Submit ZIP Code

Got a Quick Question?

(120 characters remaining)
100% Anonymous. Free Answers.

Supreme Court Holds “Attempt” Sufficient in Indictment of Alien Attempting to Re-Enter the United States

The US Supreme Court recently (January 2007) held that an indictment claiming that a defendant had “attempted” to commit a crime was sufficient; an overt act need not be specified. United States v. Resendiz-Ponce (No. 05-998).

Juan Resendiz-Ponce was convicted by a jury of illegally attempting to re-enter the United States after he had been deported. 8 USC § 1326. Resendiz-Ponce had been deported from the United States in 1988 and again in 2002. In 2003 he walked up to a port of entry and showed the boarder guard a photo ID of his cousin. He claimed it was his ID and that he was a legal resident of California. Resendiz-Ponce was taken into custody and charged with attempting to illegally enter the United States. The indictment merely stated that he had “attempted to enter the United States” illegally. No overt act was specified.

Resendiz-Ponce’s criminal defense attorney appealed his conviction, asserting that the indictment failed because no overt act had been specified. Without declaring what overt act he had taken, the indictment failed to inform him of every element of the crime with which he was charged. The Ninth Circuit Court of Appeals agreed and sent the case back to the trial court for dismissal of the charges. The Federal Government appealed, asking the Supreme Court to review the conviction on a harmless-error standard.

The Court declined to take a harmless-error review of the conviction, holding that the indictment was proper. Justice Stevens wrote that the word “attempt” as used in common parlance connotes action rather than just mere intent. He said that for centuries “attempt” has encompassed both intent and an overt act.

Justice Stevens reiterated that an indictment need only inform a defendant of each element of the crime he is charged with. By stating that Resendiz-Ponce had “attempted” to enter the United States illegally, the indictment informed the defendant that he had intended to enter and had made an overt act to do so. The Court held that Resendiz-Ponce had plenty of information to defend himself against the charge.

PAID ATTORNEY ADVERTISEMENT: THIS WEB SITE IS A GROUP ADVERTISEMENT AND THE PARTICIPATING ATTORNEYS ARE INCLUDED BECAUSE THEY PAY AN ADVERTISING FEE. It is not a lawyer referral service or prepaid legal services plan. Total Criminal Defense is not a law firm. Your request for contact will be forwarded to the local lawyer who has paid to advertise in the ZIP code you provide. Total Criminal Defense does not endorse or recommend any lawyer or law firm who participates in the network. It does not make any representation and has not made any judgment as to the qualifications, expertise or credentials of any participating lawyer. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers. The information contained herein is not legal advice. Any information you submit to Total Criminal Defense may not be protected by attorney-client privilege. All photos are of models and do not depict clients. All case evaluations are performed by participating attorneys. To see the attorney in your area who is responsible for this advertisement, please click here or call 866-200-8052.

FLORIDA ONLY: Total Criminal Defense is considered a lawyer referral service in the state of Florida under the Florida Rules of Professional Conduct. By all other standards, Total Criminal Defense is a group advertisement and not a lawyer referral service.

If you live in Florida, Mississippi, Missouri, New York or Wyoming, please click here