IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-41532
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOEL CABRERA-TERAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
February 15, 1999
Before KING, Chief Judge, JONES and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Joel Cabrera-Teran (“Cabrera”) appeals his conviction of and
sentence for illegal reentry into the United States. He contends
that the indictment fails to charge an offense and that the
district court was not presented with a sufficient factual basis to
sentence him on the guilty plea. Finding the indictment defective,
we vacate and remand.1
1
Because we dispose of the case on the first issue, we do not reach the
second.
I.
A native of Mexico, Cabrera was deported on January 10, 1996.
In August 1996, he allegedly re-entered the country, then was
arrested in connection with a shoplifting violation in March 1997.
A Border Patrol officer promptly filed a complaint stating that
Cabrera “did unlawfully, knowingly and willfully re-enter the
United States from the Republic of Mexico after having been
arrested and deported on or about January 10, 1996," in violation
of 8 U.S.C. § 1326.
A grand jury indicted Cabrera, charging as follows: “Joel
Cabrera-Teran, an alien who had previously been deported,
thereafter entered the United States of America having not obtained
the consent of the Attorney General of the United States for
reapplication by the Defendant for admission into the United
States.” In September 1997, Cabrera pleaded guilty.
II.
Cabrera contends, for the first time on appeal, that the
indictment fails to allege an offense because it omits the “arrest”
element of illegal reentry. We agree and vacate the conviction.
A.
We review de novo a challenge to the sufficiency of an
indictment. United States v. Fitzgerald, 89 F.3d 218, 221 (5th
Cir. 1996). An indictment’s failure to charge an offense
2
constitutes a jurisdictional defect.2 Because an indictment is
jurisdictional, defendants at any time may raise an objection to
the indictment based on failure to charge an offense, and the
defect is “not waived by a guilty plea.” Morales-Rosales, 838 F.2d
at 1361-62; see also FED. R. CRIM. P. 12(b)(2). If an objection is
“raised for the first time on appeal and the appellant does not
assert prejudice, . . . the indictment is to be read with maximum
liberality finding it sufficient unless it is so defective that by
any reasonable construction, it fails to charge the offense for
which the defendant is convicted.” Fitzgerald, 89 F.3d at 221.3
B.
To be sufficient, an indictment must allege each material
element of the offense; if it does not, it fails to charge that
offense.4 This requirement stems directly from one of the central
purposes of an indictment: to ensure that the grand jury finds
probable cause that the defendant has committed each element of the
offense, hence justifying a trial, as required by the Fifth
2
See United States v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998), cert.
denied, 119 S. Ct. 569 (1998); see also United States v. Morales-Rosales, 838 F.2d
1359, 1361 (5th Cir. 1988) (citing United States v. Edrington, 726 F.2d 1029, 1031
(5th Cir. 1984)); United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980).
3
See also United States v. Chaney, 964 F.2d 437, 447 (5th Cir. 1992);
United States v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989).
4
See United States v. Gaytan, 74 F.3d 545, 552 (5th Cir. 1996); see also
Russell v. United States, 369 U.S. 749, 763-64 (1962) (noting that one criterion by
which the sufficiency of an indictment is judged is “whether the indictment contains
the elements of the offense intended to be charged”) (quotation omitted) (citing
cases); United States v. Deisch, 20 F.3d 139, 145 (5th Cir. 1994); Wilson, 884 F.2d
at 179.
3
Amendment.5
At the time Cabrera allegedly committed the offense, the
government, to obtain a conviction under § 1326,6 was required to
prove “[i] that defendant was an alien, [ii] and [iii] that he was
“arrested” and “deported” as those terms are contemplated by the
statute, [iv] that he was subsequently found within this country,
and [v] that he did not have consent from the Attorney General to
reapply for admission.” United States v. Wong Kim Bo, 466 F.2d
5
See, e.g., Wilson, 884 F.2d at 179; United States v. Outler, 659 F.2d 1306,
1310 (5th Cir. Unit B Oct. 1981); Van Liew v. United States, 321 F.2d 664, 669 (5th
Cir. 1963). The other oft-cited purposes, not at issue in this appeal, are (1)
double jeopardy protection and (2) notice of the offense charged. See, e.g.,
Chaney, 964 F.2d at 446; Van Liew, 321 F.2d at 668.
6
At that time, the statute read:
(a) Subject to subsection (b) of this section, any alien whoSS
(1) has been arrested and deported, has been excluded
and deported or has departed the United States while an
order of exclusion or deportation 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 excluded and deported,
unless such alien shall establish that he was not
required to obtain such advance consent under this
chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2 years,
or both.
In 1996, Subsection (a)(1) was modified, see Pub. L. 104-208, § 308(d)(4)(J)(i).
