SCOTUS Holds Attempted Illegal Reentry Indictment Need Not Allege An Overt Act; Undermines 5th Cir. Precedent on Elements of Attempted Illegal Reentry

Today the Supreme Court handed down its decision in United States v. Resendiz-Ponce, No. 05-998 (U.S. Jan. 9, 2007). As covered here, what began as a case about whether the omission of an element from an indictment can be harmless error became a case about the elements of attempted illegal reentry and the specificity required of an indictment for that offense. The Court wound up holding that although an overt act is an element of attempt, "an indictment alleging attempted illegal reentry under §1326(a) need not specifically allege a particular overt act or any other 'component par[t]' of the offense." Slip op. at 5. Consequently, the Court didn't reach the harmful error question on which it originally granted cert.

But what's particularly significant for those of us in the Fifth Circuit is how the Court arrived at its holding. It concluded that attempted illegal reentry includes the common law elements of attempt (intent to commit the object crime + an overt act that constitutes a substantial step towards completing the offense), and that "the word 'attempt' . . . encompasses both the overt act and intent elements." Slip op. at 4-5. That's significant because the Court's imputation of the common-law elements of attempt to §1326(a) undermines Fifth Circuit precedent regarding whether attempted illegal reentry (as opposed to a completed illegal reentry) requires general or specific intent, an issue that has divided the circuits.

In United States v. Gracidas-Ulibarry, the Ninth Circuit held that attempted illegal reentry is a specific intent crime requiring proof not only that the defendant intended to enter the United States, but that he intended to do so without the consent of the Attorney General (now the Secretary of the Department of Homeland Security). 231 F.3d 1188 (9th Cir. 2000) (en banc). That holding rests on two key premises. First, the term "attempt" has an established common-law meaning, and at common law "the crime of attempt requires a showing of specific intent even if the crime attempted does not." Id. at 1192 (quotation marks and citation omitted). Second, "[w]hen Congress has used a term that has a settled common law meaning, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of that term." Id. at 1193 (quotation marks and citations omitted). The Court concluded that Congress did not intend for "attempt" to have a different meaning in §1326(a), and that attempted illegal reentry therefore requires specific intent.

The Fifth Circuit expressly rejected Gracidas-Ulibarry's common-law interpretation of attempted illegal reentry in United States v. Morales-Palacios, 369 F.3d 446 (5th Cir. 2004). It concluded that "the Supreme Court has clearly instructed that the scope of the [canon] on imputing common-law meaning does not sweep so broadly as to apply to the unique nature of regulatory crimes." Id. at 447 (citations omitted). The court viewed attempted illegal reentry as the type of regulatory offense to which those Supreme Court cases referred, and went on to hold that "a specific intent requirement is unnecessary, because the regulatory nature of the statute makes the presumption of unlawful intent conclusive." Id. at 448.

Although Resendiz-Ponce focused on the overt act element of common-law attempt rather than the specific intent element, its clear endorsement of a common-law reading of the attempt portion of §1326(a) unquestionably undermines the Fifth Circuit's reasoning in Morales-Palacios. For that reason, it appears that the Fifth Circuit will have to revisit the issue of specific intent in a future case (as will the Second and Fourth Circuits, which have likewise held that attempted illegal reentry is a general intent offense). (For an example of circumstances in which specific-vs.-general intent would be an issue, see United States v. Morales-Tovar, 37 F. Supp. 2d 846 (W.D. Tex. 1999).)