At page 1032 Reviewing indictment sufficiency regarding specific intent23 citing casesdismissing indictment for attempted illegal reentry on appeal after conviction where district court denied timely motion to dismiss indictment for failure to allege specific intent
- United States v. Elk-Booth, 822 F. Supp. 2d 1089 (D. Mont. 2011).published (dismissing indictment for attempted illegal reentry on appeal after conviction where district court denied timely motion to dismiss indictment for failure to allege specific intent)
- United States v. Ho, 651 F. Supp. 2d 1191 (D. Haw. 2009).published(An indictment’s failure to ‘recite an essential element of the charged offense is not a minor or technical flaw ... but a fatal flaw requiring dismissal of the indictment.’ ” (quoting United States v. Du Bo, 186 F.3d 1…)
- United States v. Timothy W. Omer, United States of Am. v. Timothy W. Omer, 395 F.3d 1087 (9th Cir. 2005).publishedWe review the sufficiency of an indictment de novo, United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001), and we reverse. “[I]f properly challenged prior to trial, an indictment’s complete failure to recite an essential el…
- United States v. Omer, No. 03-30513 (9th Cir. Jan. 18, 2005).publishedWe review the sufficiency of an indictment de novo, United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001), and we reverse. “[I]f properly challenged prior to trial, an indictment’s complete failure to recite an essential e…
- United States v. Shryock, 342 F.3d 948 (9th Cir. 2003).publishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
- United States v. Raymond Shryock, A/K/A Huero Shy, United States of Am. v. Jesse Moreno, United States of Am. v. Ruben Hernandez, A/K/A Tupi, United States of Am. v. Alex Aguirre, Aka, Pee Wee, AKA Howard, United States of Am. v. Juan Arias, United States of Am. v. Randy Therrien, A/K/A Cowboy, United States of Am. v. Ruben Castro, AKA Nite Owl, United States of Am. v. Daniel Barela, United States of Am. v. David Gallardo, United States of Am. v. Raymond Mendez, AKA Champ, United States of Am. v. Joe Hernandez, AKA Shakey Joe, 342 F.3d 948 (9th Cir. 2003).publishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001). 195 Appellants argue that there was insufficient evidence (1) that Appellants participated in a RICO enterprise, and (2) that Appellants aided and abetted the distribut…
- United States v. William Nelson Davis, 336 F.3d 920 (9th Cir. 2003).publishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
- United States v. Bobby Der Enslin, 327 F.3d 788 (9th Cir. 2003).publishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001). 9 .
- United States v. Bobby Der Enslin, 315 F.3d 1205 (9th Cir. 2003).publishedUnited States, v. Pemillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001). 9 .
- United States v. Poe-Morales, 46 F. App'x 502 (9th Cir. 2002).unpublishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
Show 11 more citing cases
- United States v. Ramirez, 44 F. App'x 210 (9th Cir. 2002).unpublishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001).
- United States v. Pedro Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).published We reversed “[bjecause Pernillo-Fuentes’ indictment charging attempted entry did not allege specific intent as required under Ui’acidas-Ulibarry.” Id. at 1032.
- United States v. Lugo, 36 F. App'x 254 (9th Cir. 2002).unpublishedUnited States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001) (citing United States v. Tobias, 863 F.2d 685, 687 (9th Cir.1988)). “ “Whether a jury instruction misstates elements of a statutory crime is a question of law reviewed…
- United States v. Garcia-Hernandez, 569 F.3d 1100 (9th Cir. 2009).published See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
- United States v. Richard I. Berger, United States of Am. v. Richard I. Berger, 473 F.3d 1080 (9th Cir. 2007).publishedSee United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
- United States v. Berger, No. 04-50469 (9th Cir. Jan. 17, 2007).publishedSee United States v. Pernillo- Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001).
- United States v. Juan Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006).published See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001).
- United States v. Salvador Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2002).publishedSee United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001); Gracidas-Ulibarry, 231 F.3d at 1196 .
- United States v. German Godinez-Rabadan, 289 F.3d 630 (9th Cir. 2002).published(reversing trial court’s denial of motion to dismiss indictment which charged defendant with a specific intent offense but failed to allege specific intent)
- United States v. Torres-Lopez, 26 F. App'x 758 (9th Cir. 2002).unpublishedSee United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001).
- Simon v. Gov't of the Virgin Islands, 47 V.I. 3 (2002).publishedSee, e.g., Hamling v. United States, 418 U.S. 87, 117-18 , 94 S. Ct. 2887, 2907-08 , 41 L. Ed. 2d 590 (1974); United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001); United States v. Westmoreland, 240 F.3d 618, 633 (7th Cir…
Other citing cases
- United States v. Carbajal, 42 F. App'x 954 (9th Cir. 2002).unpublished
v.
Baltazar Pernillo Fuentes, United States Court of Appeals for the Ninth Circuit
Baltazar Pernillo-Fuentes appeals his conviction and thirty-month sentence for attempted entry following deportation in violation of 8 U.S.C. § 1326. We reverse.
On February 16, 2000, the grand jury returned a one-count indictment in which it charged Pernillo-Fuentes as follows:
On or about November 20, 1999, within the Southern District of California, defendant BALTAZAR PERNILLO-[*1032] FUENTES, an alien, who previously-had been excluded, deported and removed from the United States to Guatemala, attempted to enter the United States at the Tecate Port of Entry, without the Attorney General of the United States having expressly consented to the defendant’s reapplication for admission into the United States; in violation of Title 8, United States Code, Section 1326.
Pernillo-Fuentes timely moved to dismiss the indictment on various grounds, including that the “indictment fail[ed] to allege the specific intent required in ‘attempt’ crimes.” The district court denied the motion.
On April 7, 2000, Pernillo-Fuentes entered a conditional guilty plea in which he preserved his right to appeal the denial of his motion to dismiss the indictment. The district court sentenced Pernillo-Fuentes to a term of thirty months imprisonment followed by a three-year term of supervised release. This timely appeal followed.
Citing our recent decision in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc), Pernillo-Fuentes asserts that his indictment was defective because it failed to allege specific intent. We review the sufficiency of an indictment de novo, United States v. Tobias, 863 F.2d 685, 687 (9th Cir.1988), and agree with Pernillo-Fuentes.
In Gracidas-Ulibarry, an en banc panel of this court held that “the crime of attempted illegal reentry into the United States includes the common law element of specific intent.” 231 F.3d at 1190. The Supreme Court has held that one of the protections an indictment is intended to guarantee is measured by “whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.... ” Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (internal quotation marks and citation omitted). In turn, we have held that “the indictment must allege the elements of the offense charged and the facts which inform the defendant of the specific offense with which he is charged.” United States v. Lane, 765 F.2d 1376, 1380 (9th Cir.1985). An indictment’s failure to “recite an essential element of the charged offense is not a minor or technical flaw ... but a fatal flaw requiring dismissal of the indictment.” United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.1999).
Because Pernillo-Fuentes’ indictment charging attempted entry did not allege specific intent as required under G'raci-das-Ulibarry, we reverse his conviction. [1] The district court should dismiss the indictment on remand.
REVERSED.
. In light of this disposition, there is no need to reach other issues raised on appeal.