The words "denied admission, excluded, deported, or removed" were substituted for
"arrested and deported, has been excluded and deported," and the words
"exclusion, deportation, or removal" were substituted for "exclusion or
deportation." Subsection (a)(2)(B) also was modified, see Pub L. 104-208,
§ 308(d)(4)(J)(ii), with "denied admission and removed" substituted for "excluded
and deported."
4
1298, 1302 (5th Cir. 1972).7 The parties agree that the indictment
fails to allege that Cabrera was “arrested,” an element of the
offense. This would seem to end our inquiry, as the indictment
fails to charge an offense, hence depriving the district court of
jurisdiction to accept the guilty plea.
The government, however, attempts to evade this result by
asserting that the error is technical, that Cabrera sought and
reviewed records from his prior deportation hearing to determine
whether he had a defense before entering his guilty plea, that the
criminal complaint included the term “arrest,” and that the
statutory citation in the indictment informed Cabrera of the
offense charged. None of these observations saves the indictment
from facial deficiency.
1.
The government makes several references to the “technical”
nature of the error. It is true that we are governed by practical
considerations and should not reverse a conviction based on a
purely technical error in the indictment. See Gaytan, 74 F.3d
at 551. But the failure to allege the arrest element of the
offense is not technical. As this court explained in Wong Kim Bo,
the “arrest” is an essential element of the offense; we addressed
to what the arrest element referred, concluding that it referenced
7
See also, e.g., United States v. Asibor, 109 F.3d 1023, 1031 (5th Cir.),
cert. denied, 118 S. Ct. 254 (1997) (including an “arrest” as an element); United
States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) (same); United States
v. Cardenas-Alvarez, 987 F.2d 1129, 1131-32 (5th Cir. 1993) (same).
5
an arrest after a deportation hearing and the issuance of a warrant
of deportation (Form I-205) pursuant to 8 C.F.R. § 243.2. See Wong
Kim Bo, 466 F.2d at 1304.
We further noted that INS Form I-294, “which specifically
informs the alien of the criminal penalties to which he may be
subjected should he thereafter reenter the country without the
prior consent of the Attorney General,” accompanies the issuance of
the warrant of deportation. Id. We concluded that the arrest
element formed an essential part of the offense, because “Congress
might understandably hesitate to impose criminal sanctions for
reentry where the alien does not know or realize that he has been
officially deported. The arrest of an alien after an order of
deportation has become final provides great assurance that the
alien understands that he is being officially deported.” Id. The
arrest pursuant to a warrant of deportation, then, stands as an
important guarantee of notice in the statute.8 Calling the error
technical does not make it so; by failing to allege an essential
element of the crime, the indictment fails to charge an offense.
2.
The government asserts that Cabrera sought and reviewed the
records of the January 10, 1996, deportation proceeding on which
the government relied. Apparently, we are to believe that this
fact mitigates or cancels the error in the indictment by showing
8
Although, as we have noted, the statute was amended in 1996 to eliminate
the arrest element, that does not alter our conclusion that it was an essential
element when the offense allegedly occurred.
6
that Cabrera suffered no prejudice.
We rejected a similar argument in Outler, in which the
defendant challenged an indictment for several counts of unlawful
dispensing of controlled substances for failing to allege the
element that the prescriptions lacked legitimate medical reasons.
Even though the prosecution introduced evidence substantiating this
element for each count, and the jury instructions accurately
included the element, see 659 F.2d at 1308, we reversed the
convictions. See id. at 1314. We found the element's absence from
the indictment fatal, irrespective of the government's post-
indictment proffer of evidence and the defendant's notice of the
offense charged.
3.
The government avers that the criminal complaint initially
filed against Cabrera included the term “arrested,” adequately
putting him on notice of the offense charged. Again, the argument
fails. First, as we have said, the indictment is jurisdictional.
A facially complete complaint cannot make up for the shortcomings
of the indictment; the parties cite, and we can find, no caselaw as
to how it might.
Second, an indictment need not be limited to the terms of a
complaint.9 Because the indictment may stray from the complaint,
it would be improvident to turn to the complaint to flush out the
9
See Fairman v. United States, 544 F.2d 197, 198 (5th Cir. 1976) (rejecting
claim that indictment defective because it alleged transactions not alluded to in
the complaint).
7
indictment. Rather, we expect that grand juries may find things
that do not appear in the complaint or fail to find things that do.
Third, the central jurisdictional purpose of an indictment
negates the wisdom and propriety of relying upon the complaint to
provide elements missing from the indictment. The indictment
ensures that the grand jury has the had the opportunity to review
evidence supporting, and find sufficient cause to charge a
defendant with, each element of the offense before the court may
entertain prosecution.10 Only the appearance in the indictment of
all of the offense’s elements meets this requirement.
