United States v. Resendiz-Ponce

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. RESENDIZ-PONCE

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 05–998. Argued October 10, 2006—Decided January 9, 2007

Respondent, a Mexican citizen, was charged with violating 8 U. S. C.

§1326(a) by attempting to reenter the United States after having

been deported. The District Court denied his motion to have the in

dictment dismissed because it did not allege a specific overt act that

he committed in seeking reentry. In reversing, the Ninth Circuit

reasoned that the indictment’s omission of an overt act was a fatal

flaw not subject to harmless-error review.

Held: Respondent’s indictment was not defective, and, thus, this Court

need not reach the harmless-error issue. While the Government does

not dispute that respondent cannot be guilty of attempted reentry

under §1326(a) unless he committed an overt act qualifying as a sub

stantial step toward completing his goal or that “[a]n indictment

must set forth each element of the crime that it charges,” Almen

darez-Torres v. United States, 523 U. S. 224, 228, it contends that the

instant indictment implicitly alleged that respondent engaged in the

necessary overt act by alleging that he “attempted” to enter the coun

try. This Court agrees. Not only does “attempt” as used in common

parlance connote action rather than mere intent, but, more impor

tantly, as used in the law for centuries, it encompasses both the overt

act and intent elements. Thus, an indictment alleging attempted re

entry under §1326(a) need not specifically allege a particular overt

act or any other “component par[t]” of the offense. See Hamling v.

United States, 418 U. S. 87, 117. It was enough for the indictment to

point to the relevant criminal statute and allege that respondent “in

tentionally attempted to enter the United States . . . at or near San

Louis . . . Arizona” “[o]n or about June 1, 2003.” App. 8. An indict

ment has two constitutional requirements: “first, [it must] contai[n]

the elements of the offense charged and fairly infor[m] a defendant of

2 UNITED STATES v. RESENDIZ-PONCE

Syllabus

the charge against which he must defend, and, second, [it must] en

abl[e] him to plead an acquittal or conviction in bar of future prosecu

tions for the same offense.” Hamling, 418 U. S., at 117. Here, the

use of the word “attempt,” coupled with the specification of the time

and place of the alleged reentry, satisfied both. Respondent’s argu

ment that the indictment would have been sufficient only if it alleged

any of three overt acts performed during his attempted reentry—that

he walked into an inspection area; that he presented a misleading

identification card; or that he lied to the inspector—is rejected. Re

spondent is correct that some crimes must be charged with greater

specificity than an indictment parroting a federal criminal statute’s

language, see Russell v. United States, 369 U. S. 749, but the Russell

Court’s reasoning suggests that there was no infirmity in the present

indictment, see id., at 764, 762, and respondent’s indictment com

plied with Federal Rule of Criminal Procedure 7(c)(1), which provides

that an indictment “must be a plain, concise, and definite written

statement of the essential facts constituting the offense charged.” Pp.

5–9.

425 F. 3d 729, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, BREYER, and ALITO,

JJ., joined. SCALIA, J., filed a dissenting opinion.

Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–998

_________________

UNITED STATES, PETITIONER v. JUAN RESENDIZ-

PONCE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[January 9, 2007]

JUSTICE STEVENS delivered the opinion of the Court.

A jury convicted respondent Juan Resendiz-Ponce, a

Mexican citizen, of illegally attempting to reenter the

United States. Because the indictment failed to allege a

specific overt act that he committed in seeking reentry,

the Court of Appeals set aside his conviction and re

manded for dismissal of the indictment. We granted the

Government’s petition for certiorari to answer the ques

tion whether the omission of an element of a criminal

offense from a federal indictment can constitute harmless

error.

Although the Government expressly declined to “seek

review of the court of appeals’ threshold holdings that the

commission of an overt act was an element of the offense

of attempted unlawful reentry and that the indictment

failed to allege that element,” Pet. for Cert. 9, n. 3, “ ‘[i]t is

not the habit of the Court to decide questions of a constitu

tional nature unless absolutely necessary to a decision of

the case,’ ” Ashwander v. TVA, 297 U. S. 288, 347 (1936)

(Brandeis, J., concurring) (quoting Burton v. United

States, 196 U. S. 283, 295 (1905)). For that reason, after

2 UNITED STATES v. RESENDIZ-PONCE

Opinion of the Court

oral argument we ordered the parties to file supplemental

briefs directed to the question whether respondent’s in

dictment was in fact defective. We conclude that it was

not and therefore reverse without reaching the harmless-

error issue.

