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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.


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