Is it Structural Error to Charge Elements by Implication?

United States v. Resendiz-Ponce

Juan Resendiz-Pince, a Mexican citizen, had previously been deported, and tried to re-enter the United States by displaying photo ID and saying that he was a legal resident. When he was charged with the attempt to reenter as a removed alien the indictment failed to allege any specific overt act that he undertook. The question here is whether that failure is subject to harmless-error analysis, but the one resolved is the limits of the requirement that each element of a crime must be alleged.

At common law an attempt to commit a crime must have been accompanied by some “open deed tending to the execution of his intent,” today referred to as an “overt act” constituting a “substantial step” toward the completion of the crime. The Government argues that the allegation that Resendiz-Pince “attempted to enter the United States” implicitly alleged an overt act. The Court notes that the term “attempt” implies action, both in contemporary parlance, and specifically as a term of art in the law. In Hamling v. United States the Court declared that an indictment must contain the elements of the offense such that it (1) fairly inform a defendant of the charge against which he must defend, and (2) enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Here, the allegations in the indictment that included the time and date of the offense fulfilled the requirements. Similarly, there are many cases, the Court argues, where simply parroting the language of a federal statue would be insufficient, but where it would be sufficient when coupled only with description of the circumstances (e.g. lying to congress). This ruling, the Court argues, is bolstered by the concept of a rule in 1872, and today embodied in the Federal Rules of Civil Procedure, that an indictment should not be dismissed for formalistic or procedural reasons unless it prejudices the defendant.

Justice Scalia, dissenting, argues that attempt means both an intent and an action, and that the Government must, therefore, “fully, directly, and expressly, without any uncertainty or ambiguity” (U.S. v. Carll) allege both. In any case, he argues, a reasonable grand juror has no more reason to believe that “attempt” connotes a “substantial step” than some more minor, and legally insufficient, act. Scalia also contests the definiteness that the Court attributes to the word “attempt” as a legal term of art. By the logic of the Court, he argues, the words “knowingly and intentionally” are superfluous here, as would be “malice aforethought” in a trial for murder.

As the only Justice to find the indictment insufficient, Justice Scalia is the only Justice to reach the question of harmless-error analysis. Justice Scalia would find the error to be structural and therefore not amenable to harmless-error analysis.