UNITED STATES v. RESENDIZ-PONCE

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102 OCTOBER TERM, 2006
Syllabus
UNITED STATES v. RESENDIZ-PONCE
certiorari to the united states court of appeals for
the ninth circuit
No. 05–998. Argued October 10, 2006—Decided January 9, 2007
Respondent, a Mexican citizen, was charged with violating 8 U. S. C.
§ 1326(a) by attempting to reenter the United States after having been
deported. The District Court denied his motion to have the indictment
dismissed because it did not allege a specific overt act that he committed
in seeking reentry. In reversing, the Ninth Circuit reasoned that the
indictment’s omission of an overt act was a fatal flaw not subject to
harmless-error review.
Held: Respondent’s indictment was not defective, and, thus, this Court
need not reach the harmless-error issue. While the Government does
not dispute that respondent cannot be guilty of attempted reentry under
§ 1326(a) unless he committed an overt act qualifying as a substantial
step toward completing his goal or that “[a]n indictment must set forth
each element of the crime that it charges,” Almendarez-Torres v. United
States, 523 U. S. 224, 228, it contends that the instant indictment implic
itly alleged that respondent engaged in the necessary overt act by alleg
ing that he “attempted” to enter the country. This Court agrees. Not
only does “attempt” as used in common parlance connote action rather
than mere intent, but, more importantly, as used in the law for centuries,
it encompasses both the overt act and intent elements. Thus, an indict
ment alleging attempted reentry under § 1326(a) need not specifically
allege a particular overt act or any other “component par[t]” of the of
fense. See Hamling v. United States, 418 U. S. 87, 117. It was enough
for the indictment to point to the relevant criminal statute and allege
that respondent “intentionally attempted to enter the United States
. . . at or near San Luis . . . Arizona” “[o]n or about June 1, 2003.”
App. 8. An indictment has two constitutional requirements: “[F]irst,
[it must] contai[n] the elements of the offense charged and fairly infor[m]
a defendant of the charge against which he must defend, and, second, [it
must] enabl[e] him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.” Hamling, 418 U. S., at 117. Here,
the use of the word “attempt,” coupled with the specification of the time
and place of the alleged reentry, satisfied both. Respondent’s argument
that the indictment would have been sufficient only if it alleged any of
three overt acts performed during his attempted reentry—that he
walked into an inspection area; that he presented a misleading identifi

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103 Cite as: 549 U. S. 102 (2007)
Opinion of the Court
cation card; or that he lied to the inspector—is rejected. Respondent
is correct that some crimes must be charged with greater specificity
than an indictment parroting a federal criminal statute’s language, see
Russell v. United States, 369 U. S. 749, but the Russell Court’s reason
ing suggests that there was no infirmity in the present indictment, see
id., at 764, 762, and respondent’s indictment complied with Federal Rule
of Criminal Procedure 7(c)(1), which provides that an indictment “must
be a plain, concise, and definite written statement of the essential facts
constituting the offense charged.” Pp. 106–111.
425 F. 3d 729, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Souter, Thomas, Ginsburg, Breyer, and Alito, JJ.,
joined. Scalia, J., filed a dissenting opinion, post, p. 111.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Solicitor
General Clement, Assistant Attorney General Fisher, Kan
non K. Shanmugam, and Nina Goodman.
Atmore Baggot, by appointment of the Court, 547 U. S.
1161, argued the cause and filed a brief for respondent.*
Justice Stevens delivered the opinion of the Court.
A jury convicted respondent Juan Resendiz-Ponce, a Mexi
can citizen, of illegally attempting to reenter the United
States. Because the indictment failed to allege a specific
overt act that he committed in seeking reentry, the Court of
Appeals set aside his conviction and remanded for dismissal
of the indictment. We granted the Government’s petition
for certiorari to answer the question whether the omission
of an element of a criminal offense from a federal indictment
can constitute harmless error. 547 U. S. 1069 (2006).
Although the Government expressly declined to “seek re
view of the court of appeals’ threshold holdings that the com
*Briefs of amici curiae urging affirmance were filed for the National
Association of Criminal Defense Lawyers by Jeffrey T. Green and Pamela
Harris; for the National Association of Federal Defenders by Steven F.
Hubachek, Henry J. Bemporad, and Frances H. Pratt; and for Paul Hardy
by Herbert V. Larson, Jr., and Denise LeBoeuf.

