                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JUL 13 2000
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 99-3276
          v.                                               D. Kan.
 BLAKE A. MADDEN,                              (D.C. No. 99-40006-01-RDR)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McWILLIAMS, and HENRY, Circuit Judges.


      Blake A. Madden appeals his conviction for driving while having a blood

alcohol concentration of .08 or more, in violation of Kan. Stat. Ann. § 8-

1567(a)(2) and 18 U.S.C. § 13. Mr. Madden first argues that the information

omitted a critical element of the offense, and thus, the court was without

jurisdiction. Second, Mr. Madden contends that the evidence was insufficient to

convict him of the charge. We hold that because the omission of which Mr.

Madden complains is not an essential element, the amended information was



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
adequate. Second, we hold the evidence was sufficient for a rational trier of fact

to convict Mr. Madden of the charge. Accordingly, we affirm the conviction.



I. BACKGROUND 1

      On September 2, 1995 at approximately 2:00 a.m., Mr. Madden approached

a DUI (driving while under the influence of alcohol) check point while driving on

Fort Riley, a federal military installation in Kansas. Mr. Madden submitted to a

voluntary preliminary breath test (PBT), which yielded a breath alcohol

concentration (BAC) of .09%. At approximately 3:13 a.m., an Intoxilyzer 5000

breath test yielded a BAC of .101%.

      The government charged Mr. Madden with driving under the influence of

alcohol in violation of Kan. Stat. Ann. § 8-1567(a)(1) & (a)(3), as well as 18

U.S.C. § 13. 2 The United Sates Attorney for the District of Kansas and Mr.

      1
       As the parties are familiar with the facts of this case, to which Mr.
Madden has stipulated, we abbreviate our factual recitation.
      2
          Count 1 of the information read as follows:
             On or about the second day of September, 1995, at Fort
             Riley, Kansas, a federal military installation within the
             exclusive jurisdiction of the United States, in the District
             of Kansas, BLAKE A. MADDEN, did unlawfully drive
             and operate a motor vehicle while the alcohol
             concentration in his blood or breath at the time or within
             two hours after he operated the vehicle is .08 or higher, in
             violation of Title 18, United States Code, Section 13, and
             K.S.A. 8-1567(a)(1) (Class ___); and/or BLAKE A.
                                                                        (continued...)

                                          -2-
Madden entered into a diversion agreement, through which prosecution was to be

deferred for twelve months until December 13, 1996. If, at that time, Mr. Madden

had fully complied with the terms of the diversion agreement, the charges were to

be dismissed with prejudice. Among the terms of the agreement was a condition

that Mr. Madden would violate no laws during its term.

      The diversion agreement further stated:

            In the event that the Special Assistant United States
            Attorney shall resume criminal prosecution in the case of
            USA v. BLAKE A. MADDEN, Case No. 95-M-9212-01,
            it is agreed and stipulated that the case shall be submitted
            to the Court upon the following stipulations:
            1.      Defendant stipulates that the Government’s
                    evidence, standing alone, would be adequate to
                    convict the defendant of the offense charged in the
                    above-captioned case.
            2.      Further, Defendant stipulates to make no objection
                    to the introduction and admission of investigative
                    evidence and reports which the Government now
                    has in its possession and seeks to use as evidence in
                    the case.

Aplt. App. at C-9

      Unfortunately, on July 13, 1996, Mr. Madden was again arrested for DUI.

On September 26, 1996, the Municipal Court of the City of Manhattan, Kansas


      2
       (...continued)
             MADDEN, did unlawfully drive and operate a motor
             vehicle while under the influence of alcohol or drugs, in
             violation of Title 18, United States Code, Section 13, and
             K.S.A. 8-1567(a)(3) (Class ___).
Aplt. App. at B-4.

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convicted him of that offense. On a motion from the government, the court

revoked the diversion agreement on August 24, 1998. After a trial before a

magistrate judge, Mr. Madden was convicted of driving under the influence in

violation of Kan. Stat. Ann. § 8-1567(a)(2), transportation of an open container in

violation of Kan. Stat. Ann. § 8-1599, and possession of alcohol by a minor in

violation of Kan. Stat. Ann. § 41-727. Mr. Madden appealed to the district court,

which “f[ound] no merit to any of the claims raised by the defendant” and

affirmed the magistrate’s ruling. See Aplt.’s App. at K-43.



II. DISCUSSION

      Mr. Madden argues that the district court erred when it held the information

contained all the elements of the offense intended to be charged. He contends the

information was jurisdictionally insufficient, because it did not include the phrase

“as measured within two hours of the time of operating or attempting to operate a

vehicle,” to describe his breath alcohol concentration. He further argues the

evidence was insufficient for a conviction under Kan. Stat. Ann. § 8-1567(a)(2)

because the evidence established his BAC at 3:13 a.m. but did not establish his

BAC at 2:00 a.m., while he was driving. We address each argument in turn.




