FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-10302 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00810-EHC

JUAN RESENDIZ-PONCE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted

June 14, 2005—San Francisco, California

Filed October 11, 2005

Before: Alfred T. Goodwin, Thomas M. Reavley,* and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Goodwin;

Concurrence by Judge Reavley

*The Honorable Thomas M. Reavley, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation. 

13977
COUNSEL

Atmore L. Baggot, Apache Junction, Arizona, for the

defendant-appellant.

Raynette M. Logan, Joseph Koehler, Assistant U.S. Attorneys, Phoenix, Arizona, for the plaintiff-appellee. 

UNITED STATES v. RESENDIZ-PONCE 13979
OPINION

GOODWIN, Circuit Judge: 

Juan Resendiz-Ponce, a native and citizen of Mexico, challenges his conviction and sentence for attempting to reenter

the United States after having been previously deported subsequent to committing an aggravated felony, pursuant to 8

U.S.C. § 1326(a), (b)(2). He argues that (1) the indictment did

not adequately allege an overt act; (2) his Miranda rights were

violated; (3) the judge erroneously rejected his proffered jury

instructions; and (4) his sentence violates the Sixth Amendment. Because the indictment was insufficient and should be

dismissed, we do not reach his remaining claims.

Facts and Procedural History

Resendiz-Ponce entered the United States illegally in 1988,

and was ordered deported on March 12, 1997. He reentered

the United States illegally in July, 2002. On August 28, 2002,

he was convicted of kidnaping his common-law wife and sentenced to 45 days in county jail. On October 15, 2002, while

still in county jail, he was questioned by an INS agent and

admitted that he was an alien, that he was previously

deported, and that he had not sought permission to re-enter

from the Attorney General. He was deported later that same

day. 

In June 2003, Resendiz approached a port of entry at the

U.S./Mexican border on foot. Resendiz presented photo identification to the border agent, claiming to be a legal resident.

This identification belonged to Antonio Resendiz, Juan’s cousin. Because Resendiz did not look like the tendered photo,

the agent directed him to a secondary inspection area, where

he was questioned. In due course, he was indicted for attempting to reenter the United States in violation of 8 U.S.C.

§ 1326(a). The indictment reads as follows: 

13980 UNITED STATES v. RESENDIZ-PONCE
On or about June 1, 2003, JUAN RESENDIZPONCE, an alien, knowingly and intentionally

attempted to enter the United States of America at or

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 Nogales, 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). 

At trial, Resendiz moved to suppress the statements he

made to the INS agent while in jail in 2002 because he did not

receive Miranda warnings, to dismiss the indictment because

it did not allege an overt act, and to strike a portion of the

indictment related to 8 U.S.C. § 1326(b)(2) because the

indictment did not allege that his prior deportation occurred

subsequent to his prior conviction. The district court denied

these motions. Resendiz also requested a jury instruction that

would have told the jury that the government must prove that

Resendiz performed the overt act of successfully reentering

the United States. The court denied this request. Resendiz was

convicted. At his sentencing hearing, the district court determined that he was previously deported and that this deportation occurred subsequent to his conviction for an aggravated

felony. Therefore, the statutory maximum for his sentence

was increased from 2 years to 20 years, pursuant to

§ 1326(b)(2). He was sentenced to 63 months, the middle of

the applicable guideline range of 57-71 months. This appeal

followed. 

Jurisdiction and Standard of Review

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. This court has jurisdiction pursuant to 28 U.S.C.

UNITED STATES v. RESENDIZ-PONCE 13981
§ 1291. We review the sufficiency of an indictment de novo.

United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

Discussion

[1] The crime of attempted unlawful entry into the United

States, as defined by § 1326, includes as an essential element

that “the defendant committed an overt act that was a substantial step toward reentering . . .” United States v. GracidasUlibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).1

[2] The indictment in this case does not explicitly allege an

overt act. It charges neither the physical crossing of the border, nor the tendering of the bogus identification card, nor any

other fact, as a substantial step toward reentry. Either or both

of those acts could have been stated in the indictment. The

government argued to the district court that the “overt act is

the attempt to enter in this case” and argues on appeal that

“the overt act of an attempted entry crime is the entry itself.”