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104 UNITED STATES v. RESENDIZ-PONCE
Opinion of the Court
mission of an overt act was an element of the offense of at
tempted unlawful reentry and that the indictment failed to
allege that element,” Pet. for Cert. 9, n. 3, “ ‘[i]t is not the
habit of the Court to decide questions of a constitutional na
ture unless absolutely necessary to a decision of the case,’ ”
Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J.,
concurring) (quoting Burton v. United States, 196 U. S. 283,
295 (1905)). For that reason, after oral argument we or
dered the parties to file supplemental briefs directed to the
question whether respondent’s indictment was in fact defec
tive. We conclude that it was not and therefore reverse
without reaching the harmless-error issue.
I
Respondent was deported twice, once in 1988 and again in
2002, before his attempted reentry on June 1, 2003. On that
day, respondent walked up to a port of entry and displayed
a photo identification of his cousin to the border agent. Re
spondent told the agent that he was a legal resident and that
he was traveling to Calexico, California. Because he did not
resemble his cousin, respondent was questioned, taken into
custody, and ultimately charged with a violation of 8 U. S. C.
§ 1326(a).1 The indictment alleged:
1 Title 8 U. S. C. § 1326 provides, in part:
“Reentry of removed aliens
“(a) In general
“Subject to subsection (b) of this section, any alien who—
“(1) has been denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, deportation, or
removal is outstanding, and thereafter
“(2) enters, attempts to enter, or is at any time found in, the United
States, unless (A) prior to his reembarkation at a place outside the United
States or his application for admission from foreign contiguous territory,
the Attorney General has expressly consented to such alien’s reapplying
for admission; or (B) with respect to an alien previously denied admission
and removed, unless such alien shall establish that he was not required to
obtain such advance consent under this chapter or any prior Act,

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Opinion of the Court
“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, deported,
and removed from the United States at or near Nogales,
Arizona, on or about October 15, 2002, and not hav
ing obtained the express consent of the Secretary of
the Department of Homeland Security to reapply for
admission.
“In violation of Title 8, United States Code, Sections
1326(a) and enhanced by (b)(2).” App. 8.
Respondent moved to dismiss the indictment, contending
that it “fail[ed] to allege an essential element, an overt act,
or to state the essential facts of such overt act.” Id., at 12.
The District Court denied the motion and, after the jury
found him guilty, sentenced respondent to a 63-month term
of imprisonment.
The Ninth Circuit reversed, reasoning that an indictment’s
omission of “an essential element of the offense is a fatal
flaw not subject to mere harmless error analysis.” 425 F.
3d 729, 732 (2005). In the court’s view, respondent’s indict
ment was fatally flawed because it nowhere alleged “any
specific overt act that is a substantial step” toward the com
pletion of the unlawful reentry.2 Id., at 733. The panel ma
jority explained:
“shall be fined under title 18, or imprisoned not more than 2 years, or
both.”
2 In the opinion of the Ninth Circuit, the five elements of the offense of
attempted reentry in violation of § 1326(a) are:
“(1) [T]he defendant had the purpose, i. e., conscious desire, to reenter the
United States without the express consent of the Attorney General; (2) the
defendant committed an overt act that was a substantial step towards
reentering without that consent; (3) the defendant was not a citizen of
the United States; (4) the defendant had previously been lawfully denied
admission, excluded, deported or removed from the United States; and