I

Respondent was deported twice, once in 1988 and again

in 2002, before his attempted reentry on June 1, 2003. On

that day, respondent walked up to a port of entry and

displayed a photo identification of his cousin to the border

agent. Respondent told the agent that he was a legal

resident and that he was traveling to Calexico, California.

Because he did not resemble his cousin, respondent was

questioned, taken into custody, and ultimately charged

with a violation of 8 U. S. C. §1326(a).1 The indictment

alleged:

“On or about June 1, 2003, JUAN RESENDIZ

PONCE, an alien, knowingly and intentionally at

tempted to enter the United States of America at or

——————

1 Title

8 U. S. C. §1326 provides, in part:

“Reentry of removed aliens

“(a) In general

“Subject to subsection (b) of this section, any alien who—

“(1) has been denied admission, excluded, deported, or removed or

has departed the United States while an order of exclusion, deporta

tion, or removal is outstanding, and thereafter

“(2) enters, attempts to enter, or is at any time found in, the United

States, unless (A) prior to his reembarkation at a place outside the

United States or his application for admission from foreign contiguous

territory, the Attorney General has expressly consented to such alien’s

reapplying for admission; or (B) with respect to an alien previously

denied admission and removed, unless such alien shall establish that

he was not required to obtain such advance consent under this chapter

or any prior Act,

“shall be fined under title 18, or imprisoned not more than 2 years, or

both.”

Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

near San Luis in the District of Arizona, after having

been previously denied admission, excluded, deported,

and removed from the United States at or near No

gales, Arizona, on or about October 15, 2002, and not

having obtained the express consent of the Secretary

of the Department of Homeland Security to reapply

for admission.

“In violation of Title 8, United States Code, Sections

1326(a) and enhanced by (b)(2).” App. 8.

Respondent moved to dismiss the indictment, contending

that it “fail[ed] to allege an essential element, an overt act,

or to state the essential facts of such overt act.” Id., at 12.

The District Court denied the motion and, after the jury

found him guilty, sentenced respondent to a 63-month

term of imprisonment.

The Ninth Circuit reversed, reasoning that an indict

ment’s omission of “an essential element of the offense is a

fatal flaw not subject to mere harmless error analysis.”

425 F. 3d 729, 732 (2005). In the court’s view, respon

dent’s indictment was fatally flawed because it nowhere

alleged “any specific overt act that is a substantial step”

toward the completion of the unlawful reentry.2 Id., at

733. The panel majority explained:

“The defendant has a right to be apprised of what

overt act the government will try to prove at trial, and

——————

2 In the opinion of the Ninth Circuit, the five elements of the offense

of attempted reentry in violation of §1326(a) are:

“(1) the defendant had the purpose, i.e., conscious desire, to reenter the

United States without the express consent of the Attorney General; (2)

the defendant committed an overt act that was a substantial step

towards reentering without that consent; (3) the defendant was not a

citizen of the United States; (4) the defendant had previously been

lawfully denied admission, excluded, deported or removed from the

United States; and (5) the Attorney General had not consented to the

defendant's attempted reentry.” United States v. Gracidas-Ulibarry,

231 F. 3d 1188, 1196 (2000) (en banc).

4 UNITED STATES v. RESENDIZ-PONCE

Opinion of the Court

he has a right to have a grand jury consider whether

to charge that specific overt act. Physical crossing

into a government inspection area is but one of a

number of other acts that the government might have

alleged as a substantial step toward entry into the

United States. The indictment might have alleged the

tendering a bogus identification card; it might have

alleged successful clearance of the inspection area; or

it might have alleged lying to an inspection officer

with the purpose of being admitted. . . . A grand jury

never passed on a specific overt act, and Resendiz was

never given notice of what specific overt act would be

proved at trial.” Ibid.

