Souleymane Balde was indicted for violating 18 U.S.C. §§922(g)(5)(A) and 924(a)(2) because he possessed a firearm notwithstanding that he was an alien "illegally or unlawfully in the United States." Balde pled guilty, but appealed on the ground that he was not "in" the United States as that term was used in §922(g)(5)(A). The Second Circuit upheld his conviction, but eight days later the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that to obtain a conviction under 18 U.S.C. §§922(g)(5)(A) and 924(a)(2), the government must prove that the defendant knew that he or she was illegally within the United States. Balde petitioned for rehearing in the Second Circuit, arguing that Rehaif required dismissal of the indictment, which did not include the mens rea requirement enunciated in Rehaif, or, in the alternative, vacatur of his conviction because he did not admit to the element in his plea allocution.

The Second Circuit rejected Balde's argument that the indictment be dismissed, but granted his argument to vacate his conviction. United States v. Balde, 17-3337-cr (Nov. 13, 2019). In doing so, the court distinguished between jurisdictional defects in indictments and non-jurisdictional defects. Its discussion leaves many questions, most importantly whether the distinction is or should be observed.

Indictment Requirements

The requirements for an indictment are not onerous. Indictments need only set forth the elements of the crime allegedly committed, and state the time and place of the alleged criminal activity. Typically, this is done by tracking the language of the criminal statute at issue, and adding the time and place and a brief description of the alleged activity in a "to wit." clause. United States v. Stringer, 730 F.3d 120, 124 (2d Cir. 2013).

This is precisely what the indictment in Balde did—it tracked the statutory language and included a to wit. clause stating when and where Balde's allegedly criminal activity (his possession of the firearm) took place. The indictment was insufficient because it did not state that Balde knew that he was in the United States illegally. Such knowledge was, after Rehaif, an element of the crime, although not expressly set forth in the statute.

What consequence followed from the indictment's failure to charge an element of the crime? The Supreme Court has not ruled on whether such a failure requires dismissal of the indictment, or is amenable to harmless error analysis. The court granted certiorari to answer that question in United States v. Resendiz-Ponce, 549 U.S. 102 (2007), but avoided the question because it found that, upon closer inspection, the indictment in that case did, in fact, include all of the elements of the crime charged. Justice Scalia dissented alone, arguing that the indictment did not include all of the elements of the charged crime, and, further, that the failure of an indictment to include any of the elements of the crime charged was not amenable to harmless error analysis, but required dismissal of the indictment.

The Second Circuit has rejected Justice Scalia's position. It has several times affirmed convictions in which the indictment did not charge each element of the crime allegedly violated, holding that the indictment's erroneous omission of the elements might be harmless error so long as the defendant is not prejudiced by the omission. See, e.g., United States v. Dupree, 870 F.3d 62 (2d Cir. 2017); United States v. Bout, 731 F.3d 233 (2d Cir. 2013).  

Jurisdictional Element

Although the failure to include an element of the crime alleged was, under Second Circuit authority, amenable to harmless error analysis, Balde argued that his case was different because the omission in his case was not simply of an element of the crime alleged against him, but of a jurisdictional element of the crime, and that the failure to allege a jurisdictional element of a crime cannot be harmless.

What is a jurisdictional element of a crime, and how does it differ from other elements of a crime? (I will refer to non-jurisdictional elements of a crime as "substantive elements.") According to Balde and United States v. Prado, 933 F.3d 121 (2d Cir. 2019), the distinction is this: (1) a jurisdictional element of a crime "speaks to the question whether a case comes within the judicial power of the court" at all, and (2) a substantive element of a crime goes to the question of "what conduct the statute prohibits, which is a merits question." Having drawn the distinction, however, Balde acknowledged that the distinction is not always clear, and, citing Prado, observed that jurisdiction is a "chameleon word." It would appear, based on the Second Circuit's description, that jurisdictional elements include: (1) the interstate commerce element in a Hobbs Act prosecution or a TVPA prosecution, (2) the use of the mails or the instrumentalities of interstate commerce in, respectively, a mail fraud or wire a fraud prosecution, and (3) a bank's status as a federally insured or chartered institution in a prosecution for bank robbery. The remaining elements of these crimes—the mens rea, actus reus, false statements, coercion, theft, extortion, etc.—are substantive elements.

