dissenting:

Because the indictment in this case was inadequate, we should reverse Zavala’s conviction. I therefore respectfully dissent.

I. General Principles

The fifth amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment 1 or indictment of a Grand *529 Jury_” U.S.Const, amend. V. Inasmuch as the presentment has fallen into desuetude, the use of an adequate indictment has become a constitutional imperative. As explained by a leading treatise: “The use of a presentment is obsolete in the federal courts, and is not authorized by Rule 7 [of the Federal Rules of Criminal Procedure]. Accordingly, where the constitutional provision is applicable, an indictment must be used.” 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 121, at 338 (1982). A constitutionally sufficient indictment, consequently, must precede any conviction for a “capital, or otherwise infamous crime.” 2

The Supreme Court has declared that “an 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) (citing Hagner v. United States, 285 U.S. 427 , 52 S.Ct. 417 , 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374 , 74 S.Ct. 113 , 98 L.Ed. 92 (1953)). See also United States v. Cecil, 608 F.2d 1294, 1296 (9th Cir.1979). Thus the fifth and sixth amendments are both implicated.

An indictment may use the language of the statute in the general description of an offense. Invoking statutory language, however, does not relieve the government of its duty to furnish the defendant with a sufficient description of the charges against him, in order to allow him to prepare his defense, ensure that the prosecution is based on facts presented to the grand jury, enable the defendant to plead double jeopardy against a late prosecution, and inform the court of the facts alleged. “ ‘In an indictment upon a statute,' " the Supreme Court has said, “ ‘it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished....’” Russell v. United States, 369 U.S. 749, 765 , 82 S.Ct. 1038, 1047 , 8 L.Ed.2d 240 (1962) (quoting United States v. Carll, 105 U.S. (15 Otto) 611, 612, 26 L.Ed. 1135 (1881)). See also United States v. Keith, 605 F.2d 462, 464 (9th Cir.1979).

The Court has also stated that “it is a settled rule that a bill of particulars cannot save an invalid indictment.” Russell v. United States, 369 U.S. 749, 770 , 82 S.Ct. 1038, 1050 , 8 L.Ed.2d 240 (1962) (citations omitted). In United States v. Cecil, we explained the rationale underlying this “established rule.”

608 F.2d at 1296 . By the same token, “ ‘open file’ discovery cannot cure an invalid indictment.” Id.

“Each count in an indictment,” the District of Columbia Circuit has explained, “is regarded as if it was [sic] a separate indictment.” United States v. Fulcher, 626 F.2d 985, 988 (D.C.Cir.) (citing Dunn v. United States, 284 U.S. 390, 393 , 52 S.Ct. 189, 190 , *530 76 L.Ed. 356 (1932)), cert. denied, 449 U.S. 839 , 101 S.Ct. 116 , 66 L.Ed.2d 46 (1980). “Each count,” Fulcher stated further, “must stand on its own, and cannot depend for its validity on the allegations of any other count not specifically incorporated.” Id. (citations omitted). See generally 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 123, at 349-51 (1982). We must assess Zavala’s indictment on the basis of these principles.

II. Challenging an Indictment for the First Time on Appeal

Zavala presents his objections to the indictment for the first time on appeal. In United States v. Pheaster, 544 F.2d 353 (9th Cir.1976), cert. denied, 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977), we stated that a defendant never waives his right to challenge an indictment. We explained, nonetheless, that “indictments which are tardily challenged are liberally construed in favor of validity.” Pheaster, 544 F.2d at 361 . See also Carlson v. United States, 296 F.2d 909, 910 (9th Cir.1961). More specifically, the Supreme Court has stated that courts should uphold indictments not challenged before the verdict if “the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment.” Hagner v. United States, 285 U.S. at 433 , 52 S.Ct. at 420 (1932). We must therefore disregard errors of phrasing. But the indictment must be substantively sufficient. “Liberality in testing the sufficiency of an indictment,” we said in Carlson v. United States, “applies to matters of form and not of substance.” 296 F.2d at 912 . In United States v. Cluchette we specified further: “The true test is whether the indictment contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.” 465 F.2d 749, 753 (9th Cir.1972) (citing United States v. Mitman, 459 F.2d 451 (9th Cir.), cert. denied, 409 U.S. 863 , 93 S.Ct. 154 , 34 L.Ed.2d 111 (1972)).

