                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,        Nos. 05-50124
                v.                               05-50292
LATASHA LORRAINE ARNT, a/k/a                 D.C. No.
Latasha Lorraine Simpson and               CR-03-00523-PA
Latasha L. Cummings,                          OPINION
              Defendant-Appellant.
                                       
       Appeals from the United States District Court
           for the Central District of California
        Percy Anderson, District Judge, Presiding

                 Argued and Submitted
         November 13, 2006—Pasadena, California

                   Filed January 25, 2007

   Before: Betty B. Fletcher, Ferdinand F. Fernandez, and
              Susan P. Graber, Circuit Judges.

               Opinion by Judge B. Fletcher




                            1025
1028                UNITED STATES v. ARNT


                         COUNSEL

Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.

Jerry A. Behnke, Assistant United States Attorney, Riverside,
California, for the plaintiff-appellee.


                         OPINION

B. FLETCHER, Circuit Judge:

   A jury convicted LaTasha Lorraine Arnt of committing vol-
untary manslaughter while accompanying the Armed Forces
of the United States in Turkey, in violation of 18 U.S.C.
§§ 1112(a), 3261(a). The court sentenced her to eight years in
prison and ordered her to pay restitution to the victim’s fam-
ily.

  On appeal, Arnt raises several challenges to her conviction
and sentence. She asserts that the indictment failed to allege
an essential element and challenges several aspects of her
conviction, including the sufficiency of the evidence and the
                        UNITED STATES v. ARNT                       1029
court’s refusal to give an involuntary manslaughter instruc-
tion. Finally, she argues that her sentence is unreasonable and
contends that the restitution order is illegal because it defines
“victim” too broadly.

   We reject her challenge to the indictment, which was suffi-
cient to identify the jurisdictional basis of the prosecution.
Similarly, we reject her challenge to the sufficiency of the
evidence, which provided an adequate basis to establish,
beyond a reasonable doubt, that Arnt was accompanying the
Armed Forces outside the United States at the time of her
offense. We agree with Arnt, however, that the district court
committed reversible error in refusing to give an involuntary
manslaughter instruction.1

                             BACKGROUND

   LaTasha Arnt fatally stabbed her husband, Staff Sergeant
Matthias Anthony Arnt, III, during a domestic dispute on
Incirlik Air Base, Turkey, where SSgt. Arnt served as a mem-
ber of the security forces unit. The government charged Arnt
with murder, asserting jurisdiction under the Military Extra-
territorial Jurisdiction Act of 2000 (MEJA), 18 U.S.C.
§§ 3261-3267. After a jury deadlocked over whether to con-
vict, the court declared a mistrial. She was re-tried; a second
jury acquitted her of murder but convicted her of the lesser-
included offense of voluntary manslaughter.

  Arnt filed a timely notice of appeal. We have jurisdiction
under 28 U.S.C. § 1291.
  1
   Because we reverse the conviction on the jury instruction issue, we do
not reach Arnt’s other challenges to her conviction, not mentioned herein,
nor do we address her challenges to her sentence or the restitution order.
1030                     UNITED STATES v. ARNT
                                DISCUSSION
                   Sufficiency of the Indictment
   [1] Congress enacted MEJA in response to a jurisdictional
gap created by host nations’ reluctance to prosecute crimes
against Americans committed by civilians accompanying the
Armed Forces outside the United States. H.R. Rep. No. 106-
778(I) (2000), 2000 WL 1008725, at *5. To close this gap,
MEJA creates federal jurisdiction over those who commit fel-
onies while “accompanying the Armed Forces outside the
United States.” 18 U.S.C. § 3261(a)(1).2 A person is “accom-
panying the Armed Forces outside the United States,” if she
satisfies three requirements: she must be “(A) [a] dependent
of . . . a member of the Armed Forces; (B) residing with such
member . . . outside the United States; and (C) not a national
of or ordinarily resident in the host nation.” 18 U.S.C.
§ 3267(2).3
  2
    Section 3261(a)(1) reads, in pertinent part:
        Whoever engages in conduct outside the United States that
     would constitute an offense punishable by imprisonment for more
     than 1 year if the conduct had been engaged in within the special
     maritime and territorial jurisdiction of the United States . . . while
     . . . accompanying the Armed Forces outside the United States
     . . . shall be punished as provided for that offense.
  3
    Section 3267(2) reads in full:
     As used in this chapter:
     ....
     (2) The term “accompanying the Armed Forces outside the
     United States” means—
           (A) A dependent of—-
              (i) a member of the Armed Forces;
              (ii) a civilian employee of the Department of Defense
              (including a nonappropriated fund instrumentality of the
              Department); or
              (iii) a Department of Defense contractor (including a
              subcontractor at any tier) or an employee of a Department
              of Defense contractor (including a subcontractor at any
              tier);
           (B) residing with such member, civilian employee, con-
           tractor, or contractor employee outside the United States; and
           (C) not a national of or ordinarily resident in the host
           nation.
                     UNITED STATES v. ARNT                    1031
   Arnt challenges the indictment’s failure to allege that she
resided with SSgt. Arnt. She contends that § 3267(2)(B)’s res-
idency requirement is an essential element both to confer fed-
eral jurisdiction under MEJA and to fulfill the indictment’s
purpose of giving her notice of the elements of the crime with
which she was charged.

