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No. 05-998

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

JUAN RESENDIZ-PONCE

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 05-998

UNITED STATES OF AMERICA, PETITIONER

v.

JUAN RESENDIZ-PONCE

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE UNITED STATES

By order dated October 13, 2006, the Court directed the parties to file supplemental briefs addressing the following question: "Did the indictment omit an allega tion that was required by the Fifth Amendment?" The court of appeals held that the indictment in this case was deficient because it alleged only that respondent had engaged in an "attempt[]" to reenter the United States unlawfully on a specified date and at a specified place. See Pet. App. 3a-6a. In its petition for a writ of certio rari, the United States did not seek review of that hold ing. See Pet. 9 n.3. The position of the United States, however, is that the indictment in this case is in all respects constitutionally valid.1

A. An Indictment For The Offense Of Attempted Unlawful Reentry Need Only Allege That The Defendant At tempted To Reenter The Country, Not That The Defen dant Took A Substantial Step Toward Reentry

The indictment in this case charged respondent with one count of attempting to reenter the United States after deportation, in violation of 8 U.S.C. 1326(a). As relevant here, that statute imposes criminal penalties on "any alien who * * * has been denied admission, ex cluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter * * * at tempts to enter * * * the United States" without the consent of the Attorney General (now the Secretary of the Department of Homeland Security, see 6 U.S.C. 202(4), 557 (Supp. IV 2004)). The indictment expressly indicated that respondent was being charged under 8 U.S.C. 1326(a) and further alleged as follows:

On or about June 1, 2003, JUAN RESENDIZ- PONCE, an alien, knowingly and intentionally at tempted to enter the United States of America at or near San Luis in the District of Arizona, after having been previously denied admission, excluded, de ported, 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.

J.A. 8. Because the indictment sufficiently alleged all of the elements of the offense of attempted unlawful reen try, it satisfied the requirements of the Grand Jury Clause of the Fifth Amendment.

1. As the government explained in its opening brief (at 9-10), this Court has repeatedly held that the Grand Jury Clause requires that every element of a criminal offense be charged in a federal indictment. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998); United States v. Miller, 471 U.S. 130, 136 (1985); Hamling v. United States, 418 U.S. 87, 117 (1974). The purpose of that requirement is to ensure that the grand jury has considered all of the elements of the offense before deciding to indict. Cf. United States v. Calandra, 414 U.S. 338, 343 (1974) (noting that the responsibilities of the grand jury include "the determination whether there is probable cause to believe a crime has been com mitted and the protection of citizens against unfounded criminal prosecutions").

In order to satisfy the requirement that all of the elements of the offense be charged, it is ordinarily suffi cient if the indictment "set[s] forth the offense in the words of the statute itself." Hamling, 418 U.S. at 117; see Potter v. United States, 155 U.S. 438, 444 (1894); United States v. Staats, 49 U.S. (8 How.) 41, 44 (1849); United States v. Gooding, 25 U.S. (12 Wheat.) 460, 473- 474 (1827); see also, e.g., United States v. Webster, 125 F.3d 1024, 1029-1030 (7th Cir. 1997), cert. denied, 522 U.S. 1051 (1998); United States v. American Waste Fi bers Co., 809 F.2d 1044, 1046-1047 (4th Cir. 1987). That rule applies unless the terms of the statute do not "fully, directly, and expressly, without any uncertainty or am biguity, set forth all the elements necessary to consti tute the offense intended to be punished." Hamling, 418 U.S. at 117 (quoting United States v. Carll, 105 U.S. 611, 612 (1882)). The classic application of that exception is where a mens rea requirement is read into a statute whose text lacks such a requirement (e.g., Staples v. United States, 511 U.S. 600, 619 (1994)). See United States v. Opsta, 659 F.2d 848, 849-850 (8th Cir. 1981).

2. While an indictment must set out all of the ele ments of the charged offense, it need not elaborate on all of the ingredients of those elements. Of most relevance here, where a statute contains a term of art that has a "definite * * * legal meaning," it is unnecessary for the indictment to include all the "various component parts" that constitute the legal definition of that term. Hamling, 418 U.S. at 118-119; see Staats, 49 U.S. (8 How.) at 44 (noting that, "when words or terms of art are used in the [statutory] description [of the offense], that have a technical meaning at common law, these should be followed, being the only terms to express in apt and legal language the nature and character of the crime").2 Thus, in Hamling, the Court held that an in dictment alleging that the defendant had mailed "ob scene" material was sufficient for purposes of the Grand Jury Clause, even though the indictment failed to allege that the material met the legal definition of "obscenity": viz., by specifying that, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appealed to the prurient interest. See 418 U.S. at 118-119 (citing Roth v. United States, 354 U.S. 476 (1957)).3