Thus, when a defendant complains about the sufficiency of the indictment only after the verdict, we take a liberal view of the indictment. We read it less strictly, using a more relaxed standard than we would if the defendant had raised a timely objection. We examine the counts individually and, as long as they can each reasonably be construed as containing the “essential element[s]” we uphold the indictment, even if it “is loosely and inartificially drawn.” Hagner v. United States, 285 U.S. at 433 , 52 S.Ct. at 420. See, e.g., United States v. Pheaster, 544 F.2d at 359-63 . But we still make certain that each count “informs a defendant of the charge against which he must defend, and ... enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. at 117 , 94 S.Ct. at 2907 .

III. The 843(b) Counts

Counts three through eight of the indictment charge Zavala with violations of 21 U.S.C. § 843 (b) (1982), i.e., the use of a communication device in interstate commerce to facilitate a drug felony. The counts include the dates, times, and participants in the alleged offense but otherwise simply track the statutory language. See Maj. op. at 525-26 (reprinting indictment). The indictment entirely fails to identify the proscribed substance involved or the alleged offense that was facilitated through the use of the communication device. In response to motions by the defense, the trial court ordered the government to issue a bill of particulars informing Zavala that the illegal substance involved was cocaine and the offenses facilitated were the possession and conspiracy asserted elsewhere in the indictment.

As I have already explained, we cannot uphold the indictment unless these counts are separately sufficient. United States v. Fulcher, 626 F.2d at 988 . Moreover, repeating statutory language will not in and of itself salvage an inadequate indictment. United States v. Russell, 369 U.S. at 765 , 82 S.Ct. at 1047 . Finally, the government may not by means of a bill of particulars salvage an invalid indictment. Id. at 770 , 82 S.Ct. at 1050 .

*531 The various section 843(b) counts in the indictment state that at a specified date and time, specified persons violated 21 U.S. C. § 843(b) in that they “unlawfully, knowingly and intentionally did use a telephone in committing, causing and facilitating the commission of felony violations of Title 21, United States Code, Sections 963 , 952, 846, and 841(a)(1)_” Maj. op. at 525 (reprinting indictment). The counts provide no further details.

Section 843(b) makes it unlawful intentionally to use a communications facility to commit, cause or facilitate any felony defined in 21 U.S.C. §§ 801-970 (1982). The indictment specifies that Zavala used the telephone to violate, inter alia, sections 846 and 841(a)(1). Section 846 declares it illegal to attempt to commit, or conspire to commit, any offense defined in 21 U.S.C. §§ 801-904 . Thus, the indictment also charges Zavala with using the telephone to attempt to commit, or to conspire to commit, any of the offenses listed in that portion of Title 21. By combining the references to section 841(a)(1) in the indictment and in section 846, one can conclude that Zavala was charged with using a telephone to violate section 841(a)(1), or to attempt to commit a violation of section 841(a)(1), or to conspire to commit a violation of section 841(a)(1).

Section 841(a)(1) lists six different unlawful acts: (i) manufacturing of a controlled substance, (ii) distribution of a controlled substance, (iii) dispensing a controlled substance, (iv) possession of a controlled substance with intent to manufacture a controlled substance, (v) possession of a controlled substance with intent to distribute, and (vi) possession of a controlled substance with intent to dispense. Schedules I and II to section 812, include approximately 140 controlled substances. The section 843(b) counts do not specify which controlled substance was involved.

Simple arithmetic shows that each section 843(b) count in the indictment, insofar as it invokes sections 846 and 841(a)(1), refers to at least 2,520 separate offenses, without indicating with which one(s) Zavala is being charged. The Seventh Circuit, faced with precisely this type of problem, held that an indictment under section 843(b) is insufficient unless it specifies the controlled substance involved as well as the precise felony under 841(a)(1) that was furthered by use of the telephone. United States v. Hinkle, 637 F.2d 1154, 1157-58 (7th Cir.1981); see United States v. Keck, 773 F.2d 759, 763-64 (7th Cir.1985). The Seventh Circuit relied on the Supreme Court’s decisions in Hamling and Russell in reaching its result.

