Tomorrow’s Argument in United States v. Resendiz-Ponce

By Amy Howe
on Oct 9, 2006 at 9:30 pm

In the first case tomorrow, No. 05-998, United States v. Resendiz-Ponce, the Court will consider whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error, or is instead a structural error requiring the automatic reversal of the defendant’s conviction. If the harmless error/structural error question sounds familiar, it’s because the Court considered a similar question last Term in United States v. Gonzalez-Lopez. In that case, the Court held that a district court’s denial of a criminal defendant’s right to be represented by his counsel of choice constituted structural error. Tomorrow, Deputy Solicitor General Michael R. Dreeben – arguing on behalf of the United States – will seek to distinguish the case before the Court from Gonzalez-Lopez, while Atmore L. Baggot of Apache Junction, Colorado – arguing on behalf of respondent Juan Resendiz-Ponce – will try to convince the Court that his client’s case presents precisely the same kind of error present in Gonzalez-Lopez.

In June 2003, respondent Juan Resendiz-Ponce was indicted on charges that he attempted to reenter the United States after having been previously deported. After moving unsuccessfully to dismiss his indictment on the ground that it did not allege an overt act, Resendiz was convicted. On appeal, the Ninth Circuit reversed. First, it held, the indictment was constitutionally flawed because it failed to allege the explicit overt act required by Ninth Circuit law. Moreover, it explained, because “failure to allege an essential element of the offense is a fatal flaw not subject to mere harmless error analysis,” the indictment must be dismissed. One member of the panel – Senior Judge Thomas Reavley of the Fifth Circuit, sitting by designation and therefore not a real Ninth Circuit judge – concurred in the holding. He agreed that the result was dictated by Ninth Circuit precedent but noted that he “fail[ed] to see any other reason for this holding.” Specifically, Reavley contended that an indictment is “constitutionally sufficient if it clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense and so that a judgment thereon will safeguard him from a subsequent prosecution for the same offense.” “Respectfully but boldly . . . caution[ing] against the abandonment of common sense,” Reavley found that test to be met here.

The United States petitioned for certiorari only on the question whether the omission of an element of an offense can constitute harmless error, and the Court granted the petition on April 17.

In its brief on the merits, the United States emphasizes that Supreme Court precedent has carved out only a “very limited class” of constitutional errors that are so “intrinsically harmful,” or “structural,” as to justify automatic reversal. By contrast, the U.S. explains, the overwhelming majority of constitutional errors are subject only to harmless error review and can be disregarded when it is clear beyond a reasonable doubt that the error did not affect the outcome of the proceedings. Indeed, with the exception of Vasquez v. Hillery, decided in 1986, which involved purposeful racial discrimination in the selection of the grand jury, the Court has generally held that errors at the grand jury stage are subject to harmless error analysis.

Moreover, in Neder v. United States, the Court held that the omission of an offense element from the instructions given to a petit jury was harmless, rather than structural, error. In light of Neder, the U.S. contended, omission of the overt act element from the indictment must also constitute harmless error, particularly when – unlike the right to a trial by jury – the right to a grand jury does not even apply in state proceedings, when the error is limited to the grand jury stage (because the government must still prove the defendant guilty beyond a reasonable doubt), and when the petit jury actually provides more protections – such as the right to a public trial.

The U.S. also seeks to refute the idea – on which the Ninth Circuit relied below – that automatic reversal is necessary to preserve the basic purpose of the grand jury. To the extent that the grand jury’s function is to provide notice, the U.S. asserts, such a drastic remedy is not warranted, for several reasons. First, the Constitution requires only that a criminal defendant be informed of the “essential facts” underlying the offense with which he is charged. Second, even when an indictment does not provide those “essential facts,” an automatic reversal rule is still inappropriate because the defendant can obtain information regarding the allegations against him through other means, including a bill of particulars and pretrial discovery. Third, the government contends that it is not simply possible, but in fact “easy,” to assess the prejudicial effect of the government’s failure to provide adequate notice. Here, the petit jury’s finding that the overt act requirement had been proved beyond a reasonable doubt leads ineluctably to the conclusion that the omission of the “overt act” element was, the government asserts, indeed harmless.

Resendiz’s argument that the omission of the overt act requirement from his indictment constituted structural error rests on three basic premises. First, he relies on the text of the Fifth Amendment, which provides that “[n]o person shall be held to answer for a[n] . . . infamous crime, unless on a presentment or indictment of a Grand Jury.” When, as the U.S. concedes in this case, the indictment is not valid, both the text of the Fifth Amendment and the Court’s precedent provide an appropriate remedy: the defendant “shall [not] be held to answer.” Moreover, Resendiz contends, his case is on all fours with Gonzalez-Lopez, in which the Court held that the denial of a defendant’s right to counsel of choice constitutes structural error because that right has intrinsic value apart from any possible prejudice to the defendant; here, Resendiz-Ponce emphasizes, “[t]he right at stake . . . is the Fifth Amendment right not to be tried on a fatally defective indictment regardless of the strength of the government’s case.”

Gonzalez-Lopez forms the foundation for Resendiz’s second point as well: that the omission of the overt act requirement from the indictment is structural, rather than harmless, because it is not amenable to review. In this case, Resendiz asserts, because the government has never specifically identified the overt act, it would be impossible to review the significance of the omission in the context of the entire case, much less speculate as to what a hypothetical grand jury would have done if properly instructed.

Third, Resendiz contends, he was prejudiced by the government’s failure to identify the overt act at issue. Had such an act been identified, he notes, he might have been able to counter that allegation.