3. Where an indictment charges a defendant with an "attempt" offense, it is unnecessary for the indictment expressly to state that the defendant took a "substantial step" toward completion of the corresponding substan tive offense. Like the word "obscene," the word "at tempt" is a term of art with a "definite * * * meaning" in federal criminal law. Hamling, 418 U.S. at 118-119. It has long been recognized-and, indeed, it is com monly understood-that, in order to engage in an unlaw ful "attempt," a defendant must take some action toward the completion of the corresponding offense. See, e.g., Model Penal Code § 5.01 commentary at 38-47 (Tenta tive Draft No. 10, 1960); Edwin R. Keedy, Criminal At tempts at Common Law, 102 U. Pa. L. Rev. 464, 474 (1954). In an effort to harmonize the various (similar if not identical) formulations used by courts to specify the conduct that constitutes an "attempt," see ibid., the Model Penal Code defined an "attempt" as "an act or omission constituting a substantial step in a course of conduct planned to culminate in [the defendant's] com mission of the crime." Model Penal Code § 5.01(1)(c) (1962).

Although there is no general federal statute that ex pressly defines the conduct element of an "attempt," the Model Penal Code's formulation has been widely adopted by courts construing the many federal statutes that criminalize attempts.4 In fact, every federal court of appeals has construed at least one federal attempt statute to require that the defendant take a "substantial step" toward the completion of the corresponding sub stantive offense.5

The offense of attempted unlawful reentry, in viola tion of 8 U.S.C. 1326(a), is no different from other fed eral attempt offenses in that regard. Some courts have expressly stated that the offense of attempted unlawful reentry requires a substantial step toward unlawful re entry. See United States v. Marte, 356 F.3d 1336, 1344- 1345 (11th Cir. 2004); United States v. De Leon, 270 F.3d 90, 92 (1st Cir. 2001). Others, in listing the ele ments of that offense, have said only that the govern ment must show that the defendant "attempted" to reen ter the country unlawfully-relying on the accepted le gal meaning of an "attempt" to supply the requisite com ponents of that element. See, e.g., United States v. Ro driguez, 416 F.3d 123, 128 (2d Cir. 2005), cert. denied, 126 S. Ct. 1142 (2006); United States v. Gallagher, 83 Fed. Appx. 742, 744 (6th Cir. 2003); United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-1132 (5th Cir. 1993).

4. In United States v. Gracidas-Ulibarry, 231 F.3d 1188 (2000) (en banc), the Ninth Circuit stated, in listing the elements of the offense of attempted unlawful reen try, that one element of that offense is that "the defen dant committed an overt act that was a substantial step towards reentering without * * * consent." Id. at 1196. Although the Ninth Circuit's definition of the con duct element introduces the phrase "overt act" (a phrase now typically associated with the law of conspiracy, see, e.g., 18 U.S.C. 371), it does not appear to diverge sub stantively from the Model Penal Code's definition of an attempt offense, and therefore appears correctly to de fine the conduct element of the offense of attempted unlawful reentry.6

The Ninth Circuit erred in this case, however, to the extent that it held, based on Gracidas-Ulibarry, that respondent's indictment was constitutionally deficient because it did not expressly state that respondent had taken a "substantial step" toward the completion of re entry (or engaged in an "overt act" that constituted such a "substantial step"). See Pet. App. 3a-6a. Because it is well established that, for purposes of a federal criminal statute, an "attempt" requires a substantial step toward the completion of the offense, the indictment in this case sufficiently alleged the conduct element of the offense of attempted unlawful reentry simply by alleging that the defendant "attempted to enter the United States" un lawfully. That allegation mirrored the statutory lan guage and subsumed the legal requirements to commit an attempt.

Although no other court appears to have addressed such a claim with regard to the offense of attempted unlawful reentry specifically, and although there is a paucity of precedent on the issue with respect to other federal attempt offenses, a number of courts have re jected claims that indictments for other federal attempt offenses must allege, in so many words, that the defen dant took a "substantial step" toward the completion of the corresponding offense. See, e.g., United States v. Toma, No. 94-CR-333, 1995 WL 65031, at *1 (N.D. Ill. Feb. 13, 1995) (holding that, "for indictment purposes, use of the word 'attempt' is sufficient to incorporate the substantial step element," on the ground that "[t]he word 'attempt' necessarily means taking a substantial step" and "it is the language of the statute and the lan guage of the statute generally is sufficient to state a charge"; see also, e.g., United States v. McDarrah, No. 05-CR-1182 (PAC), 2006 WL 1997638, at *8 (S.D.N.Y. July 17, 2006); United States v. Wood, 6 F. Supp. 2d 1213, 1218 (D. Kan. 1998).

