Issues
If the government fails to include an element of a crime in its indictment, can the court consider the omission harmless error or does the omission require automatic reversal on appeal.
In 2002, an Immigration Naturalization Service agent discovered that Juan Resendiz-Ponce was in the United States illegally and had him deported. A year later border patrol agents detained Resendiz-Ponce after he presented false documentation and falsely stated his intended destination. The United States brought suit against Resendiz-Ponce for attempting to re-enter the country after having been previously deported, and he was convicted. While the indictment alleged that Resendiz-Ponce had attempted to re-enter the United States illegally, it did not allege that he presented false documents, made false statements, or performed any other act associated with his alleged attempt. Resendiz-Ponce appealed his conviction, claiming that the indictment’s failure to allege an act introduced a fatal flaw into his trial. The United States Court of Appeals for the Ninth Circuit agreed with this argument and reversed the conviction. In reviewing the case, the Supreme Court will determine whether the omission of an element from a federal indictment requires automatic reversal on appeal.
Questions as Framed for the Court by the Parties
Whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error.
Facts
Maricopa County Superior Court in Arizona convicted Juan Resendiz-Ponce of kidnapping his common-law wife in August, 2002, and sentenced him to 45 days in county jail. United States v. Resendiz-Ponce, 425 F.3d 729, 729 (9th Cir. 2005). While Resendiz-Ponce was serving his sentence, an officer with the Immigration and Naturalization Service (INS) determined that Resendiz-Ponce had been deported from the United States previously and that he was in the United States illegally when he was arrested. Id. at 730. Resendiz-Ponce was deported the same day. Id.
In June 2003, Resendiz-Ponce presented his cousin’s green card and driver’s license to a border agent in Arizona, and claimed to be a legal resident alien en route to California. See Petition for a Writ of Certiorari at 2-3. The border agent noticed that Resendiz-Ponce did not resemble the photograph on either piece of identification, so she referred him to a secondary inspection—an additional screening interview that border agents conduct if they suspect a person is attempting to enter the United States illegally. Id. at 2. During the secondary inspection, Resendiz-Ponce claimed to be headed towards Phoenix, Arizona. Id. at 3. Based on the discrepancy between his comments during the primary and secondary inspections, and the dissimilarity between Resendiz-Ponce and his identification photo, the agents detained him. See Resendiz-Ponce, 425 F.3d at 730. He was later indicted by a grand jury in the District of Arizona for attempting to re-enter the United States in violation of 8 U.S.C. § 1326. Id.
The government prosecuted Resendiz-Ponce under § 1326(a), which makes it a crime for aliens who have been previously deported from the country to enter or attempt to enter the United States. Id. at 731. In addition, the government sought a harsher sentence under § 1326(b) because Resendiz-Ponce had previously been convicted of an aggravated felony. Id.
The indictment alleged that Resendiz-Ponce “knowingly and intentionally attempted to enter the United States of America . . . after having been previously . . . deported . . . from the United States” without first obtaining “the express consent of the Secretary of the Department of Homeland Security.” Id. The indictment did not allege any of the specific, overt acts associated with an attempt to illegally re-enter. Id.
Before trial, Resendiz-Ponce moved unsuccessfully to dismiss the indictment based on procedural flaws. Petition for a Writ of Certiorari at 3. One of these flaws, Resendiz-Ponce contended, was that the indictment “fail[ed] to allege an essential element, an overt act, or to state the essential facts” of the case against him. Id. at 4. At trial, Resendiz-Ponce did not contest the evidence that he had presented false documents and that he had falsely stated his destination. Id. The judge instructed the jury that the government had to prove that Resendiz-Ponce committed an overt act, despite the indictment’s failure to allege an overt act. Id. The jury convicted Resendiz-Ponce of attempting to illegally re-enter the United States, and the court applied the sentencing enhancement in § 1326(b), which increases the maximum sentence for illegal reentry from 2 to 20 years if the defendant has been previously convicted of an aggravated felony. Resendiz-Ponce, 425 F.3d at 731 The court sentenced Resendiz-Ponce to 63 months in prison. Id. On appeal, the United States Court of Appeals for the Ninth Circuit reversed the conviction because the indictment failed to explicitly allege that Resendiz-Ponce committed an overt act that constituted a “substantial step” towards illegally re-entering the United States. See Id. at 733.
Analysis
The Fifth Amendment to the United States Constitution declares, in part, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The Sixth Amendment asserts that in criminal prosecutions, the defendant has the right to know the nature of the accusations against him. Under Rule 7(c)(1) of the Federal Rules of Criminal Procedure, an indictment must be “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).
