Criminal Appeal

Defective Indictment Subject To Harmless Error Review? What Defective Indictment?

In an 8-1 majority opinion authored by Justice Stevens, the U.S. Supreme Court held that a federal indictment charging the defendant with illegally attempting to reenter the United States was not defective because it failed to allege a specific overt act committed in seeking reentry. Thus, the Court did not reach the question for which it originally granted cert in United States v. Resendiz-Ponce: whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. According to the Court, the indictment implicitly alleged that the defendant engaged in the necessary overt act simply by alleging that he "attempted" to enter the United States. In the Court's view, the word "attempt" encompasses both the overt act and intent elements. Therefore, an indictment alleging attempted illegal reentry need not specifically allege a particular overt act or any other component part of the offense.

Justice Scalia, in his customary fashion, filed a dissent that failed to mask his incredulity with the majority's approach, which he twice referred to as "certainly irrelevant and probably incorrect." Justice Scalia maintained that the government was required to allege in the indictment not only that the defendant knowingly and intentionally attempted to enter the United States but also that he took a substantial step toward that end. Because Justice Scalia would have held the indictment defective, he proceeded to address the question for which the Court originally granted cert. By reference only to his own opinions in other cases, Justice Scalia tersely noted that he, as the Ninth Circuit concluded, would find the error to be structural and therefore not subject to harmless error analysis.

Sentencing for Illegal Reentry Following Removal (8 USC 1326(b)(2)) Proper Even if Deportation Was Before Removal Language Became Law; Blakely Application Deferred. U.S. v. Nunez-Rodelo, no. 03-10660 (9th Cir., July 29, 2004).

Because "removal" is just new nomenclature, there is no distinction between removal and deportation for purposes of sentencing under 1326(b)(2).

Judge Fernandez provided this helpful commentary on the appellant's argument: "That might be an interesting, if somewhat banausic, argument if Congress and we had not already spoken to the issue. As it is, the argument is little more than logomachy."

In a footnote, the Court noted that the defendant "also asserts that the elements of 8 U.S.C. § 1326(b)(2) must be pled in the indictment and proved to a jury beyond a reasonable doubt. In light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, ___ L. Ed. 2d ___ (2004), we have withdrawn submission of that issue pending further order of this court." This case is not over, as evidenced by the unusual concluding disposition: "AFFIRMED on the issue discussed herein."

Panel: Fernandez, Paez, and Clifton.

Convictions and Sentence for Attempted Illegal Reentry Affirmed.
U.S. v. Martinez-Martinez, no. 03-50230.

In this attempted illegal re-entry case, the Ninth Circuit rejected the appellant's claims that the district court erred in

(1) denying his motion to challenge an ostensibly biased juror for cause; (2) refusing to instruct the jury regarding the issue of a drug-induced blackout; (3) improperly tolling the Speedy Trial Act; (4) declining to dismiss the indictment based on the government’s failure to take a blood or urine sample; (5) permitting the government to impeach Martinez with a prior felony conviction; and (6) rejecting Martinez’s motion to adjust downward based on his acceptance of responsibility. In addition, Martinez urges the panel to overturn his conviction on the basis of (7) the cumulative effect of errors committed at his trial.

Panel: Cynthia Holcomb Hall (author), Stephen S. Trott, and Consuelo M. Callahan

Listen to the March 30 oral argument. (Ninth Circuit audiofiles are posted only for three months after oral argument.)

9th Cir.: Collateral Attack on Deportation Proceedings

In U.S. v. Pallares-Galan, 02-10532, the Ninth Circuit, in an appeal following a conditional guilty plea, reversed a conviction for unlawful reentry by a deported alien, having found that the underlying deportation proceedings were procedurally defective. The Court found the defendant's California conviction for annoying/molesting a minor (Cal. Pen. Code § 647.6(a)), was not categorically an aggravated felony. This finding rendered erroneous the Immigration Judge's advice, in the deportation proceedings, that he was not eligible for the discretionary relief of cancellation of removal. Which, in turn, rendered his waiver of his right to appeal the deportation neither considered nor intelligent. His collateral attack on the deportation was not barred by the exhaustion requirement and he was deprived of a meaningful opportunity for administrative and judicial review. The court remanded for a finding as to whether Pallares was prejudiced by the procedural defects.

Of interest to appellate litigators might be the court's rejection of the government's argument that plain error review applied because the appellant had not argued in the district court that the annoying/molesting offense was not categorically an aggravated felony. Applying the doctrine that claims, but not arguments, are waived and noting that the defendant had consistently argued in the district court that the offense was not an aggravated felony, the court refused to find a waiver and refused to apply plain error review.

Judge Stephen Reinhardt wrote the opinion.