The counts challenged here, like those in Hinkle , “[were] framed in the language of 21 U.S.C. § 843 (b) which defendant is charged with violating: they specify which communication device the defendant used, the telephone, and they specify the dates on which [he] used it.” 637 F.2d at 1157 . The Hinkle court thus explained the problem with such an indictment.

Id. at 1158 . The Seventh Circuit therefore held, correctly in my view, “that an indictment issued for violations of 21 U.S.C. 843(b) must specify the type of communication facility used, the date on which it was used, the controlled substance involved and some sort of statement of what is being facilitated with that controlled substance which constitutes a felony.” Id. See also United States v. Keck, 773 F.2d at 763-64 . Cf. United States v. Ramos, 666 F.2d 469, 474 (11th Cir.1982) (“[T]he indictment’s tracking of the statutory language, supplemented by precise allegations of the time and place of the criminal activity, the names of the participants and the controlled substance involved, would appear entirely sufficient.”). Inasmuch as the counts here do not specify the controlled substance involved nor the felony facilitat *532 ed by the use of the telephone, the indictment is equally insufficient. 3

The majority relies on United States v. Keck, 773 F.2d at 763-64 , in which the court rejected a claim that an indictment was insufficient. Maj. op. at 626. However, in Keck , as the majority acknowledges, the counts in question not only specified the felony alleged but also identified by reference the controlled substance involved. Neither element is present in the counts we are considering in our case. The majority contends that the defendant can supply those missing elements by analyzing other parts of the indictment. Thus, the majority dismisses the absence from those counts of (1) the statement of the felony alleged and (2) reference to the drug involved as “a defect of form, not substance” which should be overlooked. Maj. op. at 526. While this glib characterization has obvious appeal, it is wholly inconsistent with the fundamental requirements governing indictments and their separate counts set forth in, inter alia, Hamling v. United States, and United States v. Fulcher.

IV. Charging in the Disjunctive

The section 843(b) counts violate in the extreme the constitutional prohibition against charging a defendant disjunctively. For these counts charge Zavala in the disjunctive with over two thousand different acts through which the offense therein described may be committed. The indictment thus deprived Zavala of the fundamental rights that the fifth amendment guarantees him.

If an offense can be committed in more than one way, an indictment is insufficient if it charges in the disjunctive. As noted in a leading treatise, “if the indictment or information alleges the several acts in the disjunctive it fails to inform the defendant which of the acts he is charged with having committed, and it is insufficient.” 1 C. Wright, swpra, § 125 at 373-74 (footnote omitted). In other words, a court must invalidate an indictment containing a count that states that the defendant committed the offense in one manner or that he committed it in a different manner.

Even when the underlying statute lists disjunctively the different means through which an offense may be committed, the indictment must list them conjunctively. 4 “Once it is determined that the statute defines but a single offense,” we stated in United States v. UCO Oil Co., “it becomes proper to charge the different means, denounced disjunctively in the statute, con-junctively in each count of the indictment.” 546 F.2d 833, 838 (9th Cir.1976) (citing United States v. Alsop, 479 F.2d 65, 66 (9th Cir.1973)), cert. denied, 430 U.S. 966 , 97 S.Ct. 1646 , 52 L.Ed.2d 357 (1977). As explained in Wharton’s Criminal Procedure, “it is fatal for an indictment or information to charge disjunctively in the words of the statute, if the disjunctive renders it uncertain as to which alternative is intended.” 2 Wharton’s Criminal Procedure § 291 (12th ed. 1975) (footnote omitted). Wharton’s reports that even the use of “and/or” is inadequate. Id. (footnote omitted).

It appears to me that the indictment in this case impermissibly charges in the disjunctive. A violation of section 843(b) can be accomplished in many different ways. The indictment does no more than refer to sections 841(a)(1) and 846. Thus, one must *533 read it as incorporating the words of sections 841(a)(1) and 846 by reference. Sections 841(a)(1) and 846, however, are written in the disjunctive: The defendant conspired to commit, or attempted to commit; the defendant manufactured, or distributed, or dispensed, etc. The section 843(b) counts, hence, charge Zavala disjunctively with over two thousand acts. The counts thus represent a flagrant violation of the constitutional prohibition against charging in the disjunctive.