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106 UNITED STATES v. RESENDIZ-PONCE
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“The defendant has a right to be apprised of what overt
act the government will try to prove at trial, and he has
a right to have a grand jury consider whether to charge
that specific overt act. Physical crossing into a govern
ment inspection area is but one of a number of other
acts that the government might have alleged as a sub
stantial step toward entry into the United States. The
indictment might have alleged the tendering a bogus
identification card; it might have alleged successful
clearance of the inspection area; or it might have alleged
lying to an inspection officer with the purpose of being
admitted. . . . A grand jury never passed on a specific
overt act, and Resendiz was never given notice of what
specific overt act would be proved at trial.” Ibid.
Judge Reavley concurred, agreeing that Ninth Circuit
precedent mandated reversal. If not bound by precedent,
however, he would have found the indictment to be “constitu
tionally sufficient” because it clearly informed respondent “of
the precise offense of which he [was] accused so that he
[could] prepare his defense and so that a judgment thereon
[would] safeguard him from a subsequent prosecution for the
same offense.” Ibid.
II
At common law, the attempt to commit a crime was itself
a crime if the perpetrator not only intended to commit the
completed offense, but also performed “ ‘some open deed
tending to the execution of his intent.’ ” 2 W. LaFave, Sub
stantive Criminal Law § 11.2(a), p. 205 (2d ed. 2003) (quoting
E. Coke, Third Institute 5 (6th ed. 1680)); see Keedy, Crimi
nal Attempts at Common Law, 102 U. Pa. L. Rev. 464, 468
(1954) (noting that common-law attempt required “that some
act must be done towards carrying out the intent”). More
(5) the Attorney General had not consented to the defendant’s attempted
reentry.” United States v. Gracidas-Ulibarry, 231 F. 3d 1188, 1196 (2000)
(en banc).

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recently, the requisite “open deed” has been described as an
“overt act” that constitutes a “substantial step” toward com
pleting the offense. 2 LaFave, Substantive Criminal Law
§ 11.4; see ALI, Model Penal Code § 5.01(1)(c) (1985) (defining
“criminal attempt” to include “an act or omission constituting
a substantial step in a course of conduct planned to culminate
in his commission of the crime”); see also Braxton v. United
States, 500 U. S. 344, 349 (1991) (“For Braxton to be guilty of
an attempted killing under 18 U. S. C. § 1114, he must have
taken a substantial step towards that crime, and must also
have had the requisite mens rea”). As was true at common
law, the mere intent to violate a federal criminal statute is
not punishable as an attempt unless it is also accompanied
by significant conduct.
The Government does not disagree with respondent’s sub
mission that he cannot be guilty of attempted reentry in vio
lation of 8 U. S. C. § 1326(a) unless he committed an overt act
qualifying as a substantial step toward completion of his
goal. See Supplemental Brief for United States 7–8. Nor
does it dispute that “[a]n indictment must set forth each ele
ment of the crime that it charges.” Almendarez-Torres v.
United States, 523 U. S. 224, 228 (1998). It instead contends
that the indictment at bar implicitly alleged that respondent
engaged in the necessary overt act “simply by alleging that
he ‘attempted to enter the United States.’ ” Supplemental
Brief for United States 8. We agree.
Not only does the word “attempt” as used in common par
lance connote action rather than mere intent, but more im
portantly, as used in the law for centuries, it encompasses
both the overt act and intent elements. Consequently, 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. See Hamling v.
United States, 418 U. S. 87, 119 (1974). Just as it was
enough for the indictment in Hamling to allege that the de
fendant mailed “obscene” material in violation of 18 U. S. C.