4.
The government relies on the indictment’s citation to the
statute. This presents the most challenging of the government’s
arguments, because at first glance, Fifth Circuit caselaw is not
entirely pellucid on whether a statutory citation suffices to meet
the requirement that all elements appear in the indictment. After
a thorough review of the cases, we conclude that statutory
citations may not stand in place of the inclusion of an element of
the crime.
The government quotes United States v. Campos-Asencio,
10
See Russell, 369 U.S. at 770 (rejecting contention that omission from
indictment was a technical deficiency that could be cured by a bill of particulars,
because then defendant could be “convicted on the basis of facts not found by, and
perhaps not even presented to, the grand jury which indicted him”); see also Wilson,
884 F.2d at 179; Outler, 659 F.2d at 1310; United States v. O’Hagan, 139 F.3d 641,
651 (8th Cir. 1998) (holding that indictment must include all elements to “ensure
that the grand jury has considered and found all essential elements of the offense
charged”); United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir. 1987) (en banc)
(same).
8
822 F.2d 506 (5th Cir. 1987), for the proposition that “[a]
statutory citation cannot, by itself, substitute for setting forth
the elements of the crime, but a citation may reinforce other
references within the indictment.” Id. at 507.11 Although we agree
that a statutory citation alone is insufficient, Campos-Asencio
fails to support the government’s argument.
In that case, the defendant was convicted of illegal reentry
on an indictment that failed to make explicit reference to the
absence of the Attorney General's consent to reentry. We held that
the indictment, construed liberally (as we must do when it is
challenged for the first time on appeal), sufficiently included the
element (if indeed it is an essential element, a question we passed
on) by alleging Campos was in the United States “unlawfully” and
referencing the statute. Campos-Asencio, 822 F.2d at 507.
Unlike the one in Campos-Asencio, however, the instant
indictment contains no term that we may construe liberally in
conjunction with the statutory citation to refer to the arrest
element. The indictment lacks any reference to an arrest
whatsoever.
Several other cases that have relied, in part, on statutory
references fall into the same category as Campos-Asencio:
statutory citations reinforcing terms that may be liberally
construed to refer to the missing element. For example, in
Fitzgerald, the defendant challenged an indictment for possession
11
See also Wilson, 884 F.2d at 179 (“While a statutory citation cannot,
standing alone, meet this test, a citation to the statute reinforces other
references within the indictment.”) (quotation omitted).
9
of cocaine base in excess of five grams for failing to include the
weight element of that offense; only the count’s caption mentioned
the weight. We held that the quantity was sufficiently charged
because “[t]he caption stated the quantity, [and] the body of the
count referenced the statute.” 89 F.3d at 223. As in
Campos-Asencio, the statutory reference merely reinforced another
reference in the indictment.12
Likewise, in Chaney, Gearing v. United States, 432 F.2d 1038
(5th Cir. 1970), and Downing v. United States, 348 F.2d 594 (5th
Cir. 1965), the defendants challenged indictments for failure to
track the statutory scienter language. We affirmed all three
convictions. In these cases, statutory references reinforced
language in the indictment that pointed to the scienter, but in
words different from those in the statute. In none of the cases
did a statutory citation alone suffice.
Other Fifth Circuit cases present greater difficulty. In
United States v. Hagmann, 950 F.2d 175, 183-84 (5th Cir. 1992), we
upheld a conviction under the Travel Act where the indictment
failed to allege an overt act subsequent to the act of travel. In
a footnote, we addressed the notion that a statutory citation
cannot serve as a substitute for the elements appearing in the
indictment. See id. at 183 n.15. By addressing a Fourth Circuit
case that had no real relevance to the conviction being reviewed,
the footnote implies that a statutory reference suffices to
12
See United States v. Arteaga-Limones, 529 F.2d 1183, 1188 (5th Cir. 1976)
(instructing that when judging indictment’s sufficiency we may look to the caption
and heading).
10
establish an element of the offense. But the gravamen of the
footnote is that we may “look to the statutory language” in
determining the sufficiency of an indictment, not that a statutory
citation may replace an element. We cited United States v. Gordon,
780 F.2d 1165 (5th Cir. 1986), a case that has nothing to do with
mere citation of the statute, as is at issue here and in the Fourth
Circuit case the footnote appears to reject. The footnote is
inapposite dictum and therefore does not concern us.
In Arteaga-Limones, 529 F.2d at 1199-1200, it initially
appears that we did rely solely on a statutory citation to provide
the scienter element of the charged offense. The only possible
language in the indictment that the citation may have been
reinforcing is that the defendant “imported and caused to be
imported” certain drugs.