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       A.     Sufficiency of the Information

       We review the sufficiency of an indictment or information de novo. See

United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). “The indictment

or the information shall be a plain, concise and definite written statement of the

essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). Under

this rule, “[c]onvictions are no longer reversed because of minor and technical

deficiencies which did not prejudice the accused[, and] [t]his has been a salutary

development in the criminal law.”       Russell v. United States , 369 U.S. 749, 763

(1962) (quotation omitted). Of course, “the substantial safeguards to those

charged with serious crimes cannot be eradicated under the guise of technical

departures from the rules.”      Id.

       Accordingly, an indictment or information “is sufficient if it contains the

elements of the offense charged, putting the defendant on fair notice of the charge

against which he must defend, and if it enables a defendant to assert an acquittal

or conviction in order to prevent being placed in jeopardy twice for the same

offense.” United States v. Poole , 929 F.2d 1476, 1479 (10th Cir. 1991)

(quotations omitted). The indictment or information need not recite the exact

language of the statute.      See id. Moreover, “after a verdict or plea of guilty,

every intendment must be indulged in support of the indictment or information

and such a verdict or plea cures mere      technical defects . . . .”   Clay v. United


                                             -5-
States , 326 F.2d 196, 198 (10th Cir. 1963).         “[W]here there is a post-verdict

challenge . . . asserting the absence of an element of the offense, it has been held

the indictment [or information] will be sufficient if it contains ‘words of similar

import’ to the element in question.”    United States v. Brown , 995 F.2d 1493, 1505

(10th Cir. 1993) (quoting United States v. Vogt , 910 F.2d 1184, 1201 (4th Cir.

1990)).

       Mr. Madden’s first challenge to the sufficiency of the information is        based

on the fact that it tracked the language of an outdated version of the Kan. Stat.

Ann. § 8-1567:

              No person shall operate or attempt to operate any vehicle
              within this state while: (1) The alcohol concentration in
              the person’s blood or breath, at the time or within two
              hours after the person operated or attempted to operate the
              vehicle, is .10 or more.

Kan. Stat. Ann. § 8-1567 (1985 Supp.). At the time of his conviction, the statute

read as follows:

              No person shall operate or attempt to operate any vehicle
              within this state while the alcohol concentration in the
              person’s blood or breath, as measured within two hours of
              the time of operating or attempting to operate a vehicle is
              .08 or more.

Kan. Stat. Ann. § 8-1567(a)(2) (1995 Supp.).

       Mr. Madden claims that the amendment added a new, essential element to

the DUI offense, “as measured within two hours,” and that the information was


                                               -6-
fatally deficient because it did not set out the language of the statute or words of

similar import. We disagree. The information alleged the three essential

elements of the offense: that (1) on the date in question, (2) Mr. Madden drove a

vehicle (3) while having had an alcohol concentration in his blood or breath of

.08 or higher. We agree with the district court that the information adequately

informed Mr. Madden of the charges against which he was to defend. The phrase

used in the information—“at the time or within two hours after the person

operated to attempted to operate the vehicle”—gave notice of what the

government was charging and what it had to prove.

      The requirement that the government establish that the BAC was measured

“within two hours of operating or attempting to operate a vehicle” is a

foundational matter relating to the admissibility and competency of evidence. See

State v. Pendleton, 849 P.2d 143, 148-49 (Kan. App. 1993). That requirement did

not, however, introduce a new element into the ‘per se’ statute. See id.



      B.     Sufficiency of the Evidence

      Mr. Madden next argues the evidence was insufficient for a conviction

under Kan. Stat. Ann. § 8-1567(a)(2) because the government established his

BAC at 3:13 a.m. but did not establish his BAC at 2:00 a.m., while he was

driving. This argument is also unavailing. Mr. Madden is bound by his


                                          -7-
stipulation: “the Government’s evidence, standing alone, would be adequate to

convict the Defendant of the offense charged.” Aplt. App. at C-9. Moreover,

Kansas law clearly demonstrates the evidence is sufficient for such a conviction.

      “To obtain a conviction for a per se violation under K.S.A. 8-1567(a)(2),

the State must show the alcohol concentration was tested within two hours of the

last time a defendant operated or attempted to operate a vehicle.” Pendleton, 849

P.2d at 148. Direct evidence of the defendant’s BAC while driving is not

required:

             [A] per se violation under subparagraph (a)(2) requires a
             blood alcohol test result of .08 or more as measured within
             2 hours of driving or attempting to drive—no other
             evidence is required to establish a prima facie case. In
             other words, in a prosecution for a per se violation, the
             trier of fact may infer that the test result accurately
             measured the defendant’s blood alcohol concentration at
             the time the defendant was last operating or attempting to
             operate a vehicle.

State v. Hartman, 991 P.2d 911, 914 (Kan. App. 2000). Here, Mr.Madden

acknowledges the test was given approximately one hour and thirteen minutes

after he last operated the vehicle, well within the required two-hour period.

Accordingly, we agree with the district court that the evidence was sufficient to

establish a conviction under Kan. Stat. Ann. § 8-1567(a)(2).



III. CONCLUSION


                                         -8-
     We hold the information was sufficient, as was the evidence, in this case.

Accordingly, we AFFIRM Mr. Madden’s conviction.



                                             Entered for the Court,



                                             Robert H. Henry
                                             Circuit Judge




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