Error in grand jury proceedings may be categorized as structural error, which is an error that inevitably makes a trial unfair and so requires automatic reversal. Alternatively, errors may be subject to harmless-error review, in which an error is disregarded unless it affects substantive rights or would have changed the outcome of the case. Fed. R. Crim. P. Rule 52(a). For instance, Thus, in Vasquez v. Hillery, the Supreme Court held in that race discrimination in grand jury selection was structural error, 474 U.S. 254, 262 (1986), but in United States v. Mechanik the Court held that a violation of Rule 6(d), involving who may be present at a grand jury proceeding, was only subject to harmless-error analysis. 475 U.S. 66 (1986).
The fact that an error is constitutional does not necessarily render it a structural error requiring reversal; in fact, the Court recognizes that most constitutional errors can be harmless, and has applied harmless-error analysis to many different types of errors. Arizona v. Fulminante, 499 U.S. 279, 306 (1991). In general, as the Court stated in Johnson v. U.S., it has perceived structural errors only in a narrow class of cases. 520 U.S. 461, 468 (1997). However, "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, such as coerced confessions or denial of right to counsel. Chapman v. California, 386 U.S. 18, 23 (1967).
The United States argues that the omission of an overt act in the indictment, although a constitutional error, should not be classified as structural. Petition for a Writ of Certiorari at 7. The United States notes that the only recognized structural error in grand jury proceedings is that of racial discrimination in jury selection. Brief for the United States at 8. The United States also observes that omitting an offense element from instructions to a petit jury does not constitute structural error, and suggests that it would be unreasonable to hold grand jury proceedings to a higher standard. Id. at 17. After all, a grand jury affords less protection in general to the defendant, in part because the proceedings determine not the defendant’s guilt, but only that the defendant may be tried for the crime Id. at 15–16. Furthermore, the United States asserts that the error involved in this case, omission of an overt act element from the indictment, must have been harmless because the jury convicted Resendiz-Ponce after receiving instruction that it needed to find beyond a reasonable double that Resendiz-Ponce committed an overt act in order to convict. Id. at 9. Even if it is possible that the grand jury would not have found probable cause regarding an overt act by Resendiz-Ponce, perhaps because of failure to present certain evidence or because certain evidence had not been discovered, the United States argues that reversal would be pointless. Id. at 38. Since the petit jury obviously considered the evidence sufficient to convict the defendant, one might suppose the government would have no difficulty in obtaining a second conviction. Id.
Resendiz-Ponce, on the other hand, argues that the indictment’s omission of an overt act must be a structural error, and therefore requires automatic reversal. Brief of Respondent at 7–8. Because the indictment failed to specify an overt act, Resendiz-Ponce argues, the indictment fell short of providing the notice that Resendiz-Ponce required in order to defend effectively against the charges. Id. at 8. For instance, the indictment failed to inform Resendiz-Ponce whether the crime against which he had to defend involved providing false identification, attempting to deceive the border guards with respect to his destination, or crossing to the second security checkpoint. Resendiz-Ponce, 425 F.3d at 731.
In addition, Resendiz-Ponce points out that the Ninth Circuit agreed with Resendiz-Ponce’s argument that the failure of the indictment to include an overt act meant that the grand jury was permitted to reach a decision on an element with which he was never charged, and reversed his conviction. Id. at 732. The court reasoned in part that “[f]ailure to allege an essential element of the offense is a fatal flaw not subject to mere harmless error analysis.” Id. The Ninth Circuit held that the indictment’s failure to allege a specific overt act by Resendiz-Ponce deprived him of the proper notice required by the Constitution as well as by Rule 7. Id. at 733.
Although a few particular constitutional errors are structural, the Supreme Court recently reiterated that as long as “the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption” that any errors are not structural, but rather are amenable to harmless-error analysis. Washington v. Recuenco, 126 S.Ct. 2546, 2551 (2006). To qualify as structural, the constitutional error must render a trial “fundamentally unfair” or an unreliable “vehicle for determining guilt or innocence.” Neder v. U.S., 527 U.S. 1, 8 (1999). However, under a rule established in Russell v. United States, it is never appropriate for the court to “make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment.” 369 U.S. 749, 770 (1962). If the Court determines that the failure of the indictment to allege a specific overt act of attempted re-entry did not “infect the entire trial process,” the Court will deem the error to be subject only to harmless-error analysis, and will reverse the decision of the Ninth Circuit. In so doing, the Court would have to confine its holding in Russell to a narrow set of circumstances.