Balde stated that the failure of an indictment to include a jurisdictional element required dismissal of the indictment, whereas the failure of an indictment to include a substantive element did not, but was amenable to harmless error analysis. And, it held, the failure of the indictment before it to include the mens rea element was not a jurisdictional element.

Different Treatment

The Supreme Court has recently stated, albeit it in dictum, that jurisdictional elements of a crime, just like substantive elements, must be found by a unanimous jury, beyond a reasonable doubt. See Torres v. Lynch, 136 S. Ct. 1619, 1630 (2016) and Taylor v. United States, 136 S. Ct. 2074, 2080 (2016); see also Prado, supra, at 139 n.9. If that is so, then the only difference between an indictment's failure to allege a jurisdictional element and its failure to allege a substantive element is that alluded to above: An indictment's failure to allege a jurisdictional element requires dismissal of the indictment even if it is not objected to. By contrast, at least in the Second Circuit, an indictment's failure to allege a substantive element is subject to harmless error analysis. Put differently, an indictment's failure to allege a jurisdiction element of a crime is a structural error, whereas its failure to allege a substantive element of a crime is not.

Given that the distinction between jurisdictional elements and substantive elements is as evanescent as a chameleon's appearance, it is not clear why errors related to jurisdictional elements should be treated differently from errors related to substantive elements. An indictment's failure to allege, for example, that a bank was federally insured (in a bank robbery prosecution), or that the mails were used to execute a scheme to defraud (in a mail fraud prosecution), does not seem more egregious than an indictment's failure to allege the defendant's mens rea, or some other substantive element of those crimes. Yet, the Second Circuit would treat them entirely differently, dismissing an indictment that failed to allege the former, but considering the impact of an indictment's failure to allege the latter, and, at most, vacating the conviction, but not dismissing the indictment. There is not such a profound difference between jurisdictional elements and substantive elements as would justify such a marked distinction in how errors related to them are treated.

In drawing the sharp distinction between the errors involving jurisdictional elements and those involving substantive elements, and in insisting that errors relating to jurisdictional elements require an indictment's dismissal, the Balde and Prado courts drew on an analogy with the treatment of subject matter jurisdiction in civil cases. In civil cases, the subject matter jurisdiction of federal courts is limited, and federal courts must dismiss any case in which they do not have subject matter jurisdiction sua sponte at any time in the proceeding, without consideration of waiver or forfeiture. The Balde and Prado courts ruled that a subject matter jurisdiction error in a criminal case must have the same consequence.

But the analogy is flawed because the consequences of a federal court's acting beyond its subject matter jurisdiction are different, depending on whether the case is civil or criminal. In a civil case, if a federal court determines erroneously that it does not have subject matter jurisdiction, then a state court, or some other tribunal, would almost certainly be available. But no state court can hear a case involving the violation of a federal criminal statute. Thus, the consequences of a dismissal from federal court for lack of subject matter jurisdiction are more draconian in the criminal than in the civil context. Conversely, if a federal court were to hear a civil case over which it did not have subject matter jurisdiction, it would almost certainly be interpreting another jurisdiction's laws (if the issue involved federal law, there would be subject matter jurisdiction pursuant to 28 U.S.C. §1331), and, as such, would infringe upon the sovereignty of the other jurisdiction. By contrast, if a federal court were to hear a criminal case in which the indictment failed to allege a jurisdictional element, there would be no affront to any other sovereign's jurisdiction, because a federal criminal case, by definition, involves only federal criminal law. Thus: The consequences of hearing a case over which the federal court does not have subject matter jurisdiction are more severe in the civil than in the criminal context, and the fact that automatic dismissal is the required remedy in a civil case in which the court does not have subject matter jurisdiction does not compel the conclusion that the same remedy is required in the criminal context.

Conclusion

In the end, the distinction between jurisdictional elements and substantive elements may not amount to much. Each element of a crime should be treated the same as every other element—that is, it must be found proven to a jury beyond a reasonable doubt, and the consequence of an indictment's failure properly to allege the element of a crime should be same, regardless whether the element is jurisdictional or substantive. The pressing question is the one left open in Resendiz-Ponce: What is the consequence of the omission of an element—any element—of the charged crime? Is it automatic dismissal of the indictment, as Justice Scalia argued, or is it the application of harmless error analysis?

Benjamin Rosenberg is a partner at Dechert, and a former federal and state prosecutor.