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Opinion of the Court
§ 1461, see 418 U. S., at 117–118, it was enough for the indict
ment in this case to point to the relevant criminal statute
and allege that “[o]n or about June 1, 2003,” respondent “at
tempted to enter the United States of America at or near
San Luis in the District of Arizona,” 3 App. 8.
In Hamling, we identified two constitutional requirements
for an indictment: “first, [that it] contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, [that it] enables
him to plead an acquittal or conviction in bar of future prose
cutions for the same offense.” 418 U. S., at 117. In this
case, the use of the word “attempt,” coupled with the speci
fication of the time and place of respondent’s attempted ille
gal reentry, satisfied both. Indeed, the time-and-place infor
mation provided respondent with more adequate notice than
would an indictment describing particular overt acts. After
all, a given defendant may have approached the border or
lied to a border-patrol agent in the course of countless at
tempts on innumerable occasions. For the same reason, the
time-and-date specification in respondent’s indictment pro
vided ample protection against the risk of multiple prosecu
tions for the same crime.4
3 See United States v. Toma, No. 94–CR–333, 1995 WL 65031, *1 (ND
Ill., Feb. 13, 1995) (“[F]or indictment purposes, use of the word ‘attempt’ is
sufficient to incorporate the substantial step element. The word ‘attempt’
necessarily means taking a substantial step” (footnote omitted)).
4 There is little practical difference between our holding and Justice
Scalia’s position. Apparently, Justice Scalia would have found the in
dictment to be sufficient if it also stated that respondent “ ‘took a substan
tial step’ ” toward entering the United States. See post, at 116 (dissenting
opinion). Unlike the Ninth Circuit, then, Justice Scalia would not have
required the indictment to allege a particular overt act such as tendering
a false identification to a border inspector. Compare ibid. with 425 F. 3d
729, 733 (2005) (case below). With all due respect to his principled posi
tion, we think that the “substantial step” requirement is implicit in the
word “attempt,” and we do not believe that adding those four words would
have given respondent any greater notice of the charges against him or
protection against future prosecution.

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Opinion of the Court
Respondent nonetheless maintains that the indictment
would have been sufficient only if it had alleged any of three
overt acts performed during his attempted reentry: that he
walked into an inspection area; that he presented a mislead
ing identification card; or that he lied to the inspector. See
Supplemental Brief for Respondent 7. Individually and cu
mulatively, those acts tend to prove the charged attempt—
but none was essential to the finding of guilt in this case.
All three acts were rather part of a single course of conduct
culminating in the charged “attempt.” As Justice Holmes
explained in Swift & Co. v. United States, 196 U. S. 375, 396
(1905), “[t]he unity of the plan embraces all the parts.” 5
Respondent is of course correct that while an indictment
parroting the language of a federal criminal statute is often
sufficient, there are crimes that must be charged with
greater specificity. See Hamling, 418 U. S., at 117. A clear
example is the statute making it a crime for a witness sum
moned before a congressional committee to refuse to answer
any question “pertinent to the question under inquiry.” 2
U. S. C. § 192. As we explained at length in our opinion in
Russell v. United States, 369 U. S. 749 (1962), a valid indict
ment for such a refusal to testify must go beyond the words
of § 192 and allege the subject of the congressional hearing
in order to determine whether the defendant’s refusal was
“pertinent.” Based on a number of cases arising out of con
gressional investigations, we recognized that the relevant
hearing’s subject was frequently uncertain but invariably
“central to every prosecution under the statute.” Id., at
764. Both to provide fair notice to defendants and to ensure
that any conviction would arise out of the theory of guilt
5 Likewise, it would it be unrealistic to suggest that respondent actually
committed three separate attempt offenses involving three different overt
acts. Indeed, if each overt act were treated as a separate element, an
attempt involving multiple overt acts might conceivably qualify for several
separate offenses, thus perversely enhancing, rather than avoiding, the
risk of successive prosecution for the same wrong.

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Opinion of the Court
presented to the grand jury, we held that indictments under
§ 192 must do more than restate the language of the statute.
Our reasoning in Russell suggests that there was no in
firmity in the present indictment. First, unlike the statute
at issue in Russell, guilt under 8 U. S. C. § 1326(a) does not
“depen[d] so crucially upon such a specific identification of
fact.” 369 U. S., at 764. Second, before explaining the spe
cial need for particularity in charges brought under 2 U. S. C.
§ 192, Justice Stewart noted that, in 1872, Congress had
enacted a statute reflecting “the drift of the law away from
the rules of technical and formalized pleading which had
characterized an earlier era.” 6 369 U. S., at 762. Other
than that statute, which was repealed in 1948, there was no
other legislation dealing generally with the subject of indict
ments until the promulgation of Federal Rule of Criminal
Procedure 7(c)(1). As we have said, the Federal Rules
“were designed to eliminate technicalities in criminal plead
ings and are to be construed to secure simplicity in proce
dure.” United States v. Debrow, 346 U. S. 374, 376 (1953).
While detailed allegations might well have been required
under common-law pleading rules, see, e. g., Commonwealth
v. Peaslee, 177 Mass. 267, 59 N. E. 55 (1901), they surely
are not contemplated by Rule 7(c)(1), which provides that
an indictment “shall be a plain, concise, and definite written
statement of the essential facts constituting the offense
charged.” 7
6 The 1872 statute provided that “no indictment found and presented by
a grand jury in any district or circuit . . . shall be deemed insufficient, nor
shall the trial, judgment, or other proceeding thereon be affected by rea
son of any defect or imperfection in matter of form only, which shall not
tend to the prejudice of the defendant.” § 8, 17 Stat. 198. The opinion
in Russell noted that the 1872 statute had been repealed, but its substance
had been preserved in Federal Rule of Criminal Procedure 52(a). See 369
U. S., at 762.
7 Federal Rule of Criminal Procedure 31(c) is also instructive. It pro
vides that a defendant may be found guilty of “an attempt to commit the
offense charged; or . . . an attempt to commit an offense necessarily in

