Thanks SCOTUSBlog for putting up the link to the oral argument transcript in United States v. Resendiz-Ponce.
Only Justices Scalia and Souter seemed to get it. In Justice Souter's words, "When is an indictment not an indictment?" When it leaves out an element of the offense, perhaps?
This case involves attempt to re-enter the U.S. case. But the federal indictment did not allege what the substantial step was that constituted the attempt. (The Ninth Circuit seems to have discussed the matter in terms of "overt acts," which is conspiracy, and not attempt, language. Was it driving to the border? Was it presenting false identification? Was it having breakfast?
The government's position was pretty simple: the guy was convicted by a petit jury, properly instructed about all the elements. Any deficiency in the indictment was harmless and ought to be treated as such. This, even though Resendiz-Ponce objected to and moved to quash the indictment, which motion the district court denied.
If federal law requires that an indictment allege an attempt's substantial step with specificity--and Justice Breyer said he had read up on the subject and was not sure--then no substantial step in the indictment, it seems to me, means no indictment. If there's no indictment, how can that absence be subject to harmless error analysis in light of the Fifth Amendment's indictment requirement?
The government argued that there are 70-80,000 indictments a year; prosecutors do get indictments wrong; we should count on district court judges to get it right; and even when they don't, it doesn't matter so long as a conviction results. The government's position--which I would find laughable, if a number of justices had not seemed to take it seriously--is that later conviction by a properly instructed petit jury will always make the omission of an element in an indictment harmless.
But let's just say that there are six possible acts that could have been proved the substantial step in this case. Is it too much to ask that the goverment go get a superceding indictment that alleges at least one, and maybe all six, of the acts? It could have done it in this case, before a trial. If later, at trial, the government proves a seventh act instead of one of the six, at least harmlessness can by analyzed in terms of prejudice caused by the degree of variance from the indictment.
If the government wins this one, the Fifth Amendment's indictment requirement will have been relegated doctrinally to irrelevance, it seems to me. I'm not saying that it's not almost irrelevant, practically speaking, now.
Maybe the Supreme Court will punt this one. See SCOTUSBlog's procedural analysis of the argument here, which I read as suggesting a deep drop and a kick.
On the third hand, if the government loses on the merits, the decision could, arguably, have a big Blakely effect. Aggravating circumstances are now elements. The reason a loss on the merits by Uncle Sam might not have much Blakely bang at all is that the decision would be grounded in the Fifth Amendment's indictment requirement.
Indiana does not have an indictment requirement. The law is clear, though, that a charging information has to allege the specific substantial step that was taken in an attempt. This is really no different from the requirement that a burglary charge allege the specific felony the burglar had the intent to commit when breaking in, e.g., theft.
But Indiana has it's own areas of movement toward trial on a bus. There's Lee v. State, which I have included in the sidebar as a Blatant Indecency. In Lee, the Indiana Supreme Court said that one cannot complain of a plainly illegal sentence, if one benefitted in a plea bargain of which the illegal sentence was a part. It is very hard to square that with the legion cases that say judges only have the power to impose sentences authorized by statute and that illegal sentences constitute fundamental error that may be raised for the first time on appeal. And Lee, a 1994 case, continues to have legs. An illegal sentence was affirmed on the strength of Lee just the other day in Borders v. State, Court of Appeals No. 79A02-0603-CR-180 (Ind. Ct. App. September 29, 2006).
And then there is a much older case, Floyd v. State, 650 N.E.2d 28 (Ind. 1994), which is really seven cases rolled into one. The upshot of Floyd is that anyone is a judge, so long as everyone agrees that she is. (Hard to square Floyd's upshot with its opening shot: "The Indiana Constitution requires that judicial acts be performed only by judges. Ind. Const. art. 7, § 1. Thus, only a duly elected or appointed judge of the court or a duly appointed judge pro tempore or special judge may enter an appealable final judgment, including a criminal sentence. When a court official who is not a duly elected or appointed judge of the court purports to make a final order or judgment, that decision is a nullity.")
Trials on a bus cost the administrative state very little; and the administrators are winning. I guess we'll see if they win Resendiz-Ponce.
Cunningham coming up.