To convict, the jury had to find knowledge or intent. We held
that
the language used was accompanied by specification of the
statutory section numbers. The jury was charged that
they must find knowledge or intent in order to convict.
The indictment’s adequate appraisal of the offense
charged and the trial court’s instruction concerning the
need for evidence of scienter, prevented any injustice to
Arteaga.
Id. at 1200 (citations omitted). Although it appears that the
decision rested solely on the statutory reference (The jury charge
argument suffers from the bootstrap argument in a jurisdictional
challenge.), the cited cases afford that basis no support, and the
court provides no discussion of why it could rely on the statutory
reference. Furthermore, although the panel adequately addresses
11
the contention that Arteaga lacked notice of the crime charged, it
fails to analyze accurately any contention that the indictment was
jurisdictionally defective.
We can conclude only that the language “caused to be
imported,” when buttressed by the statutory reference, sufficed to
reference the scienter element. Indeed, in Wilson, 884 F.2d at
180, we explained Arteaga-Limones as a case in which the facts and
language in the indictment “fairly import[] knowledge of intent.”
The purpose of an indictment confirms our reading of these
cases. To guarantee the right to be tried only after indictment,
the grand jury must consider and find evidence supporting all of
the crime's elements. See, e.g., O’Hagan, 139 F.3d at 651.
Requiring that all of the elements, rather than mere statutory
citations, appear on the face of the indictment helps to ensure
that the grand jury has done this.13
Other circuits that squarely have addressed the issue agree
that a statutory citation alone cannot satisfy the need to include
all elements of the crime in the indictment.14 We join these
circuits and clarify our caselaw by concluding that a statutory
citation, standing alone, cannot substitute for including an
13
See Outler, 659 F.2d at 1308-11 (holding indictment failed to charge an
offense because absence of element meant grand jury may not have considered it,
despite appearance of statutory citation in each count of the indictment); United
States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988).
14
See, e.g., Zangger, 848 F.2d at 925; United States v. Darby, 37 F.3d 1059,
1062 (4th Cir. 1994); United States v. Forbes, 16 F.3d 1294, 1297 (1st Cir. 1994);
United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992) (per curiam); Pupo, 841
F.2d at 1239 (4th Cir. 1987) (en banc) (and cases cited therein).
12
element of the crime in an indictment.15
C.
We are aware of United States v. Hernandez-Arias, No. 96-41149
(5th Cir. June 12, 1997) (per curiam) (unpublished), in which a
panel held, on similar facts, that, despite absence of the arrest
element a statutory citation saved an indictment charging illegal
reentry. Unpublished opinions issued on or after January 1, 1996,
are not precedent, see 5TH CIR. R. 47.5.4, and we decline to follow
Hernandez-Arias.
Cabrera cites United States v. Davis, No. 94-5752 (4th Cir.
Aug. 13, 1996) (unpublished), in which the court sua sponte raised
the indictment’s failure to state the arrest element and vacated
the conviction. The record reflected that, in contrast to the
situation here, the government had introduced at trial the warrant
of deportation establishing the arrest. Nonetheless, relying on
Wong Kim Bo for the proposition that the arrest is an essential
element, the court found that the indictment failed to put the
15
In a final volley, made in a letter submitted pursuant to FED. R. APP. P.
28(j), the government points to United States v. James, 980 F.2d 1314 (9th Cir.
1992). We find James unpersuasive. There, the defendant made a tardy
jurisdictional challenge to the indictment's failure to state that he and the victim
were Indians, as required by the offense of aggravated rape on an Indian reservation
under 18 U.S.C. §§ 1151, 1153, and 2241(a). See id. at 1316. The situation there
was unlike the circumstance here, however, in that
[t]he government provided [the defendant] James with a copy of the
grand jury proceedings which included the testimony of an agent of the
Federal Bureau of Investigation who testified to the fact that both
James and the victim were enrolled Indians, and that the crime occurred
on an Indian reservation. These facts never were contested by James
and were proven again at trial beyond a reasonable doubt.
Id. at 1318; see also id. at 1317.
13
defendant on notice of the criminal intent the government would
have to prove. The court concluded that “even the most liberal
construction of the indictment would permit no conclusion except
that it utterly failed to allege that [the defendant] was arrested
prior to being deported.” Id.
Like the indictment in Davis, the instant indictment utterly
fails to allege the arrest element. No degree of liberality in
interpretation, let alone any reasonable construction, allows us to
find the element within the indictment's text.
Because of this omission, the indictment fails to charge an
offense, leaving the district court without jurisdiction. If the
government indeed has the requisite evidence that Cabrera has been
arrested, it may return to the grand jury for a sufficient
indictment. We VACATE the judgment of conviction and REMAND.
14