## Facts

- Juan Resendiz-Ponce, a Mexican citizen, had been previously deported from the United States.
- In June 2003, he sought to enter the United States at or near the San Luis, Arizona port of entry using identification documents belonging to his cousin.
- Border agents detected that he did not resemble the photograph on the identification and sent him to secondary inspection.
- After inconsistent statements during inspection, agents detained him.
- A federal grand jury indicted him under 8 U.S.C. § 1326(a) for attempted reentry after deportation, alleging that he “knowingly and intentionally attempted to enter” the United States at a specified time and place.
- The indictment did not describe any particular overt act constituting the alleged attempt.

## Issues

1. Whether an indictment charging attempted reentry under 8 U.S.C. § 1326(a) is constitutionally sufficient when it alleges the defendant “attempted” to enter the United States at a specified time and place but does not allege a specific overt act (substantial step).
2. Whether the omission of an element from a federal indictment can be treated as harmless error (raised by the petition, but contingent on finding a defect).

## Decision

- The Supreme Court reversed the Ninth Circuit and held, 8–1, that the indictment was not defective.
- The Court held that alleging the defendant “attempted” to enter, together with time and place, sufficiently alleges the attempt offense for constitutional and Rule 7(c)(1) purposes.
- Because the indictment was adequate, the Court did not decide whether omission of an element from an indictment can be harmless error.
- Justice Scalia dissented, concluding that failure to allege a concrete overt act omitted an essential element and required dismissal.

## Legal Principles

- A federal indictment is sufficient if it (1) contains the elements of the offense and fairly informs the defendant of the charge, and (2) enables the defendant to plead a prior conviction or acquittal to bar a later prosecution for the same offense.
- For attempt crimes, the term “attempt” has a settled legal meaning that includes both intent and an overt act (substantial step); an indictment may satisfy the overt-act component by charging that the defendant “attempted” the offense.
- Under Federal Rule of Criminal Procedure 7(c)(1), an indictment must provide a plain, concise statement of essential facts; not every offense requires allegation of additional detail beyond statutory language, time, and place.
- Heightened specificity is required only when statutory language is too generic to give adequate notice or double-jeopardy protection; attempted illegal reentry under § 1326(a), as charged here, did not require more detailed factual pleading.

## Conclusion

The Court held that an indictment for attempted illegal reentry after deportation need not list a specific overt act so long as it charges that the defendant “attempted” to reenter and identifies the relevant statute, time, and place, thereby providing adequate notice and double-jeopardy protection.


United States v. Resendiz-Ponce, 549 U.S. 102 (2007)