Claim that indictment failed to charge offense is not waived but instead reviewed for plain error when raised for first time on appeal

INDICTMENT/APPEAL United States v. Sinks, No. 05-2170, ___ F.3d ___ (10th Cir. Jan. 23, 2007)(New Mexico). Appeal of conviction and sentence for possessing stolen explosive materials in violation of 18 U.S.C. §§ 842(h) and 844(a), and being felon in possession of explosives in violation of 18 U.S.C. §§ 842(i) and 844(a). HELD: (1) Appellant challenging indictment for failure to charge offense does not waive claim on appeal by failing to object before trial. However, such claim is reviewed only for plain error when raised for first time on appeal. (2) Failure of indictment to allege interstate commerce element and jury’s failure to explicitly find interstate commerce nexus does not constitute plain error. When evidence proving omitted element is overwhelming and essentially uncontroverted (i.e., that stolen explosives were transported from Arizona to Utah), failure to allege element does not seriously affect fairness, integrity or public reputation of judicial proceedings. Read the opinion here.