Judge Reavley concurred, agreeing that Ninth Circuit

precedent mandated reversal. If not bound by precedent,

however, he would have found the indictment to be “con

stitutionally sufficient” because it clearly informed re

spondent “of the precise offense of which he [was] accused

so that he [could] prepare his defense and so that a judg

ment thereon [would] safeguard him from a subsequent

prosecution for the same offense.” Ibid.

II

At common law, the attempt to commit a crime was

itself a crime if the perpetrator not only intended to com

mit the completed offense, but also performed “ ‘some open

deed tending to the execution of his intent.’ ” 2 W. LaFave,

Substantive Criminal Law §11.2(a), p. 205 (2d ed. 2003)

(quoting E. Coke, Third Institute 5 (6th ed. 1680)); see

Keedy, Criminal Attempts at Common Law, 102 U. Pa.

L. Rev. 464, 468 (1954) (noting that common-law attempt

required “that some act must be done towards carrying out

the intent”). More recently, the requisite “open deed” has

been described as an “overt act” that constitutes a “sub

stantial step” toward completing the offense. 2 LaFave,

Substantive Criminal Law §11.4; see ALI, Model Penal

Cite as: 549 U. S. ____ (2007) 5

Opinion of the Court

Code §5.01(1) (c) (1985) (defining “criminal attempt” to

include “an act or omission constituting a substantial step

in a course of conduct planned to culminate in his commis

sion of the crime”); see also Braxton v. United States, 500

U. S. 344, 349 (1991) (“For Braxton to be guilty of an

attempted killing under 18 U. S. C. §1114, he must have

taken a substantial step towards that crime, and must

also have had the requisite mens rea”). As was true at

common law, the mere intent to violate a federal criminal

statute is not punishable as an attempt unless it is also

accompanied by significant conduct.

The Government does not disagree with respondent’s

submission that he cannot be guilty of attempted reentry

in violation of 8 U. S. C. §1326(a) unless he committed an

overt act qualifying as a substantial step toward comple

tion of his goal. See Supplemental Brief for United States

7–8. Nor does it dispute that “[a]n indictment must set

forth each element of the crime that it charges.” Almen

darez-Torres v. United States, 523 U. S. 224, 228 (1998). It

instead contends that the indictment at bar implicitly

alleged that respondent engaged in the necessary overt act

“simply by alleging that he ‘attempted to enter the United

States.’ ” Supplemental Brief for United States 8. We

agree.

Not only does the word “attempt” as used in common

parlance connote action rather than mere intent, but more

importantly, as used in the law for centuries, it encom

passes both the overt act and intent elements. Conse

quently, an indictment alleging attempted illegal reentry

under §1326(a) need not specifically allege a particular

overt act or any other “component par[t]” of the offense.

See Hamling v. United States, 418 U. S. 87, 119 (1974).

Just as it was enough for the indictment in Hamling to

allege that the defendant mailed “obscene” material in

violation of 18 U. S. C. §1461, see 418 U. S., at 117–118, it

was enough for the indictment in this case to point to the

6 UNITED STATES v. RESENDIZ-PONCE

Opinion of the Court

relevant criminal statute and allege that “[o]n or about

June 1, 2003,” respondent “attempted to enter the United

States of America at or near San Luis in the District of

Arizona.”3 App. 8.

In Hamling, we identified two constitutional require

ments for an indictment: “first, [that it] contains the ele

ments of the offense charged and fairly informs a defen

dant of the charge against which he must defend, and,

second, [that it] enables him to plead an acquittal or con

viction in bar of future prosecutions for the same offense.”

418 U. S., at 117. In this case, the use of the word “at

tempt,” coupled with the specification of the time and

place of respondent’s attempted illegal reentry, satisfied

both. Indeed, the time-and-place information provided

respondent with more adequate notice than would an

indictment describing particular overt acts. After all, a

given defendant may have approached the border or lied to

a border-patrol agent in the course of countless attempts

on innumerable occasions. For the same reason, the time-

and-date specification in respondent’s indictment provided

ample protection against the risk of multiple prosecutions

for the same crime.4

——————

3 See United States v. Toma, No. 94–CR–333, 1995 WL 65031, *1

(ND Ill. 1995) (“[F]or indictment purposes, use of the word ‘attempt’

is sufficient to incorporate the substantial step element. The

word ‘attempt’ necessarily means taking a substantial step” (footnote

omitted)).