5. A rule that required an indictment for an "at tempt" offense to recite that the defendant took a "sub stantial step" toward completion of the corresponding substantive offense would cast doubt on numerous fed eral indictments, because, in drafting indictments, fed eral prosecutors frequently allege merely that the de fendant "attempted" to engage in the substantive of fense. See, e.g., United States v. Crayton, 357 F.3d 560, 567 (6th Cir.) (indictment charging that the defendant "did attempt to knowingly and intentionally possess with intent to distribute . . . cocaine"), cert. denied, 542 U.S. 910 (2004). And it would effectively require the indictment to contain the same level of particularity as a petit jury instruction with regard to the conduct ele ment of an "attempt" offense-in serious tension not only with the Grand Jury Clause as it has hitherto been construed, but also with the rule that an indictment need only contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1).7

More generally, prevailing federal practice typically relies on incorporating the language of the statute into an indictment in order to convey to the defendant the legal meaning and subsidiary requirements of the charged offense. Indictments for mail fraud (18 U.S.C. 1341) charge that a defendant engaged in a "scheme or artifice to defraud." Indictments for murder (18 U.S.C. 1111) charge that a defendant acted with "malice afore thought." Indictments for extortion (18 U.S.C. 1951) charge that a defendant acted "under color of official right." Indictments for civil rights violations (18 U.S.C. 242) charge that a defendant acted "under color of law." All of these terms, as explicated in case law, contain sub- components that a jury must find in order to return a verdict of guilty.8 But it would seriously depart from the manner in which federal prosecutors typically frame indictments to hold that the charging instrument must spell out all of those subcomponents.

B. An Indictment For The Offense Of Attempted Unlawful Reentry Need Not Specify The Specific Steps That The Defendant Took Toward Reentry

The court of appeals seemingly suggested that the indictment in this case was constitutionally deficient not only because it did not expressly state that respondent had taken a "substantial step" toward the completion of reentry, but also because it did not specify what step (or steps) respondent had taken: e.g., by alleging that re spondent had presented false identification at a port of entry. See Pet. App. 3a-6a. But the Fifth Amendment does not require that an indictment include the factual means by which the government will prove the elements of an offense. And because the indictment did provide sufficient factual detail to allow respondent to prepare his defense, it afforded respondent sufficient notice of the charged offense for purposes of the Grand Jury Clause of the Fifth Amendment and other constitutional provisions.

1. As the government explained in its opening brief (at 24-25), the Constitution requires that, in a federal or state prosecution, a defendant be given notice of the nature of the charge against him. A claim that an indict ment is deficient because it fails to provide sufficient notice of the charge is conceptually distinct from a claim that the indictment is deficient because it fails to allege all of the elements of the offense. A notice claim is tex tually rooted in the Sixth Amendment, which provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to * * * be informed of the nature and cause of the accusation." See, e.g., United States v. Cruikshank, 92 U.S. 542, 558 (1876) (stating that, under the Sixth Amendment, "the indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged") (citation and internal quotation marks omit ted). This Court has also suggested that it is rooted, at least to some extent, in the Grand Jury Clause itself. See, e.g., Hamling, 418 U.S. at 117 (noting, apparently in reliance on the Grand Jury Clause, that an indictment not only must "contain[] the elements of the offense charged," but also must "fairly inform[] a defendant of the charge against which he must defend").

2. The indictment in this case was valid because it provided sufficient factual detail to enable respondent to prepare his defense. While this Court has repeatedly stated that the indictment must set forth the alleged crime "with reasonable particularity of time, place, and circumstances," United States v. Hess, 124 U.S. 483, 488 (1888) (quoting Cruikshank, 92 U.S. at 558), it has also cautioned that an indictment need not include all of the facts that the government intends to prove at trial. See, e.g., Stirone v. United States, 361 U.S. 212, 218 (1960) (suggesting that an indictment may be drawn "in gen eral terms"); Cochran v. United States, 157 U.S. 286, 290 (1895) (noting that there are "[f]ew indictments * * * which might not be made more definite by addi tional allegations" but that "the true test is, not whether [the indictment] might possibly have been made more certain, but whether it * * * sufficiently apprises the defendant of what he must be prepared to meet"); United States v. Britton, 107 U.S. 655, 663 (1883) (re jecting claim that factual allegation in indictment was insufficient, because a contrary result "would carry re finement in criminal pleading to an impracticable ex tent").

