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Third Circuit: Defective Indictment Not Structural Error Requiring Automatic Reversal

Burton A. Rose, Esq. on 8/16/2016

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In United States v. Terrell Stevenson, 2016 WL 4191134 (August 9, 2016), a panel of the United States Court of Appeals for the Third Circuit was presented with a direct appeal from a criminal conviction in the United States District Court for the Middle District of Pennsylvania.

Among the issues raised in that direct appeal was a contention that the indictment did not adequately state the essential elements of one of the offenses: fraud in relation to identification documents prohibited by 18 U.S.C. §1028. The appellant alleged that the indictment did not include a specific averment regarding the interstate commerce element of the law.

The panel was composed of Judges Smith, Hardiman and Schwartz; Judge Hardiman wrote the opinion for the panel. There was no dissent.

The panel ruled that an indictment which fails to include all the central elements of the charged offense is subject to harmless error review when the issue was raised in the trial court and that a defective indictment does not constitute a structural error that would require automatic reversal.

The Panel acknowledged that the United States Court of Appeals for the Ninth Circuit has taken the view that a defective indictment does require automatic reversal, and cited United States v. Omer, 395 F3d 1087 (2005); however, Judge Hardiman noted that the ninth circuit is the lone circuit that takes that position. Six other courts of appeal have taken the view that harmless error review applies when an indictment’s omission of an essential element is challenged in District Court. The Third Circuit now joins that group and thereby overruled its prior decision in United States v. Spinner, 180 F3d 514 (1999) (holding that a similar omission was a fundamental defect depriving the court of jurisdiction and was not susceptible to harmless error review).

In this case, since the trial jury found the appellant guilty after receiving explicit instructions as to the facts necessary to convict him on the interstate commerce element beyond a reasonable doubt, a rational grand jury would certainly have had adequate probable cause to charge him with each and every element of the fraudulent identification offense. Therefore this error was harmless.

Consequently, appellant’s conviction and 360 month sentence were affirmed.

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