4 There is little practical difference between our holding and JUSTICE

SCALIA’s position. Apparently, JUSTICE SCALIA would have found the

indictment to be sufficient if it also stated that respondent “ ‘took a

substantial step’ ” toward entering the United States. See post, at 6

(dissenting opinion). Unlike the Ninth Circuit, then, JUSTICE SCALIA

would not have required the indictment to allege a particular overt act

such as tendering a false identification to a border inspector. Compare

ibid. with Resendiz-Ponce, 425 F. 3d at 729, 733. With all due respect

to his principled position, we think that the “substantial step” require

ment is implicit in the word “attempt,” and we do not believe that

adding those four words would have given respondent any greater

Cite as: 549 U. S. ____ (2007) 7

Opinion of the Court

Respondent nonetheless maintains that the indictment

would have been sufficient only if it had alleged any of

three overt acts performed during his attempted reentry:

that he walked into an inspection area; that he presented

a misleading identification card; or that he lied to the

inspector. See Supplemental Brief for Respondent 7.

Individually and cumulatively, those acts tend to prove

the charged attempt—but none was essential to the find

ing of guilt in this case. All three acts were rather part of

a single course of conduct culminating in the charged

“attempt.” As Justice Holmes explained in Swift & Co. v.

United States, 196 U. S. 375, 396 (1905), “[t]he unity of the

plan embraces all the parts.”5

Respondent is of course correct that while an indictment

parroting the language of a federal criminal statute is

often sufficient, there are crimes that must be charged

with greater specificity. See Hamling, 418 U. S., at 117.

A clear example is the statute making it a crime for a

witness summoned before a congressional committee to

refuse to answer any question “pertinent to the question

under inquiry.” 2 U. S. C. §192. As we explained at

length in our opinion in Russell v. United States, 369 U. S.

749 (1962), a valid indictment for such a refusal to testify

must go beyond the words of §192 and allege the subject of

the congressional hearing in order to determine whether

the defendant’s refusal was “pertinent.“ Based on a num

ber of cases arising out of congressional investigations, we

recognized that the relevant hearing’s subject was fre

——————

notice of the charges against him or protection against future prosecu

tion.

5 Likewise, it would it be unrealistic to suggest that respondent actu

ally committed three separate attempt offenses involving three differ

ent overt acts. Indeed, if each overt act were treated as a separate

element, an attempt involving multiple overt acts might conceivably

qualify for several separate offenses, thus perversely enhancing, rather

than avoiding, the risk of successive prosecution for the same wrong.

8 UNITED STATES v. RESENDIZ-PONCE

Opinion of the Court

quently uncertain but invariably “central to every prosecu

tion under the statute.” Id., at 764. Both to provide fair

notice to defendants and to assure that any conviction

would arise out of the theory of guilt presented to the

grand jury, we held that indictments under §192 must do

more than restate the language of the statute.

Our reasoning in Russell suggests that there was no

infirmity in the present indictment. First, unlike the

statute at issue in Russell, guilt under 8 U. S. C. §1326(a)

does not “depen[d] so crucially upon such a specific identi

fication of fact.” 369 U. S., at 764. Second, before explain

ing the special need for particularity in charges brought

under 2 U. S. C. §192, Justice Stewart noted that, in 1872,

Congress had enacted a statute reflecting “the drift of the

law away from the rules of technical and formalized plead

ing which had characterized an earlier era.”6 369 U. S., at

762. After the repeal of that statute, there was no other

legislation dealing generally with the subject of indict

ments until the promulgation of Federal Rule of Criminal

Procedure 7(c)(1). As we have said, the Federal Rules

“were designed to eliminate technicalities in criminal

pleadings and are to be construed to secure simplicity in

procedure.” United States v. Debrow, 346 U. S. 374, 376

(1953). While detailed allegations might well have been

required under common-law pleading rules, see, e.g.,

Commonwealth v. Peaslee, 177 Mass. 267, 59 N. E. 55

(1901), they surely are not contemplated by Rule 7(c)(1),

which provides that an indictment “shall be a plain, con

——————

6 The

1872 statute provided that “no indictment found and presented

by a grand jury in any district or circuit . . . shall be deemed insuffi

cient, nor shall the trial, judgment, or other proceeding thereon be

affected by reason of any defect or imperfection in matter of form only,

which shall not tend to the prejudice of the defendant.” §8, 17 Stat.