The first argument is a non-starter. The overt act with which

the defendant is charged obviously cannot be identified with

the ultimate legal question of guilt or innocence. The second

argument can be construed as either (1) the legal claim that

a charge of attempted entry necessarily implies that the associated overt act was actual entry, or (2) the factual claim that

in this case, the indictment implicitly alleged physical entry

and thus identified an overt act. The district court held that

“being here is sufficient to advise [Resendiz] . . . of what it

is he’s charged with,” thus apparently endorsing (2), and possibly also endorsing the proposition that any error was harmless and did not prejudice Resendiz. We reject both of these

1Unlike the separate offense of “being found in” the United States,

where failure to allege the overt act of crossing the border (or other overt

act) is not a fatal defect, because not an “essential element,” the other two

§ 1326 offenses for which deported aliens may be prosecuted require an

overt act to be alleged in the indictment. Cf. United States v. BelloBahena, ___ F.3d ___ (9th Cir. June 15, 2005). 

13982 UNITED STATES v. RESENDIZ-PONCE
potential interpretations of the government’s remaining argument as a ground for salvaging the defective indictment. 

The government relies on dicta from a 1921 decision to

argue that the overt act related to an attempted reentry is an

actual reentry. Mills v. United States, 273 F. 625, 627 (9th

Cir. 1921) (“The attempt is in itself . . . the act of crossing the

boundary line into the United States.”); quoted in United

States v. Corrales-Beltran, 192 F.3d 1311, 1319-20 (9th Cir.

1999). Mills stands only for the proposition that an actual

entry is a possible means of violating a statute criminalizing

attempted entry, not that it is the only means and that its

occurrence is therefore necessarily implied by an attempt

charge. Id.; accord United States v. Rivera-Relle, 333 F.3d

914, 921 (9th Cir. 2003) (“The fact that an alien may have

completed an entry into the United States does not, in any

way, preclude a conviction for attempted entry.”). Nothing in

these cases suggests that an indictment for attempted entry

always or even often implies an actual entry. 

[3] The second interpretation of the government’s argument

is that the indictment implicitly alleged that Resendiz committed the overt act of physically crossing the border by stating

that “[o]n or about June 1, 2003, Juan Resendiz-Ponce . . .

intentionally attempted to enter the United States at or near

San Luis.” On this interpretation, apparently endorsed by the

district court, Resendiz’ current physical presence in the

United States warrants the inference that he physically

crossed the border, thus rendering the indictment sufficient. It

is true that any facts “necessarily implied” by an indictment

are presumptively charged. See, e.g., United States v. Hinton,

222 F.3d 664, 672 (9th Cir. 2000). However, there is an

essential logical distinction between what is implied by the

language of the indictment and what is implied by facts outside the four corners of the indictment. Neither common

knowledge nor appraisal of probabilities will take the place of

an omitted but essential allegation. 

UNITED STATES v. RESENDIZ-PONCE 13983
[4] Failure to allege an essential element of the offense is

a fatal flaw not subject to mere harmless error analysis. See,

e.g., United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.

1999) (“if properly challenged prior to trial, an indictment’s

complete failure to recite an essential element of the charged

offense is not a minor or technical flaw subject to harmless

error analysis, but a fatal flaw requiring dismissal”). The purpose of this rule is to secure the basic institutional purpose of

the grand jury, by ensuring that a defendant is not “convicted

on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him.” United States v.

Keith, 605 F.2d 462, 464 (9th Cir. 1979); quoted in Du Bo,

186 F.3d at 1179. As the Supreme Court has explained, this

purpose has its constitutional roots in the Fifth and Sixth

Amendments and historical roots in the English common-law

tradition. Russell v. United States, 369 U.S. 749, 770 (1962).

While this protection may not extend to incidentals and

details unnecessary to a conviction, an overt act that is a substantial step toward underlying offense is at the very core of

an attempt charge. Cf. United States v. Hinton, 22 F.3d 664,

672 (9th Cir. 2000) (holding that a slight discrepancy in dates

and locations between the grand jury indictment and the facts

proved at trial was “not significant”). The defendant has a

right to be apprised of what overt act the government will try

to prove at trial, and 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. Instead, the

indictment merely alleged that Resendiz “attempted to enter”

the United States, which simply repeats the ultimate charge

against him. 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. 