   Because Arnt first challenged her indictment after trial, we
review the indictment for plain error, see United States v.
Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002), “liberally
constru[ing] the indictment in favor of validity.” United States
v. Chesney, 10 F.3d 641, 643 (9th Cir. 1993). The key ques-
tion as to the sufficiency of an indictment “is whether an error
or omission in an indictment worked to the prejudice of the
accused. . . . Absent such prejudice, the conviction may not
be reversed for any omission in the indictment.” Velasco-
Medina, 305 F.3d at 847 (internal quotation marks omitted).

   [2] Reviewing for plain error, we find this indictment ade-
quate. A defendant is not prejudiced where her counsel has
notice of the omitted element and the jury is properly
instructed regarding the missing element. Id. Arnt’s counsel
had notice of the residency requirement from the statute itself,
specifically cited in the indictment and, at least two months
before trial, from the first trial’s jury instructions and the gov-
ernment’s trial memorandum, both of which inform as to the
§ 3267 residency requirement. The jury in the second trial
was properly instructed on the residency requirement, both at
the beginning of trial and in the jury instructions. With notice
of the omitted element and proper jury instructions, Arnt suf-
fered no prejudice from the indictment’s failure to allege resi-
dence.

   [3] Arnt challenges the indictment on the alternative
grounds that its failure to assert residence stripped the district
court of jurisdiction to hear the case. This is essentially a
restatement of her sufficiency argument couched in jurisdic-
tional language. In general, “defects in an indictment do not
1032                 UNITED STATES v. ARNT
deprive a court of its power to adjudicate a case.” United
States v. Cotton, 535 U.S. 625, 630 (2002). Although an
indictment challenged before trial may be held insufficient for
failure to assert an essential jurisdictional element, see United
States v. Perlaza, 439 F.3d 1149, 1167 (9th Cir. 2006), for the
reasons stated above, this tardily challenged indictment was
adequate.

                 Sufficiency of the Evidence

   Arnt argues that the evidence presented at trial was insuffi-
cient to establish, beyond a reasonable doubt, her residence in
Turkey as required by § 3267(2)(B) to establish jurisdiction
pursuant to MEJA. We review the sufficiency of evidence in
a criminal trial de novo, asking whether, after “viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” United States v.
Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004) (internal quo-
tation marks omitted).

   Keeping this standard in mind, we turn to the evidence of
residency in the record. The parties stipulated, and read into
the record, several facts bearing on residence: that Arnt’s
“permanent home of record” was in Riverside, California; that
SSgt. and Mrs. Arnt transferred to Incirlik Air Base August 1,
2001; that Arnt resided with her grandmother in Riverside,
California, from early March 2003 to May 23, 2003; and that
Arnt and her infant daughter returned to Incirlik Air Base,
Turkey on May 24, 2003. Arnt testified that she left for the
United States in December 2002 due to an imminent civilian
evacuation of Incirlik and that she returned to Turkey once the
evacuation was lifted. Several witnesses referred to the resi-
dence on the base as “the Arnts’ house.” Arnt herself referred
to it as “our house.” Arnt acted as though the house at the
base were her own, cleaning it upon her arrival from the
United States and storing important papers there.
                     UNITED STATES v. ARNT                  1033
   [4] On the basis of these facts, a rational jury could con-
clude beyond a reasonable doubt that Mrs. Arnt resided with
SSgt. Arnt at Incirlik and, thus, the evidence was sufficient to
support the verdict.