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Scalia, J., dissenting
Because we are satisfied that respondent’s indictment fully
complied with that Rule and did not deprive him of any sig
nificant protection that the constitutional guarantee of a
grand jury was intended to confer, we reverse the judgment
of the Court of Appeals and remand the case for further pro
ceedings consistent with this opinion.
It is so ordered.
Justice Scalia, dissenting.
It is well established that an indictment must allege all
the elements of the charged crime. Almendarez-Torres v.
United States, 523 U. S. 224, 228 (1998); United States v.
Cook, 17 Wall. 168, 174 (1872). As the Court acknowledges,
it is likewise well established that “attempt” contains two
substantive elements: the intent to commit the underlying
crime, and the undertaking of some action toward commis
sion of that crime. See ante, at 106 (citing 2 W. LaFave,
Substantive Criminal Law § 11.2(a), p. 205 (2d ed. 2003)
(hereinafter LaFave), E. Coke, Third Institute 5 (6th ed.
1680), and Keedy, Criminal Attempts at Common Law, 102
U. Pa. L. Rev. 464, 468 (1954)). See also Braxton v. United
States, 500 U. S. 344, 349 (1991). It should follow, then, that
when the Government indicts for attempt to commit a crime,
it must allege both that the defendant had the intent to com
mit the crime, and that he took some action toward its com
mission. Any rule to the contrary would be an exception to
the standard practice.
The Court gives two reasons for its special “attempt” ex
ception. First, it says that in “common parlance” the word
attempt “connote[s],” and therefore “impli[es],” both the in
cluded in the offense charged, if the attempt is an offense in its own
right.” Fed. Rules Crim. Proc. 31(c)(2)–(3). If a defendant indicted only
for a completed offense can be convicted of attempt under Rule 31(c) with
out the indictment ever mentioning an overt act, it would be illogical to
dismiss an indictment charging “attempt” because it fails to allege such
an act.

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tent and overt-act elements. Ante, at 107. This strikes me
as certainly irrelevant, and probably incorrect to boot. It is
irrelevant because, as I have just discussed, we have always
required the elements of a crime to be explicitly set forth in
the indictment, whether or not they are fairly called to mind
by the mere name of the crime. Burglary, for example, con
notes in common parlance the entry of a building with feloni
ous intent, yet we require those elements to be set forth.
Our precedents make clear that the indictment must “fully,
directly, and expressly, without any uncertainty or ambigu
ity, set forth all the elements necessary to constitute the of
fence intended to be punished.” United States v. Carll, 105
U. S. 611, 612 (1882) (emphasis added). And the Court’s ar
gument is probably incorrect because I doubt that the com
mon meaning of the word “attempt” conveys with precision
what conviction of that crime requires. A reasonable grand
juror, relying on nothing but that term, might well believe
that it connotes intent plus any minor action toward the com
mission of the crime, rather than the “ ‘substantial step’ ”
that the Court acknowledges is required, ante, at 107.
Besides appealing to “common parlance,” the Court relies
on the fact that attempt, “as used in the law for centuries . . .
encompasses both the overt act and intent elements.” Ibid.
Once again, this argument seems to me certainly irrelevant
and probably incorrect. Many common-law crimes have re
tained relatively static elements throughout history, bur
glary among them; that has never been thought to excuse
the specification of those elements in the indictment. And
the argument is probably incorrect, because the definition of
attempt has not been nearly as consistent as the Court sug
gests. Nearly a century ago, a leading criminal-law treatise
pointed out that “ ‘attempt’ is a term peculiarly indefinite”
with “no prescribed legal meaning.” 1 F. Wharton, Crimi
nal Law § 229, p. 298 (11th ed. 1912). Even the modern trea
tise the Court relies upon, see ante, at 106–107, explains—in

