A conviction based on a charging document that fails to state an essential element of the offense must be vacated, when prejudice is shown.[508]  See § 6.51, supra.

[508] United States v. Bird, 342 F.3d 1045 (9th Cir. September 8, 2003) (failure to allege element of charged offense is fundamental defect that renders indictment constitutionally defective; failure to state race of victim not fatal, since violation of 18 U.S.C. § 1153 can also occur when defendant is Indian in Indian country).

POST CON RELIEF - GROUNDS - PROSECUTION MUST PLEAD AND PROVE ABSENCE OF STATUTORY EXCEPTION TO OFFENSE WHERE ISSUE RAISED
United States v. Vuitch, 402 U.S. 62, 67 (1971) (once possibility is raised, prosecution must both plead and prove beyond a reasonable doubt the lack of an exception that is written into the text of a criminal statute).

Seventh Circuit

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
United States v. Griffin, ___ F.3d ___, ___ (7th Cir., Jul. 5, 2012) (reversing federal conviction for felon in possession of firearms where there was no evidence defendant intended to exercise any control over his father's firearms in his parents' home where he went to live after being released from prison: a defendant's strong connection to the residence alone does not suffice to establish the nexus required to prove his constructive possession of a gun found in the residence.").

Ninth Circuit

POST CON RELIEF " GROUNDS " INSUFFICIENT EVIDENCE " STANDARD OF REVIEW
United States v. Bennett, 621 F.3d 1131 (9th Cir. Sept. 10, 2010) (We review de novo a claim challenging the sufficiency of the evidence supporting an element of an offense. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008). A claim of insufficient evidence fails if 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, [w]e begin by viewing the evidence produced at trial in the light most favorable to the prosecution. United States v. Nevils, 598 F.3d 1158, 1169 (9th Cir. 2010) (en banc). Then, [m]oving to the second step of Jackson, we must consider whether the evidence, as construed above, is sufficient to allow any rational juror to conclude that the government has carried its burden of proof. Id.; federal conviction of bank fraud, in violation of 18 U.S.C. 1344, reversed for insufficient evidence that a rational trier of fact could have found that the defendant procured assets owned by a financial institution).

POST CON RELIEF - GROUNDS - FRAUD - MATERIALITY REQUIREMENT MUST BE ALLEGED IN CHARGE
United States v. Omer, ___ F.3d ___ , 2005 WL 95731 (9th Cir. Jan. 19, 2005) (bank fraud indictment under 18 U.S.C. 1344(1)) must allege materiality of the fraud), citing Neder v. United States, 527 U.S. 1 (1999) (check kiting charge requires intent to defraud bank).

POST CON - GROUNDS - FAILURE TO SPECIFY ESSENTIAL ELEMENT IN PLEA AGREEMENT
United States v. Patterson, ___ F.3d ___ (9th Cir. Aug. 20, 2004) (failure to specify amount of marijuana in defendant's plea agreement does not invalidate original plea agreement where drug quantity is not an essential element of the offense).
http://caselaw.lp.findlaw.com/data2/circs/9th/0030306p.pdf

APPEALS - FEDERAL - CHALLENGE TO SUFFICIENCY OF INDICTMENT
United States v. Bird, 359 F.3d 1185 (9th Cir. March 3, 2004) (dismissing appeal challenging whether indictment alleges sufficient facts to state offense because challenge must await final judgment after trial; appeal does not fit within "collateral order" exception to rule that only final judgments may be appealed; appeal could not be treated as mandamus because trial court did not clearly err).