Appeal from the United States District Court for the Western District of Wisconsin. No. 76-CR-93 - James E. Doyle, Judge.
Before Fairchild, Chief Judge, and Swygert and Bauer, Circuit Judges.
On October 28, 1976, Defendant Dixon, an inmate at the Federal Correctional Institution in Oxford, Wisconsin, was apprehended with a sharpened table knife*fn1 in his possession as he walked across the prison yard. On December 13, 1976 he was indicted under 18 U.S.C. § 1792.*fn2
Subsequently, defendant moved to dismiss his indictment for failure to allege the essential element of intent. The district court in denying the motion, ruled that knowledge was an element of the crime charged, but that it need not be alleged in the indictment. At trial, the court instructed the jury that the government must prove that defendant did the act voluntarily and purposely, and not because of mistake or accident.
Prior to jury selection, defense attorney submitted Voir dire questions to the court, many of which related to race and prisoner status of appellant. Judge Doyle used six questions prepared by the defense in questioning prospective jurors. Although general background questions were addressed to individual jurors, questions pertaining to racial attitudes were addressed to the panel row by row. Where some doubt was expressed by a juror, specific responses were elicited by Judge Doyle.
At trial the government presented testimony from the prison employee who apprehended the defendant carrying the knife, and from an inmate who testified to defendant's past possession of knives and to defendant's request on the day of apprehension that the witness make him a "shank." Defendant testified in his own behalf admitting that he had the knife, but that such possession was necessary because the prison officials designated him as a "Central Monitoring Case"*fn3 and he was in fear for his life.
The jury found defendant guilty.
I. INTENT AS AN ESSENTIAL ELEMENT OF THE INDICTMENT
Defendant contends that the indictment is defective because it does not charge, either expressly or impliedly, the essential element of knowledge or intent. The indictment charged that Defendant Dixon:
did convey from place to place within that institution, a weapon or thing designed to kill, injure or disable an officer, agent, employee, or inmate thereof, in violation of Title 18, United States Code, § 1792.
The general rule is that an indictment is defective which fails to allege knowledge as an element when such element is explicitly contained in the statute. I Wright, Federal Procedure § 215 at 243 n. 20; United States v. Wabaunsee, 528 F.2d 1 (7th Cir. 1975). An indictment need not explicitly allege knowledge where knowledge can be imported from the words actually used. See United States v. Arteaga-Limones, 529 F.2d 1183, 1199 (5th Cir. 1976); Wabaunsee, supra at 3.
The statute in this case punishes one who "conveys" into or from place to place within a penal institution a weapon, etc. or other thing designed to kill or injure an officer or inmate. It does not explicitly require that such conveyance be done with knowledge, but it has been held that, notwithstanding the silence of the statute, "obviously criminal intent is an essential element." United States v. Swindler, 476 F.2d 167, 169 (10th Cir. 1973). Other decisions have assumed that intentional or knowing transportation of the weapon must be proved, and have held the evidence sufficient on that score. United States v. Roche, 443 F.2d 98 (10th Cir. 1971); United States v. Battle, 459 F.2d 64 (4th Cir. 1972).
The test of sufficiency of an indictment is whether the defendant has been furnished
with such a description of the charge against him as will enable him to make his defence, (sic) and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, . . . to inform the court of the facts alleged, so that it may decide ...