198. The opinion in Russell noted that the 1872 statute had been

repealed, but its substance had been preserved in Federal Rule of

Criminal Procedure 52(a). See 369 U. S., at 762.

Cite as: 549 U. S. ____ (2007) 9

Opinion of the Court

cise, and definite written statement of the essential facts

constituting the offense charged.”7

Because we are satisfied that respondent’s indictment

fully complied with that Rule and did not deprive him of

any significant protection that the constitutional guaran

tee of a grand jury was intended to confer, we reverse the

judgment of the Court of Appeals and remand the case for

further proceedings consistent with this opinion.

It is so ordered.

——————

7 Federal Rule of Criminal Procedure 31(c) is also instructive. It pro

vides that a defendant may be found guilty of “an attempt to commit

the offense charged; or . . . an attempt to commit an offense necessarily

included in the offense charged, if the attempt is an offense in its own

right.” Fed. Rule Crim. Proc. 31(c)(2)–(3). If a defendant indicted only

for a completed offense can be convicted of attempt under Rule 31(c)

without the indictment ever mentioning an overt act, it would be

illogical to dismiss an indictment charging “attempt” because it fails to

allege such an act.

Cite as: 549 U. S. ____ (2007) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–998

_________________

UNITED STATES, PETITIONER v. JUAN RESENDIZ-

PONCE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[January 9, 2007]

JUSTICE SCALIA, dissenting.

It is well established that an indictment must allege all

the elements of the charged crime. Almendarez-Torres v.

United States, 523 U. S. 224, 228 (1998); United States v.

Cook, 17 Wall. 168, 174 (1872). As the Court acknowl

edges, it is likewise well established that “attempt” con

tains two substantive elements: the intent to commit the

underlying crime, and the undertaking of some action

toward commission of that crime. See ante, at 4 (citing 2

W. LaFave, Substantive Criminal Law §11.2(a), p. 205 (2d

ed. 2003), E. Coke, Third Institute 5 (6th ed. 1680), and

Keedy, Criminal Attempts at Common Law, 102 U. Pa.

L. Rev. 464, 468 (1954)). See also Braxton v. United

States, 500 U. S. 344, 349 (1991). It should follow, then,

that when the Government indicts for attempt to commit a

crime, it must allege both that the defendant had the

intent to commit the crime, and that he took some action

toward its commission. Any rule to the contrary would be

an exception to the standard practice.

The Court gives two reasons for its special “attempt”

exception. First, it says that in “common parlance” the

word attempt “connote[s],” and therefore “impli[es],” both

the intent and overt-act elements. Ante, at 5. This strikes

me as certainly irrelevant, and probably incorrect to boot.

It is irrelevant because, as I have just discussed, we have

2 UNITED STATES v. RESENDIZ-PONCE

SCALIA, J., dissenting

always required the elements of a crime to be explicitly set

forth in the indictment, whether or not they are fairly

called to mind by the mere name of the crime. Burglary,

for example, connotes in common parlance the entry of a

building with felonious intent, yet we require those ele

ments to be set forth. Our precedents make clear that the

indictment must “fully, directly, and expressly, without

any uncertainty or ambiguity, set forth all the elements

necessary to constitute the offence intended to be pun

ished.” United States v. Carll, 105 U. S. 611, 612 (1882)

(emphasis added). And the Court’s argument is probably

incorrect because I doubt that the common meaning of the

word “attempt” conveys with precision what conviction of

that crime requires. A reasonable grand juror, relying on

nothing but that term, might well believe that it connotes

intent plus any minor action toward the commission of the

crime, rather than the “ ‘substantial step’ ” that the Court

acknowledges is required, ante, at 5.

