concurring:
I must concur because of this circuit’s precedent, but I fail to see any other reason for this holding. An indictment is constitutionally sufficient if it clearly informs the defendant of the precise offense of which he is accused so that he may prepare his defense and so that a judgment thereon will safeguard him from a subsequent prosecution for the same offense. 1 CHARLES ALAN WRIGHT & ARTHUR Miller, Federal PRACTICE & Procedure Criminal § 125 (3d ed. 2000 & Supp. 2005). This indictment does that.
The indictment informs us when and where the defendant intentionally tried to enter the country without consent. The indictment was sufficiently clear to enable Resendiz to prepare his defense. Resen-diz raises no contention that he received inadequate notice of the crime charged, nor does he contend that he did not present false identification nor make inaccurate statements at the border, as government agents testified. His contention is only that the indictment failed to charge him with attempting to enter illegally because it does not contain a laundry list of the actions he took in doing so.
It is “inconceivable” that Resendiz would have presented a different defense if the indictment had been more detailed. United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992). Likewise, the indictment’s *734reference to a specific date and place where Resendiz attempted to enter the United States is sufficient to allow him to claim double jeopardy if he is again charged with the same crime.
This circuit has incorporated the common law meaning of attempt into the crime of attempted illegal reentry under § 1326 and now requires the elements of that definition, including commission of an overt act, to be in the indictment. However, the legal definition of “attempt” 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. Hamling v. United States, 418 U.S. 87, 118-19, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (finding an obscenity indictment sufficient even though it followed statutory language and did not particularize the various elements required to constitute obscenity). As Professor Wright observed, and numerous courts have echoed, “[t]he test for sufficiency ought to be whether it is fair to defendant to require him or her to defend on the bases of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just suggested.” WRIGHT & Miller § 125.
The indictment charged Resendiz with “knowingly and intentionally” attempting to enter the country in violation of § 1326 and thus fairly implied that he committed an overt act in doing so. The judge directed the jury to convict Resendiz under § 1326 only if it found beyond a reasonable doubt that he “intentionally committed an overt act that was a substantial step towards reentering the United States.” Resendiz was adequately informed of his offense and no unfairness resulted from requiring him to defend on the basis of the charge as stated. The indictment should pass muster and would do so in other circuits. See, e.g. United States v. Blackburn, 9 F.3d 353 (5th Cir.1993) (finding indictment for bank fraud sufficient, notwithstanding defendant’s contention that it was fatally defective for failure to allege elements “knowingly” and “executes or attempts to execute,” because indictment fairly imported all elements and included statutory section number).
While the panel faults the indictment for failure to include more detail, the test is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards. United States v. Hinton, 222 F.3d 664, 672 (9th Cir.2000). Respectfully but boldly, I caution against the abandonment of common sense such as that illustrated in two cases that bedeviled the Texas courts for years. See Northern v. State, 150 Tex.Crim. 511, 203 S.W.2d 206(1947) (holding that an indictment charging that defendant killed the deceased by kicking and stomping her without charging that defendant stomped with his feet was fatally defective as failing to charge the means employed in commission of the offense) implied overruling recognized by Vaughn v. State, 607 S.W.2d 914 (Tex.Crim.App.1980); Gragg v. State, 148 Tex.Crim. 267, 186 S.W.2d 243 (1945) (holding that an indictment charging that defendant killed his wife by drowning her was defective as not alleging the manner and means used to accomplish the drowning).