173727P.pdf   07/05/2019  United States  v.  Samantha Flute
   U.S. Court of Appeals Case No:  17-3727
   U.S. District Court for the District of South Dakota - Aberdeen   
   [PUBLISHED] [Shepherd, Author, with Colloton and Stras, Circuit Judges] 
   Criminal case - Criminal law. After the death of defendant's newborn baby 
   due to combined drug toxicity, the government charged her with one count 
   of involuntary manslaughter committed in Indian Country in violation of 18 
   U.S.C. Sections 1112 and 1153. The district court dismissed the indictment 
   on the ground the charged offense did not cover her or her conduct because 
   prosecution was barred by 18 U.S.C. Sec. 1841 which bars prosecution of 
   any woman with respect to her unborn child. Held: defendant's "born alive" 
   child falls within the class of victims protected by the federal 
   involuntary manslaughter statute, regardless of whether he was or was not 
   a human being when he sustained injuries in utero; the plain language of 
   Section 1112 and the Born Alive Infants Protection Act clearly encompasses 
   defendant and her conduct, and the district court erroneously relied on 
   the Unborn Victims of Violence Act - 18 U.S.C. Sec. 1841 - to exclude 
   defendant's conduct from the reach of Section 1112; dismissal reversed and 
   the matter remanded with directions to reinstate the indictment; on remand 
   the district court may take up an as-applied due process challenge it did 
   not reach in light of its ruling on defendant's motion to dismiss. Judge 
   Colloton, dissenting.