In this morning’s first argument, United States v. Resendiz-Ponce, the Court considered whether the failure to allege an element of the offense in the indictment constitutes harmless error. (For a discussion of the background of the case and the parties’ arguments in their briefs, see my earlier post here.)

Although the Court considered a similar issue – in that case, involving the denial of a defendant’s right to his counsel of choice – last Term in United States v. Gonzalez-Lopez, Gonzalez-Lopez rarely surfaced today. Instead, Deputy Solicitor General Michael Dreeben (who also argued Gonzalez-Lopez) spent much of his time at the podium trying to convince the Court that it should establish a generic remedial rule in this case at all. Specifically, several justices expressed concern that in light of the government’s failure to petition for certiorari from the Ninth Circuit’s holding that the indictment was defective (a holding that Justice Breyer termed “completely wrong and not even close”), the Court should not use this case to establish the generic rule that the government sought. Indeed, at the end of Dreeben’s rebuttal, Justice Kennedy went so far as to ask Dreeben whether the Court could reverse the Ninth Circuit’s holding regarding the defective indictment without re-argument (Dreeben responded that it could.). While Justice Stevens acknowledged, in response to Dreeben’s argument that the Court had in other cases considered remedial questions notwithstanding the government’s failure to challenge the underlying constitutional issue, he explained that “the better practice” was to decide the remedial question in a hard case. Dreeben assured the Court, however, that the generic rule that the government seeks is necessary given the large volume of federal indictments and the fact that mistakes are made; in such a scenario.

Unlike most of his colleagues, Justice Souter did not seem to be troubled by the issue whether the Court should reach the question presented at all. Instead, he appeared firmly opposed to the harmless error rule that the government advocated, explaining that under such a rule the trial judge will simply deny a motion to quash the indictment whenever there is any question regarding its validity and wait to see what happens at trial. The price of your rule, he told Dreeben, is that someone will always be put to trial. By contrast, the automatic reversal rule creates an incentive for the trial judge to grant the motion to quash, at which point the government can return to the grand jury to seek a superseding indictment.

Arguing for respondent Juan Resendiz-Ponce, attorney Atmore Baggot ran into equally difficult questions. After bombarding Baggot with a series of hypotheticals, the justices then turned to one of the weaker points in Resendiz’s argument: the lack of any real prejudice from the error at issue. Baggot conceded that there was no lack of notice or surprise from the evidence presented at trial, but maintained (as in his brief) that the problem was the government’s failure to specify an overt act. Because the indictment is required to state the “essential facts,” Baggot contended, it did not actually constitute an indictment and the grand jury function to which Resendiz-Ponce was constitutionally entitled had not been performed. As such, he continued, the case must go back to the grand jury.

Notwithstanding the justices’ general skepticism regarding the merits of the underlying Ninth Circuit rule, only Justice Souter seemed to clearly support the respondent’s position. Thus, it seems likely that the justices will reach the question presented in some form or another; the only remaining question may be how broadly the rule applies.