Discussion
The Fifth Amendment to the United States Constitution declares, in part, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” In practice, before a suspect can be charged with a federal crime, a grand jury must evaluate evidence presented by the prosecutor and decide whether the evidence is sufficient to try the suspect for the alleged crime. Administrative Office of the United States Courts, Handbook for Federal Grand Jurors 2. If the grand jury decides the evidence is insufficient, charges against the suspect are dismissed without a trial. Id. If the grand jury finds the evidence sufficient, it issues an indictment that formally lists the charges against the suspect. Id. The purpose of an indictment is to give suspects adequate notice of the case against them and to permit them to develop a defense against each of the charges. See Hamling v. U.S., 418 U.S. 87, 117 (1974).
The Sixth Amendment of the Constitution grants defendants the right to know essential elements of each offense charged so that they will have enough information to understand the charges against which they must defend. U.S. Const. amend. VI. Rule 7 of the Federal Rules of Criminal Procedure provides procedural safeguards that reflect that constitutional concern. Rule 7(c)(1) requires that an indictment must be “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). However, these procedural requirements must be enforced in a manner that allows prosecutors to indict defendants without listing every detail of the cases against them. As part of this balance, Rule 7(c)(1) allows an indictment to “allege that the means by which the defendant committed the offense are unknown.” Id. Moreover, in United States v. Hinton, the Ninth Circuit held that an indictment “should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” 222 F.3d 664, 672 (9th Cir. 2000).
The issue in this case concerns the indictment’s failure to allege an “overt act” as an element of the crime. The statute under which Resendiz-Ponce was charged requires the prosecutor to prove that Resendiz-Ponce committed an overt act that was a substantial step in his attempt to re-enter the country. Resendiz-Ponce, 425 F.3d at 733. Because the Constitution requires that a defendant be charged with all essential elements of the offense, Resendiz-Ponce’s indictment under § 1326 must allege that he committed an overt act. Id. The indictment could have alleged that Resendiz-Ponce presented false documents or that he made false statements to border control agents; any of these acts could be construed as a substantial step towards attempting to re-enter the country. Id. The Ninth Circuit ruled that the failure of the indictment to allege an overt act was a structural error or “fatal flaw” that required automatic reversal of Resendiz-Ponce’s conviction. Id.
The United States, on appeal, argues that an indictment that omits an element does not necessarily contain a structural error, which would make the case “fundamentally unfair.” Brief for the United States at 7. Omissions can be harmless if they do not affect the outcome of the case or interfere with the defendant’s substantive rights. Id. An omission should be deemed harmless if, as in Resendiz-Ponce’s case, an appeals court could find it clear beyond a reasonable doubt that a grand jury could have found the evidence sufficient to prove the omitted element. Id. at 7-8. The government argues that although the grand jury serves a protective function, it is ultimately the trial jury, which acquits or convicts based on the evidence presented at trial, that provides defendants with meaningful protection. Id. at 8.
Resendiz-Ponce argues that because the indictment frames the issues for trial, an indictment that lacks an essential element of the offense is structurally flawed because it lacks “any structure at all.” Brief of Respondent at 8. Such an error is “fundamentally unfair” because it does not inform the defendant of the charges against him; rather the defendant must hazard a guess at what overt acts the grand jury might have found had the prosecutor presented them. Id. The Ninth Circuit shared Resendiz-Ponce’s view that such error is structural, noting that the defendant both has a right to know which acts the prosecutor intends to prove as well as a right to have the grand jury decide whether to charge those acts. Resendiz-Ponce, 425 F.3d at 733.
If the Court rules that the omission of any element of an offense from an indictment is a structural error, then police and prosecutors will be forced to be extremely cautious when preparing indictments, lest a court view an omitted detail as constituting an essential element and later reverse the conviction. If, however, the Court holds that the omission of an essential element in an indictment is amenable to harmless-error analysis, those charged with crimes may lose some measure of security and constitutional protection. If, in hindsight, it appears that the grand jury would have found sufficient evidence to support a charged element, a conviction could withstand appeal although the defendant was never actually charged with an element of the crime.
Conclusion
A central purpose of a federal indictment is to put the accused on notice of the case against him and to permit him to construct an adequate defense. In order to ensure that indictments under § 1326 carry out this purpose, the Ninth Circuit has required that they explicitly allege overt acts associated with attempted reentry into the United States. The Supreme Court’s decision in this case will weigh the importance of this procedural safeguard against the cost of repeating trials where the outcome of the trial was not influenced by the omission.
Written by: Kelly Cooke & Heidi Guetschow
Acknowledgments
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