U.S. v. Cabrera-Teran

• Decision Date: 15 February 1999
• Docket Number: D,No. 97-41532,CABRERA-TERA,97-41532
• Citation: 168 F.3d 141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joelefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 141

168 F.3d 141

UNITED STATES of America, Plaintiff-Appellee, v. Joel CABRERA-TERAN, Defendant-Appellant.

No. 97-41532.

United States Court of Appeals Fifth Circuit.

Feb. 15, 1999.

Jeffery Alan Babcock, Paula Camille Offenhauser, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, H. Michael Sokolow, Renata Ann Gowie, Asst. Fed. Pub. Defender, Marissa Perez-Garcia, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Joel Cabrera-Teran ("Cabrera") appeals his conviction of and sentence for illegal reentry into the United States. He contends that the indictment fails to charge an offense and that the district court was not presented with a sufficient factual basis to sentence him on the guilty plea. Finding the indictment defective, we vacate and remand. ¹

I.

A native of Mexico, Cabrera was deported on January 10, 1996. In August 1996, he allegedly re-entered the country, then was arrested in connection with a shoplifting violation in March 1997. A Border Patrol officer promptly filed a complaint stating that Cabrera "did unlawfully, knowingly and willfully re-enter the United States from the Republic of Mexico after having been arrested and deported on or about January 10, 1996," in violation of 8 U.S.C. § 1326.

A grand jury indicted Cabrera, charging as follows: "Joel Cabrera-Teran, an alien who had previously been deported, thereafter entered the United States of America having not obtained the consent of the Attorney General of the United States for reapplication by the Defendant for admission into the United States." In September 1997, Cabrera pleaded guilty.

II.

Cabrera contends, for the first time on appeal, that the indictment fails to allege an offense because it omits the "arrest" element of illegal reentry. We agree and vacate the conviction.

A.

We review de novo a challenge to the sufficiency of an indictment. United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir.1996). An indictment's failure to charge an offense constitutes a jurisdictional defect. ² Because an indictment is jurisdictional, defendants at any time may raise an objection to the indictment based on failure to charge an offense, and the defect is "not waived by a guilty plea." Morales-Rosales, 838 F.2d at 1361-62; see also FED.R.CRIM.P. 12(b)(2). If an objection is "raised for the first time on appeal and the appellant does not assert prejudice, ... the indictment is to be read with maximum liberality finding it sufficient unless it is so defective that by any reasonable construction, it fails to charge the offense for which the defendant is convicted." Fitzgerald, 89 F.3d at 221. ³

B.

To be sufficient, an indictment must allege each material element of the offense; if it does not, it fails to charge that offense. ⁴ This requirement stems directly from one of the central purposes of an indictment: to ensure that the grand jury finds probable cause that the defendant has committed each element of the offense, hence justifying a trial, as required by the Fifth Amendment. ⁵

At the time Cabrera allegedly committed the offense, the government, to obtain a conviction under § 1326, ⁶ was required to prove "[i] that defendant was an alien, [ii] and [iii] that he was 'arrested' and 'deported' as those terms are contemplated by the statute, [iv] that he was subsequently found within this country, and [v] that he did not have consent from the Attorney General to reapply for admission." United States v. Wong Kim Bo, 466 F.2d 1298, 1302 (5th Cir.1972). ⁷ The parties agree that the indictment fails to allege that Cabrera was "arrested," an element of the offense. This would seem to end our inquiry, as the indictment fails to charge an offense, hence depriving the district court of jurisdiction to accept the guilty plea.

The government, however, attempts to evade this result by asserting that the error is technical, that Cabrera sought and reviewed records from his prior deportation hearing to determine whether he had a defense before entering his guilty plea, that the criminal complaint included the term "arrest," and that the statutory citation in the indictment informed Cabrera of the offense charged. None of these observations saves the indictment from facial deficiency.

1.

