opinion: UNITED STATES of America, Appellee, v. Russell ZANGGER, Appellant.
  No. 87-1657.
  United States Court of Appeals, Eighth Circuit.
  Submitted Feb. 9, 1988.
  Decided June 10, 1988.
  Robert G. Fite, Brookings, S.D., for appellant.
  Lester A. Paff, Asst. U.S. Atty., Sioux City, Iowa, for appellee.
  Before McMILLIAN, ARNOLD and FAGG, Circuit Judges.
  FAGG, Circuit Judge.
  Russell Zangger appeals his jury conviction for mailing obscene matter in violation of 18 U.S.C. § 1461.
  This case involves correspondence between Zangger, a sixty-five-year-old married man, and Jolene Edwards, a person whom Zangger believed was a twenty-nine-year-old mother of two. Among other items, Zangger mailed Edwards a videotape that contained a self-narrated segment showing Zangger masturbating. Unbeknownst to the amorous Zangger, the captivating object of his fantasy, Jolene, was the undercover identity of a male United States Postal Inspector. This videotape is the basis of Zangger’s conviction under section 1461.
  Zangger argues on appeal that his motion to dismiss the section 1461 count of the indictment should have been granted because this count omits an essential element of the charge brought against him — that the mailed matter be “obscene.” See 18 U.S.C. § 1461. The disputed portion of the indictment under which Zangger was charged provides as follows:
  The Grand Jury further charges that on or about July 3, 1986, * * * RUSSELL ZANGGER did knowingly and willingly enter into the United States Mails * * * an envelope addressed to Jolene Edwards, * * * which envelope contained visual depictions of RUSSELL ZANG-GER masturbating. Such depiction is in violation of Title 18, United States Code, Section 1461.
  Zangger contends that without specific reference to the word obscene, “the wording of the indictment contains no assurance that the grand jury deliberated or even considered whether the videotape containing the depiction of the masturbation was obscene.”
  Zangger moved before trial to dismiss the section 1461 count on this basis, and he renewed this motion following the jury’s verdict. The district court denied Zang-ger’s motions. In doing so, the court reasoned that although the count did not state any of the descriptive terms in section 1461, it identified the nature of the objectionable conduct depicted on the videotape and charged that the manner in which the conduct was depicted violated the statute.
  Zangger’s challenge to the sufficiency of the indictment is a question of law that we review de novo. United States v. Givens, 767 F.2d 574, 584 (9th Cir.), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); see also United States v. Mullen, 843 F.2d 1096, 1102 (8th Cir.1988); Fed.R.Crim.P. 7(c)(1). The indictment may set out the elements in the words of the statute itself, if “ ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ ” Ham-ling, 418 U.S. at 117, 94 S.Ct. at 2907-08 (quoting United States v. Carll, 105 U.S. (15 Otto) 611, 612, 26 L.Ed. 1135 (1882)). It is not necessary, however, for “a particular word or phrase to appear in the indictment when the element is alleged ‘in a form’ [that] substantially states the element.” Mallen, at 1102; see also United States v. Czech, 671 F.2d 1195, 1197 (8th Cir.1982). If an essential element of the charge has been omitted from the indictment, the omission is not cured by the bare citation of the charging statute. See United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir.1988) (en banc); United States v. Hooker, 841 F.2d 1225, 1227-28 (4th Cir.1988) (en banc); United States v. Camp, 541 F.2d 737, 740-41 (8th Cir.1976).
  Applying these principles for testing the sufficiency of indictments, we conclude the section 1461 charge against Zangger is insufficient. There is no dispute the tape’s obscenity is an essential element of the offense. It is also clear mere reference to section 1461 does not bring the obscenity element into the indictment. See Pupo, 841 F.2d at 1239; Hooker, 841 F.2d at 1227-28; Camp, 541 F.2d at 739-41. The indictment here defines the crime charged as mailing a videotape showing Zangger masturbating. To charge an offense recognizable under section 1461, however, the indictment must also assert the videotape was obscene, either by specifically referring to that word or to any “words of similar import.” See Pupo, 841 F.2d at 1239. Zangger’s masturbation is not unlawful under the statute; instead, its obscene quality makes it so. See Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615-16, 37 L.Ed.2d 419 (1973). Because the “statutory citation [appearing in Zang-ger’s indictment] does not ensure that the grand jury has considered and found all essential elements of the offense charged,” see Pupo, 841 F.2d at 1239, the indictment violates Zangger’s fifth amendment right to be tried on charges found by a grand jury, see Camp, 541 F.2d at 740.
  In a related argument, Zangger contends the section 1461 count of the indictment should have been dismissed because the prosecutor presenting the case did not instruct the grand jury on the “applicable law” of obscenity. We disagree. The prosecutor is under no obligation to give the grand jury legal instructions. See United States v. Kenny, 645 F.2d 1323, 1347 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956) (footnote omitted).
  In view of our determination the indictment here is insufficient, we vacate Zang-ger’s conviction and sentence on the section 1461 count and remand to the district court with instructions to dismiss this count. This dismissal is without prejudice to the government to reindict and to reprosecute Zangger if it chooses.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.