Carbajal

MEMORANDUM *

Roberto Carbajal, federal prisoner, appeals his conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction pursuant to 28 U.S.C. § 1291 , and, applying de novo review, we reverse and remand with instruction to dismiss the indictment without prejudice. See United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.1986) (noting that the sufficiency of an indictment is reviewed de novo). Because the parties are familiar with the factual and procedural history of this case, we do not repeat it here except as is necessary to explain our decision.

In U.S. v. Pernillo-Fuentes, 252 F.3d 1030 (9th Cir.2001), we held that in an indictment for attempted entry in violation of 8 U.S.C. § 1326 , failure to allege specific *955 intent is “a fatal flaw requiring dismissal of the indictment.” Pernillo-Fuentes, 252 F.3d at 1032 . This holding controls the instant appeal. It is undisputed that the indictment on which Carbajal was tried did not allege specific intent. As such, the only appropriate disposition in this case is reversal of Carbajal’s conviction with instruction to the district court to dismiss the indictment on remand.

The…

concurring.

*956 This cockamamie result is compelled by United States v. Du Bo, 186 F.3d 1177 (9th Cir.1999).

Never mind that the defendant knew that specific intent was an element of the offense. Never mind that the jury was instructed that specific intent is an element of the crime. Never mind that a properly instructed jury found all the elements of the crime — including intent — beyond a reasonable doubt. Never mind that the evidence conclusively supported the verdict. Notwithstanding all of the above, we are compelled to reverse the result of an errorless trial solely because the indictment failed to allege that the defendant, in attempting to enter the United States unlawfully, intended to do so. This makes no sense.

While it is true that the defendant had the right to have a grand jury decide, in the first instance, whether there was probable cause to believe that he had the requisite specific intent, it is also true that the trial jury found the requisite specific intent beyond a reasonable doubt. There is no claim that the defendant was surprised to learn that intent was an element of the crime, or that the jury was improperly instructed, or that the evidence was…