                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 04-10302
                Plaintiff-Appellee,
               v.                             D.C. No.
                                           CR-03-00810-EHC
JUAN RESENDIZ-PONCE,
                                              OPINION
             Defendant-Appellant.
                                      
        Appeal from the United States District Court
                 for the District of Arizona
         Earl H. Carroll, District Judge, Presiding

                   Argued and Submitted
          June 14, 2005—San Francisco, California

                   Filed October 11, 2005

   Before: Alfred T. Goodwin, Thomas M. Reavley,* and
           Johnnie B. Rawlinson, Circuit Judges.

                Opinion by Judge Goodwin;
               Concurrence by Judge Reavley




  *The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.

                             13977
             UNITED STATES v. RESENDIZ-PONCE      13979


                      COUNSEL

Atmore L. Baggot, Apache Junction, Arizona, for the
defendant-appellant.

Raynette M. Logan, Joseph Koehler, Assistant U.S. Attor-
neys, Phoenix, Arizona, for the plaintiff-appellee.
13980          UNITED STATES v. RESENDIZ-PONCE
                          OPINION

GOODWIN, Circuit Judge:

   Juan Resendiz-Ponce, a native and citizen of Mexico, chal-
lenges his conviction and sentence for attempting to reenter
the United States after having been previously deported sub-
sequent to committing an aggravated felony, pursuant to 8
U.S.C. § 1326(a), (b)(2). He argues that (1) the indictment did
not adequately allege an overt act; (2) his Miranda rights were
violated; (3) the judge erroneously rejected his proffered jury
instructions; and (4) his sentence violates the Sixth Amend-
ment. Because the indictment was insufficient and should be
dismissed, we do not reach his remaining claims.

  Facts and Procedural History

   Resendiz-Ponce entered the United States illegally in 1988,
and was ordered deported on March 12, 1997. He reentered
the United States illegally in July, 2002. On August 28, 2002,
he was convicted of kidnaping his common-law wife and sen-
tenced to 45 days in county jail. On October 15, 2002, while
still in county jail, he was questioned by an INS agent and
admitted that he was an alien, that he was previously
deported, and that he had not sought permission to re-enter
from the Attorney General. He was deported later that same
day.

   In June 2003, Resendiz approached a port of entry at the
U.S./Mexican border on foot. Resendiz presented photo iden-
tification to the border agent, claiming to be a legal resident.
This identification belonged to Antonio Resendiz, Juan’s cou-
sin. Because Resendiz did not look like the tendered photo,
the agent directed him to a secondary inspection area, where
he was questioned. In due course, he was indicted for attempt-
ing to reenter the United States in violation of 8 U.S.C.
§ 1326(a). The indictment reads as follows:
               UNITED STATES v. RESENDIZ-PONCE           13981
       On or about June 1, 2003, JUAN RESENDIZ-
    PONCE, an alien, knowingly and intentionally
    attempted 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 having obtained the express consent of
    the Secretary of the Department of Homeland Secur-
    ity to reapply for admission.

       In violation of Title 8, United States Code, Sec-
    tions 1326(a) and enhanced by (b)(2).

   At trial, Resendiz moved to suppress the statements he
made to the INS agent while in jail in 2002 because he did not
receive Miranda warnings, to dismiss the indictment because
it did not allege an overt act, and to strike a portion of the
indictment related to 8 U.S.C. § 1326(b)(2) because the
indictment did not allege that his prior deportation occurred
subsequent to his prior conviction. The district court denied
these motions. Resendiz also requested a jury instruction that
would have told the jury that the government must prove that
Resendiz performed the overt act of successfully reentering
the United States. The court denied this request. Resendiz was
convicted. At his sentencing hearing, the district court deter-
mined that he was previously deported and that this deporta-
tion occurred subsequent to his conviction for an aggravated
felony. Therefore, the statutory maximum for his sentence
was increased from 2 years to 20 years, pursuant to
§ 1326(b)(2). He was sentenced to 63 months, the middle of
the applicable guideline range of 57-71 months. This appeal
followed.

  Jurisdiction and Standard of Review

   The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This court has jurisdiction pursuant to 28 U.S.C.
13982             UNITED STATES v. RESENDIZ-PONCE
§ 1291. We review the sufficiency of an indictment de novo.
United States v. Rodriguez, 360 F.3d 949, 958 (9th Cir. 2004).

  Discussion

   [1] The crime of attempted unlawful entry into the United
States, as defined by § 1326, includes as an essential element
that “the defendant committed an overt act that was a substan-
tial step toward reentering . . .” United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).1

   [2] The indictment in this case does not explicitly allege an
overt act. It charges neither the physical crossing of the bor-
der, nor the tendering of the bogus identification card, nor any
other fact, as a substantial step toward reentry. Either or both
of those acts could have been stated in the indictment. The
government argued to the district court that the “overt act is
the attempt to enter in this case” and argues on appeal that
“the overt act of an attempted entry crime is the entry itself.”
The first argument is a non-starter. The overt act with which
the defendant is charged obviously cannot be identified with
the ultimate legal question of guilt or innocence. The second
argument can be construed as either (1) the legal claim that
a charge of attempted entry necessarily implies that the asso-
ciated overt act was actual entry, or (2) the factual claim that
in this case, the indictment implicitly alleged physical entry
and thus identified an overt act. The district court held that
“being here is sufficient to advise [Resendiz] . . . of what it
is he’s charged with,” thus apparently endorsing (2), and pos-
sibly also endorsing the proposition that any error was harm-
less and did not prejudice Resendiz. We reject both of these
  1
    Unlike the separate offense of “being found in” the United States,
where failure to allege the overt act of crossing the border (or other overt
act) is not a fatal defect, because not an “essential element,” the other two
§ 1326 offenses for which deported aliens may be prosecuted require an
overt act to be alleged in the indictment. Cf. United States v. Bello-
Bahena, ___ F.3d ___ (9th Cir. June 15, 2005).
                UNITED STATES v. RESENDIZ-PONCE             13983
potential interpretations of the government’s remaining argu-
ment as a ground for salvaging the defective indictment.