          Involuntary Manslaughter Instruction

   The district court instructed the jury on murder and volun-
tary manslaughter but refused to instruct on the lesser-
included offense of involuntary manslaughter. Arnt asserts
that this constituted reversible error because the jury was
thereby precluded from convicting her of involuntary man-
slaughter, even if the jurors believed the evidence supporting
her theory of accidental death.

   [5] A defendant is entitled to an instruction on a lesser-
included offense if the law and evidence satisfy a two-part
test: 1) “the elements of the lesser offense are a subset of the
elements of the charged offense,” Schmuck v. United States,
489 U.S. 705, 716 (1989); and 2) “the evidence would permit
a jury rationally to find [the defendant] guilty of the lesser
offense and acquit [her] of the greater,” Keeble v. United
States, 412 U.S. 205, 208 (1973). We review the first step de
novo and the second step for abuse of discretion. United
States v. Naghani, 361 F.3d 1255, 1262 (9th Cir. 2004).

   [6] There is an apparent split in Ninth Circuit authority
regarding the standard of review for instructions on lesser-
included offenses. Compare id. with United States v. Pierre,
254 F.3d 872, 875 (9th Cir. 2001) (reviewing de novo). We
write to make clear that there is no actual split. The first step
in determining whether a lesser-included offense instruction
should be given asks us to consider a legal question: Is the
offense for which the instruction is sought a lesser-included
offense of the charged offense? See Schmuck, 489 U.S. at 716.
Therefore, the first step is subject to de novo review. The sec-
ond step is a factual inquiry: Does the record contain evidence
that would support conviction of the lesser offense? See Kee-
1034                 UNITED STATES v. ARNT
ble, 412 U.S. at 208. The trial judge obviously is better situ-
ated than we are to make this factual determination; therefore,
we review the second step for abuse of discretion. See United
States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987).

   Our statement in Pierre that de novo review applies to a
district court’s refusal to give a lesser-included offense
instruction is not to the contrary. See Pierre, 254 F.3d at 875.
In Pierre, we engaged in only the first step of the lesser-
included offense inquiry, i.e., determining whether assault by
striking, beating, or wounding is a lesser-included offense of
the charged crime of assault with a dangerous weapon. As
that is a legal question, de novo review was properly applied.

   [7] With the standard of review established, we turn to the
first step of the lesser-included offense instruction inquiry. It
is well established that involuntary manslaughter is a lesser-
included offense of murder. See United States v. Anderson,
201 F.3d 1145, 1148 (9th Cir. 2000) (“Voluntary and involun-
tary manslaughter are lesser included offenses of murder.”);
United States v. Skinner, 667 F.2d 1306, 1309 n.1 (9th Cir.
1982) (per curiam) (“[I]nvoluntary manslaughter is a lesser-
included offense of murder and voluntary manslaughter.”).
The government does not argue otherwise.

   [8] It is the second step that is at issue here: Is there evi-
dence of accident that could provide the predicate for an
involuntary manslaughter instruction? To acquit of the greater
offenses and to convict of the lesser, in this case, would
require the jury to find that Arnt killed her husband uninten-
tionally. See United States v. Paul, 37 F.3d 496, 499 (9th Cir.
1994) (“If the defendant killed with the mental state required
for murder (intent to kill or recklessness with extreme disre-
gard for human life), but the killing occurred in the ‘heat of
passion’ caused by adequate provocation, then the defendant
is guilty of voluntary manslaughter. . . . By contrast, the
absence of malice in involuntary manslaughter arises not
because of provocation induced passion, but rather because
                     UNITED STATES v. ARNT                  1035
the offender’s mental state is not sufficiently culpable to meet
the traditional malice requirements.”) (internal citations and
quotation marks omitted). The evidence in support of uninten-
tional death comes mainly from Arnt’s testimony and that of
the defense forensic pathologist.

