United States v. Resendiz-Ponce

PETITIONER:United States
RESPONDENT:Juan Resendiz-Ponce
LOCATION:United States District Court for the District of Colorado

DOCKET NO.: 05-998
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 549 US 102 (2007)
GRANTED: Apr 17, 2006
ARGUED: Oct 10, 2006
DECIDED: Jan 09, 2007

Atmore Baggot – Attorneys for Respondent
Michael R. Dreeben – argued the cause for Petitioner

Facts of the case

Juan Resendiz-Ponce, a Mexican national, was convicted of kidnapping and deported. When Resendiz-Ponce tried to reenter the U.S. using false identification, he was arrested and indicted for attempting to reenter the country after being deported. Resendiz-Ponce moved to dismiss his indictment because it failed to allege that he had “committed an overt act that was a substantial step toward reentering” – an essential element of the criminal offense. The trial judge denied the motion and the jury convicted Resendiz- Ponce.

On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the trial judge’s decision to deny the motion. The Ninth Circuit ruled that because the indictment failed to explicitly mention that Resendiz-Ponce had physically crossed the border and presented false identification, it was insufficient and should be dismissed. The government argued that the omission was “harmless error,” a minor mistake that would not invalidate the indictment, but the Circuit Court ruled that the omission was instead a “fatal flaw.”


Can the omission of an element of a criminal offense from a federal indictment constitute harmless error?

Media for United States v. Resendiz-Ponce

Audio Transcription for Oral Argument – October 10, 2006 in United States v. Resendiz-Ponce

Audio Transcription for Opinion Announcement – January 09, 2007 in United States v. Resendiz-Ponce

John G. Roberts, Jr.:

In case 05-998, United States versus Resendiz-Ponce, Justice Stevens has the opinion.

John Paul Stevens:

This comes to us from the United States Court of Appeals for the Ninth Circuit.

A grand jury indicted respondent on one account of illegally attempting to reenter the United States after deportation.

The indictment charge that on or about June 1, 2003, respondent knowingly and intentionally attempted to enter the United States of America at or near Saint Louis in the district of Arizona after having been previously denied admission excluded, deported and removed from the United States.

After the District Court denied respondent’s motion to dismiss the indictment for failure to allege an Overt Act a jury found him guilty.

The Court of Appeals reversed concluding that in indictment’s omission of an essential element of an offense is not subject to harmless-error analysis.

Because the indictment did not explicitly allege an Overt Act the Ninth Circuit found it to be fatally deficient.

We granted the government’s petition for certiorari to determine whether the omission of an element of a criminal offence from a federal indictment can constitute harmless-error.

After oral argument, however, we ordered the parties to file a supplemental briefs directed to the question whether the indictment against respondent did in fact omit an allegation that is required by the Fifth Amendment.

We conclude that it did not and therefore reverse without reaching the harmless-error issue.

As it was true at common law that crime of attempt contains both an intent and an Overt Act requirement.

The underlined question in this case is whether an indictment charging attempted illegal entry must specifically allege a particular Overt Act.

The government argues that the indictment implicitly includes a necessary Overt Act simply by alleging that a defendant attempted to enter the United States and we agrees not only does the word “attempt” as used in common parlance connote action rather than mere intent, but, more importantly the law has recognized for centuries that attempt necessarily encompasses both an Overt Act and intent component.

The use of the word “attempt” coupled with specification of the time and place the respondents attempted illegal reentry therefore, satisfy the two requirements for indictments that we have announced in our cases.

It fairly informed the respondent of the charges against him and it provided him with protection against future prosecution for the same offense.

Justice Scalia accordingly reversed the judgment of the Court of Appeals remand the case for further proceeding.

Justice Scalia has filed the dissenting.