V. Zavala Did Not Waive His Claim Due to Delay

My colleagues do not contend with any conviction that they would have upheld the 843(b) counts in the indictment had Zavala raised his claim prior to this appeal. In fact they make no such assertion at all. Instead, they hold only that in the context of an indictment challenged for the first time on appeal, it is sufficient.

We cannot disregard the serious deficiencies of the present indictment simply because Zavala raises his claim for the first time on appeal. As discussed supra, a defendant never waives his right to challenge an indictment. We, of course, interpret liberally an indictment belatedly challenged but this only means that we will disregard errors of form and that we will give a broad reading to the language employed. It does not mean that the indictment may omit elements that are deemed essential to its constitutionality. An indictment substantively insufficient cannot stand, even when the defendant fails to bring the issue to the attention of the trial court. See Carlson v. United States, 296 F.2d at 912 .

Here the section 843(b) counts of indictment fail to set forth essential elements. No reading of their language, no matter how broad or relaxed can supply those missing terms. The problem here cannot be solved by using one approach or another to construing the charging document. Thus the majority’s reliance on United States v. Pheaster is wholly misplaced. The indictment here cannot stand, notwithstanding appellant’s failure to challenge it below, because it does not “sufficiently apprise[ ] the defendant of what he must be prepared to meet.” United States v. Cluchette, 465 F.2d at 753 (citing United States v. Mitman, 459 F.2d 451 (9th Cir.), cert. denied, 409 U.S. 863 , 93 S.Ct. 154 , 34 L.Ed.2d 111 (1972)). As I have pointed out supra, an indictment charging violations of section 843(b) is not constitutionally sufficient unless it specifies the particular felony being facilitated as well as the controlled substance involved. Here, the counts in effect allege more than two thousand acts in the disjunctive. These deficiencies deprived Zavala of his right to definite notice of the precise charges against him as well as of his right to plead double jeopardy in any subsequent prosecution. They render the indictment insufficient even under the most liberal of readings.

Conclusion

The 843(b) counts impermissibly charge in the disjunctive and fail to mention the particular felony facilitated and the controlled substance involved. Inasmuch as these defects are clearly substantive, those counts of the indictment should be invalidated even though Zavala raised his claim for the first time on appeal.

. A presentment "is the notice taken by a grand jury of any offense from their own knowledge *529 or observation, without any bill of indictment laid before them at the suit of the king.” 4 W. Blackstone, Commentaries *301.

. Over a century ago, the Supreme Court stated: "For more than a century, imprisonment at hard labor in the State prison or penitentiary or other similar institution has been considered an infamous punishment in England and America.” Ex Parte Wilson, 114 U.S. 417, 428 , 5 S.Ct. 935, 940 , 29 L.Ed. 89 (1885). The Advisory Committee on the Federal Rules of Criminal Procedure concluded more specifically that "any offense punishable by imprisonment for a term of over one year is an infamous crime.” Fed.R.Crim.P. 7 advisory committee note.

. In United States v. Adams, the Third Circuit held that the section 843(b) indictment was sufficient under Hamling when it stated the precise date and time of the phone call, the participants, and the precise felonies facilitated, although the controlled substance involved was not stated. 759 F.2d 1099 , 1116-17 (3d Cir.1985), cert. denied, 474 U.S. 906 , 106 S.Ct. 275 , 88 L.Ed.2d 236 (1985). The indictment before us does not even meet the weaker test set forth in Adams. For it "merely charged facilitation of an offense under 21 U.S.C. 841(a)(1) without identifying which of six types of acts prohibited by that section the defendant had facilitated.” Id. at 1117.

. At trial, proving that the defendant committed the offense through any of the means listed will suffice to secure a conviction. As we held in United States v. Jones: “Where a crime, denounced disjunctively in a statute, is charged in the conjunctive, the proof of any one of the allegations will sustain the conviction.” 491 F.2d 1382, 1384 (9th Cir.1974) (citations omitted). At the same time, charging in the conjunctive bars "further prosecution in respect of any of the matters embraced by [the court].” Crain v. United States, 162 U.S. 625, 636 , 16 S.Ct. 952, 955 , 40 L.Ed. 1097 (1896).