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Supreme Court Decision Update - US v. Resendiz-Ponce

The Supremes hit us with three new decisions today. In this first one, US v. Resendiz-Ponce (PDF of the opinion), they had to look at whether an indictment against an illegal alien included everything it should have. Although, as the dissent points out, that’s not what they originally said they wanted this case for. But anyway….

QuizLaw Analysis: In an 8-1 decision, the Supremes decided that, as far as criminal indictments are concerned, an allegation that someone “attempted” a crime includes an allegation that they intended to commit the crime and that they took some substantial step in furtherance of committing the crime. As Scalia points out in his dissent, the Court ignores the issue they actually granted cert on, whether a fault in an indictment gets “harmless error” review. The majority just doesn’t seem to care. And this makes Scalia sad.

So we’re talking illegal immigrants? Well, we’re talking one illegal immigrant, in this instance. In 1988, and again in 2002, Juan Resendiz-Ponce (let’s call him JRP) was deported, given the ol’ heave-ho. On June 1, 2003, he tried to get into the country again, using his cousin’s photo ID when he was stopped at an inspection area. JRP got busted and was taken into custody, charged with violations of a federal law banning the reentry of previously-removed aliens.

The original indictment against JRP, which is what the beef in this case is all about, accused him of knowingly and intentionally attempting to get into the US after having been thrown out, without any permission from the Department of Homeland Security. JRP argued that the indictment should be thrown out because it doesn’t specifically say that he took some overt act in furtherance of trying to illegally get into the country. And since that overt act is an essential element of the crime, according to JRP, this indictment is no good. The District Court told JRP to get bent, and threw him in the clink for 63 months. But the Ninth Circuit reversed, agreeing with JRP’s position. According to the Ninth, an overt act is an essential element to the crime, and the failure to include the essential element in the indictment is a “fatal flaw.” By not including the act, JRP wouldn’t know what specific act the Feds would try to prove at trial (that is, they could’ve been going after his action of stepping into the US, or using the bogus ID, or lying to the inspection officer, etc.).

Ninth Circuit, you say? I got a ten-spot that they’re getting overturned! Right you are. In an 8-1 majority opinion penned by Justice Stevens, and joined by everyone but Scalia, the case was reversed and remanded because, according to Stevens and company, the indictment simply wasn’t defective.

Why wasn’t the indictment flawed? Well, Stevens agrees that an essential element of the underlying crime is that the defendant must have taken some substantial step towards completing his goal of reentering the country, and Stevens also agrees that an indictment must include every essential element of the charged crime. But he thinks that, by saying that JRP “attempted” to get into the US, the indictment did, in fact, include the overt act. So all is good, as far as Stevens is concerned.

He argues that, in daily usage, “attempt” is understood to mean more than intent - it’s understood to mean intent and action. Plus, Stevens says that the law has often used “attempt,” for a long time, to mean intent and an overt act.

And just to go a little further, let’s look at the constitutional requirements of an indictment. They must include the elements of the offense, so the defendant knows what’s coming, and they must be clear enough so the defendant can use the indictment and an acquittal or conviction to avoid a second prosecution for the same crime. Stevens says we’ve got both of these elements here because the indictment included the time and place of the alleged reentry. In fact, this is even better than just listing an overt act. For example, if JRP tried to get in several times, and the indictment just said the act was trying to pass through the station, it wouldn’t say which time, so this is more specific, you see.

Now there was a second issue here, and it’s the reason the Supremes originally agreed to hear the case - namely, what standard of review should be used when looking at the omission of an element from an indictment. Is the omission of an essential element a fatal flaw, like the Ninth Circuit said, or can the courts see if the error was harmless? Well Stevens ain’t saying - since he thinks the indictment here was fine, this is a moot issue that he’s going to ignore, thank you very much.

But wait. You said Scalia dissented. I sure did.

He declined to take part in slapping the Ninth Circuit around and in supporting a ruling which would lock up a Mexican? Yes he did. He thinks Stevens and the majority got it all wrong, and that when there’s an indictment for an “attempt” to commit some crime, there must be allegations of both intent and an overt act. He thinks Stevens logic, throughout the majority opinion, is rather flawed illogical. Here’s just one example - he doesn’t care if “attempt” is always understood to include the intent and the act (which he disagrees with anyway), because an indictment must always be explicit:

Burglary, for example, connotes in common parlance the entry of a building with felonious intent, yet we require those elements to be set forth.

Now, because this indictment is faulty, to Scalia’s mind, it puts him “in the odd position of being the sole Justice who must decide the question on which we granted certiorari: whether a constitutionally deficient indictment is structural error, as the Ninth Circuit held, or rather is amenable to harmless-error analysis.” He doesn’t go into details, since he knows his opinion doesn’t matter here (and he’s said it all before), but he would find that the error is structural and, therefore, fatal. Thus, he would affirm the Ninth Circuit.

Scalia would affirm the Ninth Circuit.

Dogs and cats, living together.

Mass hysteria!