How have courts treated the word "wilful" in the indictment in the context of sexual assault cases?

The indictment originally charged that the defendant knowingly and willfully did the acts charged, but willfulness in not an element of the crime involved. United States v. Freed, 401 U.S. 601, 607-608, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v.

[486 F.2d 332]

Jones, 446 F.2d 12, 13 (9th Cir. 1971). On the morning of the trial the government offered a superseding indictment which omitted the word "wilfully." The trial court refused to allow the superseding indictment, but followed the practice approved by this court in United States v. Harvey, 428 F.2d 782 (9th Cir. 1970). The court announced, from the beginning, that it would refuse to instruct on the word "wilfull" as that was mere surplusage. (R.T. 28). This does not amount to a modification of the indictment. Harvey, supra. Any prejudice to the defendant was obviated by the court when it announced its intention at the start of the trial that it would not instruct on the word "wilfull". See also United States v. Neilson, 471 F.2d 905 (9th Cir. 1973).

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