The Court has also repeatedly stated that it is ordi narily sufficient if an indictment merely sets forth the elements of the offense in the words of the stat ute-thereby suggesting that it is ordinarily sufficient for an indictment to provide factual detail only with re gard to non-elements such as time and place. See pp. 3- 4, supra; cf., e.g., United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999) (stating that "we have consistently upheld indictments that do little more than to track the lan guage of the statute charged and state the time and place (in approximate terms) of the alleged crime") (cita tion and internal quotation marks omitted). As to the elements themselves, an indictment that satisfies the Grand Jury Clause should generally provide sufficient notice for purposes of the Sixth Amendment. See pp. 18- 20, infra (discussing Russell v. United States, 369 U.S. 749 (1962)). Notably, this Court has upheld an indict ment that failed to specify the "particular means" by which the crime was committed, on the ground that "[t]he means of effecting the criminal intent * * * or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence to go to the jury to demonstrate the intent, and not nec essarily to be incorporated in an indictment." United States v. Simmons, 96 U.S. 360, 364 (1878) (citation omitted); cf. Fed. R. Crim. P. 7(c)(1) (stating that an indictment "may allege that the means by which the de fendant committed the offense are unknown or that the defendant committed it by one or more specified means").

When measured against those standards, the indict ment in this case was plainly sufficient. The indictment identified the date and place of the attempted unlawful reentry: i.e., that respondent attempted to reenter the country unlawfully "[o]n or about June 1, 2003, * * * at or near San Luis in the District of Arizona." Pet. App. 2a. Those factual details were sufficient to enable respondent to prepare his defense, particularly in light of the relatively finite means that an individual could use to attempt to effectuate unlawful reentry at the border (i.e., physically sneaking over the border or fraudulently seeking to enter at a port of entry). If respondent had not been present on the specified date at the specified place, his defense would in no way have been affected by the indictment's failure to identify the step (or steps) he took toward reentry. And if respondent had been pres ent at the time and place alleged, he would presumably be aware of his version of events (and therefore fully able to prepare his defense). In that regard, the indict ment in this case is closely analogous to an indictment for other simple offenses such as assault, which need at most identify the time, place, and victim of the of fense-and need not specify the means by which the offense was committed (e.g., whether the assailant wielded a candlestick or a revolver). See 4 Wayne R. LaFave et al., Criminal Procedure § 19.3(b) at 772 & n.57 (2d ed. 1999) (LaFave) (citing cases). As one com mentator has noted, "comparatively little information is needed to prepare a defense for [such] crimes." Id. at 771-772.

Respondent has conceded that he had sufficient no tice of the factual evidence that the government pos sessed of his attempted reentry, insofar as the govern ment disclosed in discovery evidence of the specific ac tions that respondent took at the border. Oral Arg. Tr. 34 (acknowledging, in response to question, that respon dent "kn[e]w beforehand that the Government was going to present evidence of two false identifications"). Re spondent instead has suggested only that the indictment provided insufficient notice of the charge against him because it did not expressly allege those specific facts. But the indictment need not provide such a specific level of detail in order to allow respondent to frame his de fense.9

3. Federal courts have routinely held that an indict ment for a federal attempt offense need not specifically allege the acts or means by which the defendant at tempted to commit the corresponding substantive of fense-even in decisions that preceded the promulgation of Federal Rule of Criminal Procedure 7(c), which sim plified the pleading standard for federal indictments. Most notably, numerous courts of appeals have rejected claims that, in an indictment for attempted tax fraud, the indictment must allege the means by which the de fendant sought to effectuate the fraud. In Hardesty v. United States, 168 F. 25 (6th Cir. 1909), the court as serted that "[i]t is not fatal * * * that the indictment does not set out the particular acts which are to be re lied upon to prove that the government was defrauded out of the tax, or an unsuccessful attempt made to so defraud." Id. at 29. Instead, the court reasoned, "[i]t is enough to charge the offense in the words of the statute, as it * * * leaves no room for doubt as to the offense charged and which the defendant is called upon to meet." Ibid. Similarly, in May v. United States, 199 F. 42 (8th Cir. 1912), cert. denied, 227 U.S. 678 (1913), the court rejected the argument that an indictment failed to "advise the defendant of the manner in which he at tempted to commit the fraud, so as to enable him to pre pare his defense." Id. at 45. The court upheld an indict ment that alleged only the time and place of the alleged fraud (and the amount that was the subject of the fraud), reasoning that "[t]o have alleged in this indictment how the defendants attempted to defraud the United States would have required a statement of much of the evidence presented at the trial." Id. at 46.