   First we consider Arnt’s testimony. She testified that she
and SSgt. Arnt fought on the night of his death over whether
she would leave him because of his womanizing and drinking;
that the fight became physical; that, after wrenching free from
her husband’s choke-hold, she ran to the kitchen, grabbed a
knife, and told her husband to leave the house; that SSgt. Arnt
responded by telling her to say her prayers as he crouched as
if to punch her; and that the next thing she remembered was
pulling the knife from his chest. She testified that she was not
aiming the knife anywhere, that she “didn’t want to fight him;
I just wanted him to leave,” and, in response to cross-
examination, said she “didn’t want to kill him.” Arnt also tes-
tified of her attempt to save her husband’s life by calling the
base law enforcement office to demand an ambulance, and
telling him, “[j]ust to stay with me, not to move” while wait-
ing for the ambulance to arrive.

   The record contained evidence of the extreme stress under
which these two were operating. Mrs. Arnt testified that, two
days before the stabbing, she had traveled from the United
States, a 24-hour journey, with a baby and with little sleep.
Moreover, she had not had much sleep after her arrival in Tur-
key. A number of witnesses testified that SSgt. Arnt became
extremely drunk at a party on the night of his death. His
supervising officer testified that SSgt. Arnt was slurring his
speech and spilling drinks; his hosts testified that they called
a cab to take him home because he was too drunk to remain
at the party. According to the prosecution’s toxicologist, SSgt.
Arnt’s blood alcohol level at the time of his death was 0.26,
more than three times the legal limit for driving in most states.
In short, it is eminently understandable that, given their condi-
1036                   UNITED STATES v. ARNT
tion, the Arnts would have had an irrational fight that may
have included poor physical control and slow reaction times.

   Arnt’s testimony is supported by that of the defense pathol-
ogist, Dr. Herrmann, who testified that the wound could have
come largely from the victim’s movements, rather than from
the defendant’s. According to Dr. Herrmann, the trajectory
and depth of the wound was consistent with SSgt. Arnt bend-
ing deeply forward at his waist and falling into the knife as
he attempted to punch Mrs. Arnt.

   [9] Admittedly, the evidence supporting unintentional death
is inconsistent with other evidence.4 However, if there is some
evidence to support the jury instruction, it is the jury’s prov-
ince to determine which evidence it believed most accurately
reflected the events surrounding the stabbing. See United
States v. Sotelo-Murillo, 887 F.2d 176, 182 (9th Cir. 1989)
(“The weight and credibility of the conflicting testimony are
issues properly resolved by the jury.”). Setting aside the con-
trary evidence, we are left with Mrs. Arnt’s testimony that she
did not intend to kill her husband, her lack of aim of the knife,
the defense pathologist’s hypothesis that the wound could
have come from SSgt. Arnt’s falling on the knife, SSgt.
Arnt’s drunkenness, and Mrs. Arnt’s fatigue. A jury rationally
could have found from this evidence that Mrs. Arnt lacked the
intent to kill SSgt. Arnt and that his death was the tragic, and
accidental, result of SSgt. Arnt’s falling onto the knife as Mrs.
Arnt waved it menacingly in an effort to make him leave her
alone.
  4
   Dr. Herrmann’s testimony was contradicted by the prosecution forensic
pathologist, who testified that the angle of the blow was most consistent
with an overhead, downward thrust. Although Mrs. Arnt testified that she
did not intend to kill her husband, she never explicitly claimed that the
stabbing was accidental, only testifying that she could not remember the
exact moment when she stabbed SSgt. Arnt and, alternatively, that she
acted in self-defense.
                     UNITED STATES v. ARNT                  1037
   [10] The integrity of the jury’s fact-finding role undergirds
our requirement that a lesser-included offense instruction be
given when supported by law and the evidence. In this case,
a couple fought and a young serviceman died. The jury might
have been unwilling to acquit his killer of all crimes and, even
if the jurors believed the evidence pointing to accidental
death, without an involuntary manslaughter instruction, they
might have convicted of voluntary manslaughter as a compro-
mise between convicting of murder and acquitting entirely.
See Keeble, 412 U.S. at 212-13 (“Where one of the elements
of the offense charged remains in doubt, but the defendant is
plainly guilty of some offense, the jury is likely to resolve its
doubts in favor of conviction.”). We therefore reverse and
grant a new trial.

                         CONCLUSION

   The indictment conferred jurisdiction and adequately
informed the defendant of the charges against her. The evi-
dence of residence was sufficient to support the conviction.
We find that there was sufficient evidence at trial to support
an involuntary manslaughter instruction. Accordingly, we
hold that the district court erred in refusing to give an invol-
untary manslaughter instruction. We VACATE the convic-
tion and REMAND for a new trial.