   The government relies on dicta from a 1921 decision to
argue that the overt act related to an attempted reentry is an
actual reentry. Mills v. United States, 273 F. 625, 627 (9th
Cir. 1921) (“The attempt is in itself . . . the act of crossing the
boundary line into the United States.”); quoted in United
States v. Corrales-Beltran, 192 F.3d 1311, 1319-20 (9th Cir.
1999). Mills stands only for the proposition that an actual
entry is a possible means of violating a statute criminalizing
attempted entry, not that it is the only means and that its
occurrence is therefore necessarily implied by an attempt
charge. Id.; accord United States v. Rivera-Relle, 333 F.3d
914, 921 (9th Cir. 2003) (“The fact that an alien may have
completed an entry into the United States does not, in any
way, preclude a conviction for attempted entry.”). Nothing in
these cases suggests that an indictment for attempted entry
always or even often implies an actual entry.

   [3] The second interpretation of the government’s argument
is that the indictment implicitly alleged that Resendiz commit-
ted the overt act of physically crossing the border by stating
that “[o]n or about June 1, 2003, Juan Resendiz-Ponce . . .
intentionally attempted to enter the United States at or near
San Luis.” On this interpretation, apparently endorsed by the
district court, Resendiz’ current physical presence in the
United States warrants the inference that he physically
crossed the border, thus rendering the indictment sufficient. It
is true that any facts “necessarily implied” by an indictment
are presumptively charged. See, e.g., United States v. Hinton,
222 F.3d 664, 672 (9th Cir. 2000). However, there is an
essential logical distinction between what is implied by the
language of the indictment and what is implied by facts out-
side the four corners of the indictment. Neither common
knowledge nor appraisal of probabilities will take the place of
an omitted but essential allegation.
13984          UNITED STATES v. RESENDIZ-PONCE
   [4] Failure to allege an essential element of the offense is
a fatal flaw not subject to mere harmless error analysis. See,
e.g., United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.
1999) (“if properly challenged prior to trial, an indictment’s
complete failure to recite an essential element of the charged
offense is not a minor or technical flaw subject to harmless
error analysis, but a fatal flaw requiring dismissal”). The pur-
pose of this rule is to secure the basic institutional purpose of
the grand jury, by ensuring that a defendant is not “convicted
on the basis of facts not found by, and perhaps not even pre-
sented to, the grand jury that indicted him.” United States v.
Keith, 605 F.2d 462, 464 (9th Cir. 1979); quoted in Du Bo,
186 F.3d at 1179. As the Supreme Court has explained, this
purpose has its constitutional roots in the Fifth and Sixth
Amendments and historical roots in the English common-law
tradition. Russell v. United States, 369 U.S. 749, 770 (1962).
While this protection may not extend to incidentals and
details unnecessary to a conviction, an overt act that is a sub-
stantial step toward underlying offense is at the very core of
an attempt charge. Cf. United States v. Hinton, 22 F.3d 664,
672 (9th Cir. 2000) (holding that a slight discrepancy in dates
and locations between the grand jury indictment and the facts
proved at trial was “not significant”). 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 con-
sider whether to charge that specific overt act. Physical cross-
ing into a government 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 indict-
ment might have alleged the tendering a bogus identification
card; it might have alleged successful clearance of the inspec-
tion area; or it might have alleged lying to an inspection offi-
cer with the purpose of being admitted. Instead, the
indictment merely alleged that Resendiz “attempted to enter”
the United States, which simply repeats the ultimate charge
against him. 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.
               UNITED STATES v. RESENDIZ-PONCE             13985
   [5] Relying on Du Bo, we reversed a conviction for
attempted reentry in violation of § 1326, where the indictment
failed to explicitly allege specific intent, without inquiring
whether the omission prejudiced the defendant. United States
v. Pernillo-Fuentes, 252 F.3d 1030 (9th Cir. 2001). We now
hold that failure to allege any specific overt act that is a sub-
stantial step toward entry is a fatal defect in an indictment for
attempted entry following deportation under 8 U.S.C. § 1326.
Accordingly, we reverse the judgment against Resendiz and
direct the district court to dismiss the indictment without prej-
udice to reindictment.

  REVERSED and REMANDED.



REAVLEY, Circuit Judge, concurring:

   I must concur because of this circuit’s precedent, but I fail
to see any other reason for this holding. An indictment is con-
stitutionally sufficient if it clearly informs the defendant of
the precise offense of which he is accused so that he may pre-
pare 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 pre-
pare his defense. Resendiz 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 tes-
tified. 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.
13986          UNITED STATES v. RESENDIZ-PONCE
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 reference 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 (1974) (find-
ing an obscenity indictment sufficient even though it followed
statutory language and did not particularize the various ele-
ments 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 fair-
ness 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 ade-
quately 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
               UNITED STATES v. RESENDIZ-PONCE           13987
(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 “exe-
cutes 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, 203 S.W.2d 206 (Tex.
Crim. App. 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, 186 S.W.2d 243 (Tex. Crim. App. 1945)
(holding that an indictment charging that defendant killed his
wife by drowning her was defective as not alleging the man-
ner and means used to accomplish the drowning).