In Capone v. United States, 56 F.2d 927 (7th Cir.), cert. denied, 286 U.S. 553 (1932), the indictment alleged that the defendant, on a date certain, "well knowing all the premises, unlawfully and fraudulently did then and there willfully attempt to evade and defeat the income tax aforesaid upon his said net income" for the previous year. Id. at 929 n.3. The court rejected the defendant's argument that the indictment was invalid under this Court's decision in Cruikshank. Id. at 930-931. The court acknowledged that "the form used [in the indict ment] is indeed quite general." Id. at 931. The court reasoned, however, that the generality did not render the indictment invalid, but instead would have "abun dantly justified [the defendant] in asking the court to require the district attorney to furnish a bill of particu lars as to the specific attempts to evade and defeat." Ibid. The court concluded that the defendant "made no such request, and he now has no reason to complain." Ibid.10

More recently, federal district courts have rejected claims that indictments for various other federal at tempt offenses are deficient on the ground that they fail to identify the "substantial step" taken by the defen- dant toward the completion of the corresponding of fense. See, e.g., United States v. Gregory, No. 03-CR- 50027-1, 2003 WL 21698447, at *1 (N.D. Ill. July 21, 2003); United States v. Bolden, No. 95-40061-01, 1995 WL 783638, at *2 (D. Kan. Dec. 20, 1995). In many of those cases (as here), the defendant appears to have alleged that the indictment was also deficient because it failed to allege that the defendant had taken a "substan tial step" in the first place. See, e.g., McDarrah, 2006 WL 1997638, at *8; Wood, 6 F. Supp. 2d at 1218. In holding that an indictment that does not identify a "sub stantial step" is constitutionally valid, courts have dis agreed only as to whether the government is required to produce a bill of particulars in response to a request that it identify the step (or steps) on which it intends to rely at trial. Compare id. at 1219 (requiring bill of particu lars), with Gregory, 2003 WL 21698447, at *1 (holding that bill of particulars was unnecessary in light of the terms of the indictment and the government's "open door" discovery policy). Finally, the accepted practice under Federal Rule of Criminal Procedure 31(c) of al lowing an indictment for the completed crime to suffice for an attempt crime (such that the attempt crime need not be mentioned at all) seems difficult to square with a requirement that the indictment provide specific infor mation about the particular substantial step that under girds the attempt crime. See p. 10, note 7, supra.

In sum, federal courts have generally held that an indictment for an attempt offense need not specify the "substantial step" taken by the defendant toward the completion of the corresponding substantive offense. There is no justification for a different result in this case.

C. Neither Russell v. United States Nor Older State Court Pleading Practices Require A Federal Attempt Indict ment To Allege A Specific Substantial Step

1. This Court's decision in Russell v. United States, supra, does not compel a different conclusion. In Rus sell, the defendants were charged with refusing to an swer a question that was "pertinent to the question un der inquiry" by Congress, in violation of 2 U.S.C. 192. Russell, 369 U.S. at 752 n.2, 755. The Court held that the indictment in that case provided insufficient notice (and that the deficiency in the indictment warranted automatic reversal). Id. at 771-772. As a preliminary matter, Russell appears distinguishable on its facts, be cause the Court pointedly noted-using one defendant's case as an example-that the government in the cases before it presented a different factual theory (or no the ory at all) "[a]t every stage in the ensuing criminal pro ceeding." Id. at 768. Russell also heavily relied on a unique function of an indictment under 2 U.S.C. 192: namely, that it provide enough detail to permit federal courts to decide, as a matter of law and before trial, whether the question put to the witness was "pertinent to the question under inquiry" by Congress. 369 U.S. at 757-759, 772; see id. at 756-757.11

Russell does also suggest that, where an indictment fails to provide factual detail concerning a particularly vital element of the offense, it can "violat[e] * * * the basic principle 'that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him.'" 369 U.S. at 766 (quoting Simmons, 96 U.S. at 362). Russell, however, does not stand for the broader proposition that an indictment must allege factual detail concerning every element of the offense; instead, it deals only with special circum stances in which a particular element must be specified in order for the court and the defendant to determine what specific crime is being alleged. See id. at 764 (ex plaining that "the very core of criminality under 2 U.S.C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer" and that "[w]here guilt depends so crucially upon such a specific identification of fact * * * an indictment must do more than simply repeat the language of the criminal statute"). In so holding, the Court in no way abrogated or modified the general rule that an indict ment need only set forth the alleged crime with reason able factual particularity. See, e.g., Hess, 124 U.S. at 487-488; Cruikshank, 92 U.S. at 558. And the Court has refused to read Russell as requiring an indictment to spell out the meaning of an element that has an accepted legal definition. Hamling, 418 U.S. at 118-119. Russell has not been extended beyond the context in which it arose, and it should not be construed to require an in dictment alleging a federal attempt offense to identify a "substantial step" taken by the defendant toward the completion of the corresponding offense.