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a subsection entitled “The Confusion”—that jurisdictions
vary widely in how they define the requisite actus reus. La-
Fave § 11.4(a), at 218–219. Among the variations are: “ ‘an
act toward the commission of ’ some offense”; “an act ‘in fur
therance of ’ ” an offense; “ ‘a substantial step toward the
commission of the crime’ ”; “ ‘some appreciable fragment of
the crime’ ”; and the wonderfully opaque “ ‘commencement of
the consummation.’ ” Ibid. (footnote omitted). These are
not simply different ways of saying “substantial step.” The
Model Penal Code definition that the Court invokes, ante, at
107, is just that: a model. It does not establish the degree
of homogeneity that the Court asserts. The contention that
the “federal system” has a “well-settled” definition of at
tempt, see Supplemental Brief for United States 22, tells us
nothing; many terms in federal indictments have only one
federal definition, not because that is the universally ac
cepted definition, but because there is only one Federal
Government.
In this case, the indictment alleged that respondent
“knowingly and intentionally attempted to enter the United
States of America,” App. 8, so that the Court focuses only
on whether the indictment needed to allege the second ele
ment of attempt, an overt act. If one accepts the Court’s
opinion, however, the indictment could just as well have
omitted the phrase “knowingly and intentionally,” since that
is understood in “common parlance,” and has been an ele
ment of attempt “for centuries.” Would we say that, in a
prosecution for first-degree murder, the element of “malice
aforethought” could be omitted from the indictment simply
because it is commonly understood, and the law has always
required it? Surely not.
The sole judicial authority the Court cites for its novel
exception to the traditional indictment requirements (other
than an unpublished opinion of a District Court, see ante, at
108, n. 3) is Hamling v. United States, 418 U. S. 87 (1974).
The relevant portion of that opinion consists of the following:

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Scalia, J., dissenting
“The definition of obscenity . . . is not a question of fact,
but one of law; the word ‘obscene,’ . . . is not merely a
generic or descriptive term, but a legal term of art.
The legal definition of obscenity does not change with
each indictment; it is a term sufficiently definite in legal
meaning to give a defendant notice of the charge against
him. Since the various component parts of the consti
tutional definition of obscenity need not be alleged in
the indictment in order to establish its sufficiency, the
indictment in this case was sufficient to adequately in
form petitioners of the charges against them.” Id., at
118–119 (citations omitted).
If these sentences established the broad principle the Court
asserts, they would apply not only to the elements of at
tempt, but to the elements of all crimes, effecting a revolu
tion in our jurisprudence regarding the requirements of an
indictment. In fact, however, Hamling is easily distinguish
able. “Obscenity” is, to be sure, one of the elements of the
crime of publishing obscenity. But the “various component
parts of the constitutional definition of obscenity” are no
more elements of the crime of publishing obscenity than the
various component parts of the definition of “building” are
elements of the crime of burglary. To be sure, those defini
tions must be met for conviction; but they need not be set
forth in the indictment. If every word contained within the
definition of each element of a crime were itself an element
of the crime within the meaning of the indictment require
ment, there would be no end to the prolixity of indictments.
There is no dispute here that “intent” and “substantial
step” are elements of the federal crime of attempt, just as
obscenity was an element of the crime charged in Hamling.
Hamling would be in point if it dispensed with the charging
of obscenity in the indictment.
The Court finds another point “instructive”: “If a defend
ant indicted only for a completed offense can be convicted of