The government makes several references to the "technical" nature of the error. It is true that we are governed by practical considerations and should not reverse a conviction based on a purely technical error in the indictment. See Gaytan, 74 F.3d at 551. But the failure to allege the arrest element of the offense is not technical. As this court explained in Wong Kim Bo, the "arrest" is an essential element of the offense; we addressed to what the arrest element referred, concluding that it referenced an arrest after a deportation hearing and the issuance of a warrant of deportation (Form I-205) pursuant to 8 C.F.R. § 243.2. See Wong Kim Bo, 466 F.2d at 1304.

We further noted that INS Form I-294, "which specifically informs the alien of the criminal penalties to which he may be subjected should he thereafter reenter the country without the prior consent of the Attorney General," accompanies the issuance of the warrant of deportation. Id. We concluded that the arrest element formed an essential part of the offense, because "Congress might understandably hesitate to impose criminal sanctions for reentry where the alien does not know or realize that he has been officially deported. The arrest of an alien after an order of deportation has become final provides great assurance that the alien understands that he is being officially deported." Id. The arrest pursuant to a warrant of deportation, then, stands as an important guarantee of notice in the statute. ⁸ Calling the error technical does not make it so; by failing to allege an essential element of the crime, the indictment fails to charge an offense.

2.

The government asserts that Cabrera sought and reviewed the records of the January 10, 1996, deportation proceeding on which the government relied. Apparently, we are to believe that this fact mitigates or cancels the error in the indictment by showing that Cabrera suffered no prejudice.

We rejected a similar argument in Outler, in which the defendant challenged an indictment for several counts of unlawful dispensing of controlled substances for failing to allege the element that the prescriptions lacked legitimate medical reasons. Even though the prosecution introduced evidence substantiating this element for each count, and the jury instructions accurately included the element, see 659 F.2d at 1308, we reversed the convictions. See id. at 1314. We found the element's absence from the indictment fatal, irrespective of the government's post-indictment proffer of evidence and the defendant's notice of the offense charged.

3.

The government avers that the criminal complaint initially filed against Cabrera included the term "arrested," adequately putting him on notice of the offense charged. Again, the argument fails. First, as we have said, the indictment is jurisdictional. A facially complete complaint cannot make up for the shortcomings of the indictment; the parties cite, and we can find, no caselaw as to how it might.

Second, an indictment need not be limited to the terms of a complaint. ⁹ Because the indictment may stray from the complaint, it would be improvident to turn to the complaint to flush out the indictment. Rather, we expect that grand juries may find things that do not appear in the complaint or fail to find things that do.

Third, the central jurisdictional purpose of an indictment negates the wisdom and propriety of relying upon the complaint to provide elements missing from the indictment. The indictment ensures that the grand jury has had the opportunity to review evidence supporting, and find sufficient cause to charge a defendant with, each element of the offense before the court may entertain prosecution. ¹⁰ Only the appearance in the indictment of all of the offense's elements meets this requirement.

4.

The government relies on the indictment's citation to the statute. This presents the most challenging of the government's arguments, because at first glance, Fifth Circuit caselaw is not entirely pellucid on whether a statutory citation suffices to meet the requirement that all elements appear in the indictment. After a thorough review of the cases, we conclude that statutory citations may not stand in place of the inclusion of an element of the crime.

The government quotes United States v. Campos-Asencio, 822 F.2d 506 (5th Cir.1987), for the proposition that "[a] statutory citation cannot, by itself, substitute for setting forth the elements of the crime, but a citation may reinforce other references within the indictment." Id. at 507. ¹¹ Although we agree that a statutory citation alone is insufficient, Campos-Asencio fails to support the government's argument.

In that case, the defendant was convicted of illegal reentry on an indictment that failed to make explicit reference to the absence of the Attorney General's consent to reentry. We held that the indictment, construed liberally (as we must do when it is challenged for the first time on appeal), sufficiently included the element (if indeed it is an essential element, a question we passed on) by alleging Campos was in the United States "unlawfully" and referencing the statute. Campos-Asencio, 822 F.2d at 507.

Unlike the one in Campos-Asencio, however, the instant indictment contains no term that we may construe liberally in conjunction with the statutory citation to refer to the arrest element. The indictment lacks any reference to an arrest whatsoever.

Several other cases that have relied, in part, on statutory references fall into the same category...