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US v. Resendiz-Ponce: Omitting Elements from Indictment

By Paul M. Rashkind

United States v. Resendiz-Ponce, 127 S. Ct. ___ (Jan. 9, 2007). Cert petition by government to determine whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. Here, the indictment for unlawful reentry failed to allege an overt act, an essential element of the crime, and Ninth Circuit precedent therefore dictated that the conviction must be reversed even though the government presented uncontested proof of an overt act at trial. After oral argument, the Court asked for additional briefing on the underlying question: Was the indictment defective? Rather than answer the government?s question on harmless error, the Court (Stevens, J.) held there had been no error at all, since the indictment was not defective. This obviated the need to decide the harmless error issue. Justice Scalia dissented, contending that the indictment was defective and that left him as the only justice willing to address the original question. "Since the full Court will undoubtedly have to speak to the point on another day (it dodged the bullet today by inviting and deciding a different constitutional issue?albeit, to be fair, a narrower one) there is little use in my setting forth my views in detail. It should come as no surprise, given my opinions in United States v. Gonzalez-Lopez, 548 U.S. ___ (2006), and Neder v. United States, 527 U.S. 1, 30 (1999) (opinion concurring in part and dissenting in part), that I would find the error to be structural."

Full post as published by U.S. Supreme Court Blog on January 09, 2007 (boomark / email).