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attempt . . . without the indictment ever mentioning an overt
act, it would be illogical to dismiss an indictment charging
‘attempt’ because it fails to allege such an act.” Ante, at
110–111, n. 7. I disagree; it seems to me entirely logical.
To indict for commission of a completed offense, the prosecu
tor must persuade the grand jury that the accused’s acts and
state of mind fulfilled all the elements of the offense. If they
did so, and if the offense has a mens rea element (which al
most all crimes, including burglary, do), then they unques
tionably fulfilled all the elements of an attempt as well—i. e.,
the accused meant to commit the crime and took the requi
site step (no matter how demanding the requirement) in that
direction. That is to say, attempt to commit a crime is sim
ply a lesser included offense. A grand-jury finding that the
accused committed the crime is necessarily a finding that he
attempted to commit the crime, and therefore the attempt
need not be separately charged. When, however, the prose
cutor seeks only an indictment for attempt, it is not enough
to tell the grand jury that it requires a finding of “some, but
not all, of the elements of the substantive crime”; he must
specify what the elements of attempt consist of. He must
do that for the same reason a court must instruct the petit
jury on the attempt elements, see 2 E. Devitt, C. Blackmar, &
K. O’Malley, Federal Jury Practice and Instructions § 21.03,
Notes, p. 4 (4th ed. 1990) (collecting cases), even when the
indictment has not separately charged attempt: Without such
specification, the jury, grand or petit, cannot intelligently
find attempt.
Finally, the Court suggests that there is something differ
ent about attempt because it is a parasitic crime. There is
no such crime as bald attempt; it must be attempt to commit
some other crime. This is unquestionably true, fully as true
as the fact that attempt begins with an “a.” But there is no
reason why the one, any more than the other, has anything
to do with the purposes, and hence the substance, of the in

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116 UNITED STATES v. RESENDIZ-PONCE
Scalia, J., dissenting
dictment requirement. Conspiracy is also, in most cases, a
parasitic crime, and no one contends that its elements need
not be charged.
Despite the clear answer provided by straightforward ap
plication of the oft-recited principles of our jurisprudence,
I might have been persuaded to recognize an (illogical) ex
ception to those principles if the Government had demon
strated that mere recitation of the word “attempt” in at
tempt indictments has been the traditional practice. But its
effort to do so falls far short; in fact, it has not even under
taken such an effort. The Government has pointed to some
cases that allow an indictment simply to use the word “at
tempt,” and many others that invalidate an indictment for
failure to allege an overt act. See Supplemental Brief for
United States 15–21. It matters not whether more of one
sort or the other of these cases arose in state courts or fed
eral courts; the point is that there is no established historical
“attempt” exception to the general principles of our jurispru
dence. That being so, those principles must prevail.
To be clear, I need not decide in this case whether, as the
Ninth Circuit held, the Government was required to specify
in the indictment which particular overt act it would be rely
ing on at trial. Cf. Russell v. United States, 369 U. S. 749
(1962). It suffices to support the judgment, that the Gov
ernment was required to state not only that Resendiz-Ponce
“knowingly and intentionally attempted to enter the United
States of America,” but also that he “took a substantial step”
toward that end.
* * *
My dissenting view that the indictment was faulty (a point
on which we requested supplemental briefing) puts me in the
odd position of being the sole Justice who must decide the
question on which we granted certiorari: whether a constitu
tionally deficient indictment is structural error, as the Ninth
Circuit held, or rather is amenable to harmless-error analy
sis. I cannot vote to affirm or to reverse the judgment with

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117 Cite as: 549 U. S. 102 (2007)
Scalia, J., dissenting
out resolving that issue. Since the full Court will undoubt
edly have to speak to the point on another day (it dodged
the bullet today by inviting and deciding a different constitu
tional issue—albeit, to be fair, a narrower one) there is little
use in my setting forth my views in detail. It should come
as no surprise, given my opinions in United States v.
Gonzalez-Lopez, 548 U. S. 140 (2006), and Neder v. United
States, 527 U. S. 1, 30 (1999) (opinion concurring in part and
dissenting in part), that I would find the error to be struc
tural. I would therefore affirm the judgment of the Ninth
Circuit.