2. In the nineteenth and early twentieth centuries, many state courts held that an indictment for an attempt offense was deficient unless it specified the act that con stituted the attempt. See, e.g., Francis Wharton, A Treatise on the Criminal Law of the United States § 292, at 222 (4th ed. 1857) (stating that, while "the same particularity is not necessary [in indictments for at tempt offenses] as is required in indictments for the commission of the offense itself," "it is necessary that some act constituting such attempt (e.g., an assault,) should be laid").12 Other state courts, however, took the opposite view, and (like the more recent federal cases discussed above) held that an indictment for an attempt offense need not specify any particular act.13

To the extent that the prevailing view in state courts at one time was that an indictment must allege the act that constituted the attempt, those decisions do not shed significant light on the question presented here. First, those decisions do not appear to rest on any federal con stitutional ground. The Grand Jury Clause, of course, does not apply in state criminal prosecutions, see Hurtado v. California, 110 U.S. 516, 538 (1884), and none of those decisions appears to have relied on the Sixth Amendment's notice requirement in holding that an indictment was insufficient.

Instead, those decisions should be understood as ap plying common-law pleading requirements, which were widely used during that period and involved a "prolix and archaic form of indictment couched in Elizabethan English." Alexander Holtzoff, Reform of Federal Crim inal Procedure, 12 Geo. Wash. L. Rev. 119, 124 (1944); see 4 LaFave § 19.1(a) at 732 (noting that "courts came to demand that the pleading contain a full statement of the facts and legal theory underlying the charge"; "[i]ndictments were lengthy, highly detailed, and filled with technical jargon"; and "American courts demanded strict adherence to the technical niceties of common law pleading rules"). Those common-law pleading require ments went well beyond what the Constitution required, as this Court seemingly recognized at the time. See Gooding, 25 U.S. (12 Wheat.) at 474 (stating that, "[a]t the common law, in certain descriptions of offenses, * * * great nicety and particularity are often neces sary," but that "[i]n general * * * it is sufficient cer tainty in an indictment to allege the offence in the very terms of the statute"). As States adopted simplified pleading requirements that more closely paralleled the constitutional minimum requirements (as the federal government did with the adoption of Federal Rule of Criminal Procedure 7(c) in 1946), state courts have more frequently, if not entirely consistently, upheld indict ments for attempt crimes that do not allege a specific act.14

Second, state courts appear to have required indict ments to allege the act that constituted the attempt be cause, at the time, the meaning of the term "attempt" was still relatively uncertain. See, e.g., 1 Francis Whar ton, A Treatise on Criminal Law § 229, at 298 (11th ed. 1912) (explaining that "'attempt' is a term peculiarly indefinite" with "no prescribed legal meaning").15 In the federal system (and, indeed, in most state systems), however, the meaning of the term "attempt" is now well- settled. An indictment can therefore rely on that ac cepted legal meaning to communicate to the defendant the nature of the charge. See Jackson v. State, 8 So. 773, 773 (Ala. 1891) (holding that, because "[t]he word 'attempt' * * * in this state has a defined legal mean ing, * * * an indictment for an 'attempt' to commit an offense is not indefinite, and does not charge any act not penal"); pp. 5-7, supra.

* * * * *

The indictment in this case was constitutionally valid because it sufficiently alleged all of the elements of the offense of attempted unlawful reentry and provided re spondent with sufficient factual detail concerning the charge against him. The decision of the court of appeals may be reversed either on that ground or on the ground on which the government sought review: namely, that, even assuming that the indictment failed to allege an element of the offense, any error is harmless where, as here, a properly instructed petit jury returned a guilty verdict.

CONCLUSION

For the foregoing reasons and those stated in the government's opening and reply briefs, the judgment of the court of appeals should be reversed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

OCTOBER 2006

1 This Court may reach that issue, in its discretion, to the extent that it believes that the issue is a "predicate to an intelligent resolution of the question presented." United States v. Grubbs, 126 S. Ct. 1494, 1498 n.1 (2006) (citation omitted); see Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (reaching the question whether a liberty interest existed, despite the State's concession that it did, before considering what process was due).

2 See also 4 William Blackstone, Commentaries *306-*307 (explain ing that "in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the offence, that no other words, however synonymous they may seem, are capable of doing it," and citing as examples "trea sonably," "murdered," "feloniously," "burglariously," and "ravished").