Besides appealing to “common parlance,” the Court

relies on the fact that attempt, “as used in the law for

centuries . . . encompasses both the overt act and intent

elements.” Ante, at 6. Once again, this argument seems

to me certainly irrelevant and probably incorrect. Many

common-law crimes have retained relatively static ele

ments throughout history, burglary among them; that has

never been thought to excuse the specification of those

elements in the indictment. And the argument is probably

incorrect, because the definition of attempt has not been

nearly as consistent as the Court suggests. Nearly a

century ago, a leading criminal-law treatise pointed out

that “ ‘attempt’ is a term peculiarly indefinite” with “no

prescribed legal meaning.” 1 F. Wharton, Criminal Law

§229, p. 298 (11th ed. 1912). Even the modern treatise the

Court relies upon, see ante, at 4, explains—in a subsection

entitled “The Confusion”—that jurisdictions vary widely in

how they define the requisite actus reus. LaFave, supra,

Cite as: 549 U. S. ____ (2007) 3

SCALIA, J., dissenting

§11.4(a), at 218–219. Among the variations are: “ ‘an act

toward the commission of ’ some offense”; “an act ‘in fur

therance of ’ ” an offense; “ ‘a substantial step toward the

commission of the crime’ ”; “ ‘some appreciable fragment of

the crime’ ”; and the wonderfully opaque “ ‘commencement

of the consummation.’ ” Id., §11.4(a), at 218–219 (footnote

omitted). These are not simply different ways of saying

“substantial step.” The Model Penal Code definition that

the Court invokes, ante, at 4–5, is just that: a model. It

does not establish the degree of homogeneity that the

Court asserts. The contention that the “federal system”

has a “well-settled” definition of attempt, see Supplemen

tal Brief for United States 22, tells us nothing; many terms

in federal indictments have only one federal definition, not

because that is the universally accepted definition, but

because there is only one Federal Government.

In this case, the indictment alleged that respondent

“knowingly and intentionally attempted to enter the United

States of America,” App. 8, so that the Court focuses only

on whether the indictment needed to allege the second

element of attempt, an overt act. If one accepts the

Court’s opinion, however, the indictment could just as well

have omitted the phrase “knowingly and intentionally,”

since that is understood in “common parlance,” and has

been an element of attempt “for centuries.” Would we say

that, in a prosecution for first-degree murder, the element

of “malice aforethought” could be omitted from the indict

ment simply because it is commonly understood, and the

law has always required it? Surely not.

The sole judicial authority the Court cites for its novel

exception to the traditional indictment requirements

(other than an unpublished opinion of a district court, see

ante, at 6, n. 3) is Hamling v. United States, 418 U. S. 87

(1974). The relevant portion of that opinion consists of the

following:

4 UNITED STATES v. RESENDIZ-PONCE

SCALIA, J., dissenting

“The definition of obscenity . . . is not a question of

fact, but one of law; the word ‘obscene,’ . . . is not

merely a generic or descriptive term, but a legal term

of art. The legal definition of obscenity does not

change with each indictment; it is a term sufficiently

definite in legal meaning to give a defendant notice of

the charge against him. Since the various component

parts of the constitutional definition of obscenity need

not be alleged in the indictment in order to establish

its sufficiency, the indictment in this case was suffi

cient to adequately inform petitioners of the charges

against them.” Id., at 118–119 (citations omitted).

If these sentences established the broad principle the

Court asserts, they would apply not only to the elements of

attempt, but to the elements of all crimes, effecting a

revolution in our jurisprudence regarding the require

ments of an indictment. In fact, however, Hamling is

easily distinguishable. “Obscenity” is, to be sure, one of

the elements of the crime of publishing obscenity. But the

“various component parts of the constitutional definition

of obscenity” are no more elements of the crime of publish

ing obscenity than the various component parts of the

definition of “building” are elements of the crime of bur

glary. To be sure, those definitions must be met for con

viction; but they need not be set forth in the indictment. If

every word contained within the definition of each element

of a crime were itself an element of the crime within the

meaning of the indictment requirement, there would be no

end to the prolixity of indictments. There is no dispute

here that “intent” and “substantial step” are elements of

the federal crime of attempt, just as obscenity was an

element of the crime charged in Hamling. Hamling would

be in point if it dispensed with the charging of obscenity in

the indictment.

