(b)(1), the gist of which
is that it is a crime to corruptly persuade another person with intent
to influence, delay or prevent the testimony of any person in an offi-
cial proceeding. The district court, however, instructed the jury that
it could convict the defendant under § 1512(b)(1), for which he was
indicted, if it found that he had hindered, delayed or prevented the
communication of information to a law enforcement officer related to
the commission of a federal crime, a violation not of § 1512(b)(1), for
which the defendant had been indicted, but of § 1512(b)(3), another
part of the same statute. We held that that instruction was a violation
of the Grand Jury Clause, and, in so doing, we overruled Moore and
effectively overruled Bledsoe. We do not see a distinction of any con-
sequence between Floresca and the case at hand. Downer was con-
victed of a lesser included offense of a crime which was not in
existence at the time he was charged with committing it. The fact that
he may have had notice of the facts constituting some other crime,
even a lesser included offense, does not suffice to take the place of
a grand jury indictment.

The government also analogizes the substituted § 2244 conviction
to a harmless typographical error in an indictment. Fed. R. Crim. P.
7(c)(3) provides that an error in the indictment's citation of a statute
is harmless if it does not mislead the defendant to the defendant's
prejudice.

In Downer's case, the mistake was not merely an"error in the cita-
tion" referred to in Rule 7(c)(3), rather it was a charge of crime under
a statute which did not exist on the date of the offense. Additionally,
the indictment could only have misled Downer as to the maximum

                     7
punishment for the offense, life imprisonment under§ 2241(c), as
opposed to ten years under § 2244(a)(1), hardly an insignificant dif-
ference. Although Downer may have been given notice of the greater
penalty because he was indicted and convicted under a statute which
did not exist on the date of the offense, it would be mere speculation
to say that his knowledge of a lesser maximum punishment would not
have affected his trial strategy or tactics. Rule 11, after all, even on
a guilty plea, requires that the defendant be advised of "the mandatory
minimum penalty provided by law, if any, and the maximum possible
penalty provided by law." Fed. R. Crim. P. 11(c)(1).

The government next claims that no error occurred because the
indictment's language furnished Downer with notice of all of the ele-
ments of § 2244(a)(1). That same position was the principal position
of the dissent in Floresca, which was rejected by the en banc court.
The rejected position was there stated thus: " . . . where the elements
of the crime for which a defendant is ultimately convicted are set out
in the indictment and where the evidence at trial establishes only facts
that were alleged in the indictment, there is no broadening of the
bases of the conviction and, consequently, the only error that may
arise is a variance." 38 F.3d at 716. Thus, Floresca is a square holding
that whatever the facts charged in the indictment may be, an indict-
ment must also show the crime for which a defendant is charged.4
Otherwise, it is deficient in violation of the Grand Jury Clause.

Stated otherwise, proceeding under the concededly ex post facto
statute meant that no conviction existed as a result of Downer's trial
for which the district court could substitute a replacement. "The right
to have the grand jury make the charge on its own judgment is a sub-
stantial right which cannot be taken away with or without court
amendment." Stirone v. United States, 361 U.S. 212, 218-19 (1960).
We believe the district court's institution of a conviction under
another statute essentially resulted in an impermissible amendment of
the indictment. Such action must be corrected on appeal. See
Floresca, 38 F.3d at 714.
_________________________________________________________________

4 A mere error in citation is, of course, harmless error under Rule
7(c)(3).

                    8
III.

For the above reasons, we reverse Downer's conviction under
§ 2244(a)(1). We thus do not address the merits of his other argu-
ments on appeal. Moreover, we note in conclusion that this opinion
is not intended to preclude the government from retrying Downer
under a proper indictment. See United States v. Akpi, 26 F.3d 24, 26
(4th Cir. 1994) (holding that Double Jeopardy Clause does not pre-
vent retrial after reversal based on defective indictment as opposed to
evidentiary sufficiency).

The defendant's conviction is accordingly

REVERSED.

WILLIAMS, Circuit Judge, dissenting:

Contrary to Supreme Court precedent, the Federal Rules of Crimi-
nal Procedure, and the prior decisions of this Court, the majority ele-
vates a simple miscitation to a constructive amendment of the
indictment. Application of the proper standard dictates that the con-
viction below be affirmed. I, therefore, respectfully dissent.

I.

Contrary to the conclusion drawn by the majority, there was no
violation of the Grand Jury Clause. See U.S. Const. amend. V. The
grand jury charged in Count Three that Downer "intentionally
touch[ed], not through the clothing, [a seven-year old child's] genita-
lia," in violation of 18 U.S.C.A. § 2241(c). That the Third Count of
the indictment makes a case of abusive sexual contact, within the
meaning of 18 U.S.C.A. § 2244, is beyond dispute. Thus, despite the
contentions of the majority, the conduct alleged in Count Three of the
indictment (and for which Downer was convicted) was a crime during
the summer of 1992. As a result, this case turns on whether the cita-
tion of the wrong statute in the indictment mandates the reversal of
a criminal conviction. It is well established that where, as here, the
defendant was not prejudiced by the erroneously cited statute, the
conviction must be affirmed.