3 This Court has repeatedly rejected challenges to particular terms in an indictment even where those terms are not legal terms of art, provided that those terms are merely tracking the relevant statute. See, e.g., United States v. Debrow, 346 U.S. 374, 377 (1953) (holding that the phrase "duly taken an oath" is known to mean taking an oath that was "authorized by a law of the United States"); Potter, 155 U.S. at 444 (holding that the word "certified" has a "commonly understood" meaning); United States v. Northway, 120 U.S. 327, 334-335 (1887) (holding that the word "abstract" is a word of "simple, popular meaning, without ambiguity"); United States v. Simmons, 96 U.S. 360, 362-363 (1878) (holding that the word "distilling" necessarily means the distilling "of alcoholic spirits").

4 See, e.g., 18 U.S.C. 81 (arson); 18 U.S.C. 545 (smuggling); 18 U.S.C. 112 (assault of foreign officials); 18 U.S.C. 1113 (murder or manslaugh ter); 8 U.S.C. 1324 (transportation of illegal aliens); 18 U.S.C. 1751 (presidential assassination or kidnaping); 18 U.S.C. 1832 (theft of trade secrets); 18 U.S.C. 1951 (robbery or extortion); 18 U.S.C. 1956 (money laundering); 18 U.S.C. 2113 (bank robbery); 18 U.S.C. 2119 (car jacking); 18 U.S.C. 2241 (aggravated sexual assault); 18 U.S.C. 2422 (enticement of a minor to engage in illegal sexual activity); 21 U.S.C. 846 (narcotics offenses); 21 U.S.C. 963 (narcotics importation offenses).

5 See, e.g., United States v. Dworken, 855 F.2d 12, 16-17 (1st Cir. 1988) (21 U.S.C. 846); United States v. Crowley, 318 F.3d 401, 407-408 (2d Cir.) (18 U.S.C. 2241(a)(1)), cert. denied, 540 U.S. 894 (2003); United States v. Kwong, 14 F.3d 189, 194 (2d Cir. 1994) (18 U.S.C. 1113); United States v. Hsu, 155 F.3d 189, 202 (3d Cir. 1998) (18 U.S.C. 1832(a)(4)); United States v. McFadden, 739 F.2d 149, 152 (4th Cir.) (18 U.S.C. 2113(a)), cert. denied, 469 U.S. 920 (1984); United States v. Redd, 355 F.3d 866, 872-873 (5th Cir. 2003) (21 U.S.C. 846); United States v. Thompson, 130 F.3d 676, 688 (5th Cir. 1997) (18 U.S.C. 1114), cert. denied, 524 U.S. 920 (1998); United States v. Yang, 281 F.3d 534, 542 (6th Cir. 2002) (18 U.S.C. 1832), cert. denied, 537 U.S. 1170 (2003); United States v. Williams, 704 F.2d 315, 321 (6th Cir.) (21 U.S.C. 846), cert. denied, 464 U.S. 991 (1983); United States v. Barnes, 230 F.3d 311, 314 (7th Cir. 2000) (18 U.S.C. 1956(a)(3)(B)); United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985) (18 U.S.C. 1512(a)(2)(A)), cert. denied, 474 U.S. 1076 (1986); United States v. Williams, 136 F.3d 547, 553 (8th Cir. 1998) (18 U.S.C. 2119), cert. denied, 526 U.S. 1003 (1999); United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987) (21 U.S.C. 843); United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir. 1999) (21 U.S.C. 841(a)(1)); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995) (18 U.S.C. 1956(a)(3)(C)); United States v. Munro, 394 F.3d 865, 869 (10th Cir.) (18 U.S.C. 2422(b)), cert. denied, 544 U.S. 1009 (2005); United States v. Bunney, 705 F.2d 378, 381 (10th Cir. 1983) (18 U.S.C. 844(i)); United States v. Plummer, 221 F.3d 1298, 1303 (11th Cir. 2000) (18 U.S.C. 545); United States v. McDowell, 705 F.2d 426, 427-428 (11th Cir. 1983) (21 U.S.C. 846); United States v. Duran, 96 F.3d 1495, 1507-1508 (D.C. Cir. 1996) (18 U.S.C. 1751(c)).

6 This case does not implicate the validity of the Ninth Circuit's actual holding in Gracidas-Ulibarry: namely, that another element of the offense of attempted unlawful reentry is that the defendant have acted with a "specific intent" to enter illegally. 231 F.3d at 1192. The indictment alleged that respondent "knowingly and intentionally" made his attempt to reenter, J.A. 8, and the court of appeals did not hold that allegation to be insufficient to allege the requisite mental state.

7 Such a rule would also be in some tension with Federal Rule of Criminal Procedure 31(c), which allows a defendant to be found guilty not only of "an offense necessarily included in the offense charged" (i.e., a lesser included offense, see Schmuck v. United States, 489 U.S. 705, 717-721 (1989)), but also of "an attempt to commit the offense charged" or "an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." It would be incongruous to conclude that a defendant, in a case like this, could be convicted of an attempt offense when the indictment charged him only with the corresponding substantive offense, but that a defendant could not be convicted of a charged attempt offense when the indictment alleges only an "attempt" and does not specifically allege a "substantial step" toward completion of the corresponding offense. See Toma, 1995 WL 65031, at *1.

