United States v. Resendiz-Ponce

Decision Date09 January 2007
Docket NumberNo. 05-998.,05-998.
Citation549 U.S. 102,166 L.Ed.2d 591,75 USLW 4029,127 S.Ct. 782
PartiesUNITED STATES, Petitioner, v. RESENDIZ-PONCE.
CourtU.S. Supreme Court

OPINION TEXT STARTS HERE

Syllabus*

Respondent, a Mexican citizen, was charged with violating 8 U.S.C. § 1326(a) by attempting to reenter the United States after having been deported. The District Court denied his motion to have the indictment dismissed because it did not allege a specific overt act that he committed in seeking reentry. In reversing, the Ninth Circuit reasoned that the indictment's omission of an overt act was a fatal flaw not subject to harmless-error review.

Held: Respondent's indictment was not defective, and, thus, this Court need not reach the harmless-error issue. While the Government does not dispute that respondent cannot be guilty of attempted reentry under § 1326(a) unless he committed an overt act qualifying as a substantial step toward completing his goal or that [a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350, it contends that the instant indictment implicitly alleged that respondent engaged in the necessary overt act by alleging that he “attempted” to enter the country. This Court agrees. Not only does “attempt” as used in common parlance connote action rather than mere intent, but, more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements. Thus, an indictment alleging attempted reentry under § 1326(a) need not specifically allege a particular overt act or any other “component par[t] of the offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590. It was enough for the indictment to point to the relevant criminal statute and allege that respondent “intentionally attempted to enter the United States ... at or near San Luis ... Arizona” [o]n or about June 1, 2003.” App. 8. An indictment has two constitutional requirements: [F]irst, [it must] contai[n] the elements of the offense charged and fairly infor[m] a defendant of the charge against which he must defend, and, second, [it must] enabl[e] him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling, 418 U.S., at 117, 94 S.Ct. 2887. Here, the use of the word “attempt,” coupled with the specification of the time and place of the alleged reentry, satisfied both. Respondent's argument that the indictment would have been sufficient only if it alleged any of three overt acts performed during his attempted reentry-that he walked into an inspection area; that he presented a misleadingidentificationcard; or that he lied to the inspector-is rejected. Respondent is correct that some crimes must be charged with greater specificity than an indictment parroting a federal criminal statute's language, see Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, but the Russell Court's reasoning suggests that there was no infirmity in the present indictment, see id., at 764, 762, 82 S.Ct. 1038, and respondent's indictment complied with Federal Rule of Criminal Procedure 7(c)(1), which provides that an indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Pp. 787 - 790.

425 F.3d 729, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, SOUTER, THOMAS, GINSBURG, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 790.

Michael R. Dreeben, Washington, DC, for petitioner.

Atmore L. Baggot, Apache Junction, Arizona, appointed by this Court, for respondent.

Jeffrey T. Green, Devon A. Corneal, Sidley Austin LLP, Washington, DC, Atmore L. Baggot, Counsel of Record, Apache Junction, AZ, Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for respondent.

Paul D. Clement, Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for petitioner.

Atmore Baggot, CJA Counsel of Record, Apache Junction, Arizona, for respondent.

Paul D. Clement, Solicitor General, Counsel of Record, Alice S. Fisher, Assistant Attorney General, Michael R. Dreeben, Kannon K. Shanmugam, Assistant to the Solicitor General, Nina Goodman, Attorney, Department of Justice, Washington, D.C., for petitioner.

Justice STEVENS delivered the opinion of the Court.

A jury convicted respondent Juan Resendiz-Ponce, a Mexican citizen, of illegally attempting to reenter the United States. Because the indictment failed to allege a specific overt act that he committed in seeking reentry, the Court of Appeals set aside his conviction and remanded for dismissal of the indictment. We granted the Government's petition for certiorari to answer the question whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. 547 U.S. 1069, 126 S.Ct. 1776, 164 L.Ed.2d 515 (2006).

Although the Government expressly declined to “seek review of the court of appeals' threshold holdings that the commissionof an overt act was an element of the offense of attempted unlawful reentry and that the indictment failed to allege that element,” Pet. for Cert. 9, n. 3, [i]t is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case,’ Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905)). For that reason, after oral argument we ordered the parties to file supplemental briefs directed to the question whether respondent'sindictment was in fact defective. We conclude that it was not and therefore reverse without reaching the harmless-error issue.

I

Respondent was deported twice, once in 1988 and again in 2002, before his attempted reentry on June 1, 2003. On that day, respondent walked up to a port of entry and displayed a photo identification of his cousin to the border agent. Respondent told the agent that he was a legal resident and that he was traveling to Calexico, California. Because he did not resemble his cousin, respondent was questioned, taken into custody, and ultimately charged with a violation of 8 U.S.C. § 1326(a).1 The indictment alleged:

“On or about June 1, 2003, JUAN RESENDIZ-PONCE, an alien, knowingly and intentionally attempted to enter the United States of America at or near San Luis in the District of Arizona, after having been previously denied admission, excluded, deported, and removed from the United States at or near Nogales, Arizona, on or about October 15, 2002, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission.

“In violation of Title 8, United States Code, Sections 1326(a) and enhanced by (b)(2).” App. 8.

Respondent moved to dismiss the indictment, contending that it “fail[ed] to allege an essential element, an overt act, or to state the essential facts of such overt act.” Id., at 12. The District Court denied the motion and, after the jury found him guilty, sentenced respondent to a 63-month term of imprisonment.

The Ninth Circuit reversed, reasoning that an indictment's omission of “an essential element of the offense is a fatal flaw not subject to mere harmless error analysis.” 425 F.3d 729, 732 (2005). In the court's view, respondent's indictment was fatally flawed because it nowhere alleged “any specific overt act that is a substantial step” toward the completion of the unlawful reentry.2Id., at 733. The panel majority explained:“The defendant has a right to be apprised of what overt act the government will try to prove at trial, and he has a right to have a grand jury consider whether to charge that specific overt act. Physical crossing into a government inspection area is but one of a number of other acts that the government might have alleged as a substantial step toward entry into the United States. The indictment might have alleged the tendering a bogus identification card; it might have alleged successful clearance of the inspection area; or it might have alleged lying to an inspection officer with the purpose of being admitted .... A grand jury never passed on a specific overt act, and Resendiz was never given notice of what specific overt act would be proved at trial.” Ibid.

Judge Reavley concurred, agreeing that Ninth Circuit precedent mandated reversal. If not bound by precedent, however, he would have found the indictment to be “constitutionally sufficient” because it clearly informed respondent “of the precise offense of which he [was] accused so that he [could] prepare his defense and so that a judgment thereon [would] safeguard him from a subsequent prosecution for the same offense.” Ibid.

II

At common law, the attempt to commit a crime was itself a crime if the perpetrator not only intended to commit the completed offense, but also performed ‘some open deed tending to the execution of his intent.’ 2 W. LaFave, Substantive Criminal Law § 11.2(a), p. 205 (2d ed.2003) (quoting E. Coke, Third Institute 5 (6th ed. 1680)); see Keedy, Criminal Attempts at Common Law, 102 U. Pa. L. Rev. 464, 468 (1954) (noting that common-law attempt required “that some act must be done towards carrying out the intent”). More recently, the requisite “open deed” has been described as an “overt act” that constitutes a “substantial step” toward completing the offense. 2 LaFave, Substantive Criminal Law § 11.4; see ALI, Model Penal Code § 5.01(1)(c) (1985) (defining “criminal attempt” to include “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”); see also Braxton v. United States, 500 U.S. 344, 349, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991) (“For Braxton to be guilty of an attempted killing...

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