The Court finds another point “instructive”: “If a defen

Cite as: 549 U. S. ____ (2007) 5

SCALIA, J., dissenting

dant indicted only for a completed offense can be convicted

of attempt . . . without the indictment’s ever mentioning

an overt act, it would be illogical to dismiss an indictment

charging ‘attempt’ because it fails to allege such an act.”

Ante, at 9, n. 7. I disagree; it seems to me entirely logical.

To indict for commission of a completed offense, the prose

cutor must persuade the grand jury that the accused’s acts

and state of mind fulfilled all the elements of the offense.

If they did so, and if the offense has a mens rea element

(which almost all crimes, including burglary, do), then

they unquestionably fulfilled all the elements of an at

tempt as well—i.e., the accused meant to commit the crime

and took the requisite step (no matter how demanding the

requirement) in that direction. That is to say, attempt to

commit a crime is simply a lesser included offense. A

grand-jury finding that the accused committed the crime

is necessarily a finding that he attempted to commit the

crime, and therefore the attempt need not be separately

charged. When, however, the prosecutor seeks only an

indictment for attempt, it is not enough to tell the grand

jury that it requires a finding of “some, but not all, of the

elements of the substantive crime”; he must specify what

the elements of attempt consist of. He must do that for

the same reason a court must instruct the petit jury on the

attempt elements, see 2 E. Devitt, C. Blackmar, & K.

O’Malley, Federal Jury Practice and Instructions §21.03,

p. 4, Notes (4th ed. 1990) (collecting cases), even when the

indictment has not separately charged attempt: without

such specification, the jury, grand or petit, cannot intelli

gently find attempt.

Finally, the Court suggests that there is something

different about attempt because it is a parasitic crime.

There is no such crime as bald attempt; it must be attempt

to commit some other crime. This is unquestionably true,

fully as true as the fact that attempt begins with an “a.”

But there is no reason why the one, any more than the

6 UNITED STATES v. RESENDIZ-PONCE

SCALIA, J., dissenting

other, has anything to do with the purposes, and hence the

substance, of the indictment requirement. Conspiracy is

also, in most cases, a parasitic crime, and no one contends

that its elements need not be charged.

Despite the clear answer provided by straightforward

application of the oft-recited principles of our jurispru

dence, I might have been persuaded to recognize an (illogi

cal) exception to those principles if the Government had

demonstrated that mere recitation of the word “attempt”

in attempt indictments has been the traditional practice.

But its effort to do so falls far short; in fact, it has not even

undertaken such an effort. The Government has pointed

to some cases that allow an indictment simply to use the

word “attempt,” and many others that invalidate an in

dictment for failure to allege an overt act. See Supple

mental Brief for United States 15–21. It matters not

whether more of one sort or the other of these cases arose

in state courts or federal courts; the point is that there is

no established historical “attempt” exception to the gen

eral principles of our jurisprudence. That being so, those

principles must prevail.

To be clear, I need not decide in this case whether, as

the Ninth Circuit held, the Government was required to

specify in the indictment which particular overt act it

would be relying on at trial. Cf. Russell v. United States,

369 U. S. 749 (1962). It suffices to support the judgment,

that the Government was required to state not only that

Resendiz-Ponce “knowingly and intentionally attempted to

enter the United States of America,” but also that he “took

a substantial step” toward that end.

* * *

My dissenting view that the indictment was faulty (a

point on which we requested supplemental briefing) puts

me in the odd position of being the sole Justice who must

decide the question on which we granted certiorari:

Cite as: 549 U. S. ____ (2007) 7

SCALIA, J., dissenting

whether a constitutionally deficient indictment is struc

tural error, as the Ninth Circuit held, or rather is amena

ble to harmless-error analysis. I cannot vote to affirm or

to reverse the judgment without resolving that issue.

Since the full Court will undoubtedly have to speak to the

point on another day (it dodged the bullet today by invit

ing 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. I would

therefore affirm the judgment of the Ninth Circuit.