                    9
In Williams v. United States, 168 U.S. 382 (1897), the Government
intentionally indicted the defendant with violating§ 3169 of the
Revised Statutes. Although the Supreme Court concluded that the
defendant's conduct was not proscribed by that statute, it nevertheless
found that the indictment was valid because the defendant's conduct
was prohibited by § 5481. Writing for the Court, the first Justice Har-
lan noted:

          It is wholly immaterial what statute was in the mind of the
          district attorney when he drew the indictment, if the charges
          made are embraced by some statute in force. The indorse-
          ment on the margin of the indictment constitutes no part of
          the indictment, and does not add to or weaken the legal
          force of its averments. We must look to the indictment itself,
          and, if it properly charges an offense under the laws of the
          United States, that is sufficient to sustain it, although the
          representative of the United States may have supposed that
          the offense charged was covered by a different statute.

Id. at 389.

Similarly, in United States v. Hutcheson, 312 U.S. 219 (1941), the
defendants denied that their conduct violated the statute under which
they were indicted. Even if true, the Court found the defendants'
argument to be without merit. Writing for the Court, Justice Frank-
furter gave the following explanation for its ruling:

          In order to determine whether an indictment charges an
          offense against the United States, designation by the pleader
          of the statute under which he purported to lay the charge is
          immaterial. He may have conceived the charge under one
          statute which would not sustain the indictment, but it may
          nevertheless come within the terms of another statute.

Id. at 229.

Rule 7 of the Federal Rules of Criminal Procedure has codified the
holdings of Williams and Hutcheson. See Fed. R. Crim. P. 7(c)(3)
advisory committee's note. Under Rule 7(c), a statutory miscitation

                    10
in an indictment is harmless error and cannot be grounds for reversing
the conviction unless the defendant is misled by the erroneous refer-
ence and prejudiced thereby. See Fed. R. Crim. P. 7(c)(3). Accord-
ingly, "[a] conviction may be sustained on the basis of a statute or
regulation other than that cited [in the indictment]." Fed. R. Crim. P.
7(c)(3) advisory committee's note.

In United States v. Massuet, 851 F.2d 111 (4th Cir. 1988), we
applied Rule 7(c) to an indictment virtually indistinguishable from the
indictment in the instant case. In Massuet, the Government intention-
ally indicted the defendants with violating 21 U.S.C.A. § 959(b)(2).
Although we concluded that the defendants could not be sentenced for
violating that section, we nevertheless found that the indictment was
valid because the defendants' conduct was prohibited by 21 U.S.C.A.
§ 841(a)(1). Id. at 115. In so holding, we specifically held that Rule
7(c)(3) was not limited to unintentional clerical errors. See id. at 116.
Rather, we held that Rule 7(c)(3) applies even in cases where "the
prosecutor intentionally cite[s] an inappropriate statute," so long as
"an appropriate statute proscrib[es the same] conduct charged in the
indictment." Id.

As in Williams, Hutcheson, and Massuet, the prosecutor below
intentionally cited an inappropriate statute, i.e., 18 U.S.C.A.
§ 2241(c). Also like these three cases, an appropriate statute pro-
scribes the very conduct charged in the indictment, i.e., 18 U.S.C.A.
§ 2244.5 As such, the indictment complied with the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 7(c)(1). In particular, the
_________________________________________________________________
5 Downer actually concedes that 18 U.S.C.A. § 2244 is a lesser
included offense of 18 U.S.C.A. § 2241. See Appellant's Br. at 38 (citing
United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991); United
States v. Torres, 937 F.2d 1469 (9th Cir. 1991); United States v.
Demarrias, 876 F.2d 674, 676 (8th Cir. 1989)); see also United States
v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991). Thus, by convicting
Downer of violating § 2241(c), the jury found all of the elements neces-
sary to establish his guilt for violating § 2244. Of equal importance,
Downer was on notice of the essential elements of the offense with
which he was ultimately convicted. See Schmuck v. United States, 489
U.S. 705, 718 (1989) (noting that a defendant is always on notice that he
may be convicted of a lesser included offense of any offense charged in
the indictment).

                    11
indictment informed Downer of the essential facts constituting the
offense charged. Consequently, citation to § 2241(c) did not prejudice
Downer or, more importantly, invalidate the prosecution. See
Williams, 168 U.S. at 389; Fed. R. Crim. P. 7(c)(3).

II.

So long as the conduct charged in the indictment constituted a
crime at the time the offense was committed, as was the case here, it
is well established that the district court should preserve the jury's
verdict by simply sentencing the defendant under the proper statute.
See Massuet, 851 F.2d at 116 (noting "that the proper procedure for
dealing with the problem of the erroneously cited statute would be to
remand the case for resentencing under the proper statute"). Because
the majority ignores this well established rule, I dissent.

                    12
