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The United States Supreme Court has identified two constitutional requirements for an indictment: first, that it contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, that it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.
Juan Resendiz-Ponce, 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 indictment 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.
Was the indictment defective?
The Court determined that the indictment was not defective because the indictment implicitly alleged that Resendiz-Ponce engaged in the necessary overt act simply by alleging that he attempted to enter the United States. The indictment alleging attempted illegal reentry under 8 U.S.C.S. § 1326(a) did not need to specifically allege a particular overt act or any other "component part" of the offense. The use of the word "attempt," coupled with the specification of the time and place of respondent's attempted illegal reentry, satisfied the two constitutional requirements for an indictment. Resendiz-Ponce’s indictment fully complied with Fed. R. Crim. P. 7(c)(1) and did not deprive him of any significant protection that the constitutional guarantee of a grand jury was intended to confer.