8 See Neder v. United States, 527 U.S. 1, 25 (1999) (scheme to de fraud must involve "material" falsehoods); Schad v. Arizona, 501 U.S. 624, 640-641 (1991) (plurality opinion) (describing mental states that satisfy the common-law meaning of malice aforethought); Evans v. United States, 504 U.S. 255, 268 (1992) (extortion under color of official right satisfied by receipt of unauthorized payment in return for official acts); United States v. Price, 383 U.S. 787, 794 (1966) (color of official right encompasses private person willfully participating in joint activity with the State or its agents).

9 In any event, respondent would plainly be unable to show prejudice from any deficiency, in light of his concession that he had sufficient notice by the time of discovery. Respondent would therefore not be entitled to reversal on any claim of deficient notice from the indictment. See U.S. Br. 23-27.

10 See also, e.g., Reynolds v. United States, 225 F.2d 123, 126 (5th Cir.), cert. denied, 350 U.S. 914 (1955); United States v. Miro, 60 F.2d 58, 60-61 (2d Cir. 1932); Enders v. United States, 187 F. 754, 757-758 (7th Cir.), cert. denied, 223 U.S. 719 (1911). But see United States v. Ford, 34 F. 26, 27 (W.D.N.C. 1888); United States v. Ulrici, 28 F. Cas. 328, 330 (C.C.E.D. Mo. 1875) (No. 16,594).

11 This Court's precedent at the time made "pertinency" an issue of law for the court to decide. Russell, 369 U.S. at 755-756 (citing Sinclair v. United States, 279 U.S. 263 (1929)). This Court has since overruled that precedent, United States v. Gaudin, 515 U.S. 506, 519-521 (1995) (overruling Sinclair), and it has not reconsidered Russell's view about the requisites of an indictment under Section 192 in light of current doctrine.

12 See, e.g., Miller v. State, 95 So. 83, 84 (Miss. 1923); Wilburn v. State, 97 S.E. 87, 88 (Ga. Ct. App. 1918); Bond v. State, 152 P. 809, 809 (Okla. Crim. App. 1915) (per curiam); State v. Donovan, 90 A. 220, 222- 223 (Del. Gen. Sess. Ct. 1914); State v. George, 140 P. 337, 338-339 (Wash. 1914); Smith v. State, 94 N.W. 106, 107 (Neb. 1903); Hogan v. State, 39 So. 464, 465 (Fla. 1905); State v. Doran, 59 A. 440, 441 (Me. 1904); State v. Hager, 40 S.E. 393, 394 (W. Va. 1901); Kinningham v. State, 21 N.E. 911, 911 (Ind. 1889); State v. Frazier, 36 P. 58, 59 (Kan. 1894); Clark v. State, 8 S.W. 145, 145 (Tenn. 1888); State v. Colvin, 90 N.C. 717, 719 (N.C. 1884); Gandy v. State, 14 N.W. 143, 144-145 (Neb. 1882); Thompson v. People, 96 Ill. 158, 161 (1880) (per curiam); State v. Brannan, 3 Nev. 238, 239 ( 1867); State v. Wilson, 30 Conn. 500, 503-506 (1862); Commonwealth v. Clark, 47 Va. (6 Gratt.) 675, 684 (Va. Gen. Ct. 1849); Randolph v. Commonwealth, 6 Serg. & Rawle 398, 399 (Pa. 1821) (per curiam).

13 See, e.g., State v. Stevens, 65 P.2d 612, 614 (Mont. 1937); State v. Topham, 123 P. 888, 892-893 (Utah 1912); Jackson v. State, 8 So. 773, 773 (Ala. 1891); People v. Bush, 4 Hill 133, 134-135 (N.Y. Sup. Ct. 1843).

14 See, e.g., State v. Sodders, 304 N.W.2d 62, 66 (Neb. 1981); State v. Pepka, 37 N.W.2d 189, 189-190 (S.D. 1949); People v. Miller, 42 P.2d 308, 308 (Cal. 1935); State v. Wray, 253 P. 801, 802 (Wash. 1927).

15 In addition, at least some of the cases cited above involved statutes that not only required the defendant to have "attempted" to commit an underlying offense, but specifically required the defendant to have committed some "act" toward the commission of that offense. See, e.g., Thompson, 96 Ill. at 161; Commonwealth v. Clark, 47 Va. (6 Gratt.) at 677-678, 684.