13984 UNITED STATES v. RESENDIZ-PONCE
[5] Relying on Du Bo, we reversed a conviction for

attempted reentry in violation of § 1326, where the indictment

failed to explicitly allege specific intent, without inquiring

whether the omission prejudiced the defendant. United States

v. Pernillo-Fuentes, 252 F.3d 1030 (9th Cir. 2001). We now

hold that failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for

attempted entry following deportation under 8 U.S.C. § 1326.

Accordingly, we reverse the judgment against Resendiz and

direct the district court to dismiss the indictment without prejudice to reindictment. 

REVERSED and REMANDED.

REAVLEY, Circuit Judge, concurring: 

I must concur because of this circuit’s precedent, but I fail

to see any other reason for this holding. 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. 1

CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE

& PROCEDURE CRIMINAL § 125 (3d ed. 2000 & Supp. 2005).

This indictment does that.

The indictment informs us when and where the defendant

intentionally tried to enter the country without consent. The

indictment was sufficiently clear to enable Resendiz to prepare his defense. Resendiz raises no contention that he

received inadequate notice of the crime charged, nor does he

contend that he did not present false identification nor make

inaccurate statements at the border, as government agents testified. His contention is only that the indictment failed to

charge him with attempting to enter illegally because it does

not contain a laundry list of the actions he took in doing so.

UNITED STATES v. RESENDIZ-PONCE 13985
It is “inconceivable” that Resendiz would have presented a

different defense if the indictment had been more detailed.

United States v. James, 980 F.2d 1314, 1319 (9th Cir. 1992).

Likewise, the indictment’s reference to a specific date and

place where Resendiz attempted to enter the United States is

sufficient to allow him to claim double jeopardy if he is again

charged with the same crime. 

This circuit has incorporated the common law meaning of

attempt into the crime of attempted illegal reentry under

§ 1326 and now requires the elements of that definition,

including commission of an overt act, to be in the indictment.

However, the legal definition of “attempt” 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.

Hamling v. United States, 418 U.S. 87, 118-19 (1974) (finding an obscenity indictment sufficient even though it followed

statutory language and did not particularize the various elements required to constitute obscenity). As Professor Wright

observed, and numerous courts have echoed, “[t]he test for

sufficiency ought to be whether it is fair to defendant to

require him or her to defend on the bases of the charge as

stated in the particular indictment or information. The stated

requirement that every ingredient or essential element of the

offense should be alleged must be read in the light of the fairness test just suggested.” WRIGHT & MILLER § 125. 

The indictment charged Resendiz with “knowingly and

intentionally” attempting to enter the country in violation of

§ 1326 and thus fairly implied that he committed an overt act

in doing so. The judge directed the jury to convict Resendiz

under §1326 only if it found beyond a reasonable doubt that

he “intentionally committed an overt act that was a substantial

step towards reentering the United States.” Resendiz was adequately informed of his offense and no unfairness resulted

from requiring him to defend on the basis of the charge as

stated. The indictment should pass muster and would do so in

other circuits. See, e.g. United States v. Blackburn, 9 F.3d 353

13986 UNITED STATES v. RESENDIZ-PONCE
(5th Cir. 1993) (finding indictment for bank fraud sufficient,

notwithstanding defendant’s contention that it was fatally

defective for failure to allege elements “knowingly” and “executes or attempts to execute,” because indictment fairly

imported all elements and included statutory section number).

While the panel faults the indictment for failure to include

more detail, the test is not whether the indictment could have

been framed in a more satisfactory manner, but whether it

conforms to minimal constitutional standards. United States v.

Hinton, 222 F.3d 664, 672 (9th Cir. 2000). Respectfully but

boldly, I caution against the abandonment of common sense

such as that illustrated in two cases that bedeviled the Texas

courts for years. See Northern v. State, 203 S.W.2d 206 (Tex.

Crim. App. 1947) (holding that an indictment charging that

defendant killed the deceased by kicking and stomping her

without charging that defendant stomped with his feet was

fatally defective as failing to charge the means employed in

commission of the offense) implied overruling recognized by

Vaughn v. State, 607 S.W.2d 914 (Tex. Crim. App. 1980);

Gragg v. State, 186 S.W.2d 243 (Tex. Crim. App. 1945)

(holding that an indictment charging that defendant killed his

wife by drowning her was defective as not alleging the manner and means used to accomplish the drowning). 

UNITED STATES v. RESENDIZ-PONCE 13987