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This section contains the nature of the case and procedural background.

D was deported twice, once in 1988 and again in 2002, before his attempted reentry on June 1, 2003. D walked up to a port of entry and displayed a photo identification of his cousin to the border agent. D told the agent that he was a legal resident and that he was traveling to Calexico, California. Because he did not resemble his cousin, D was questioned, taken into custody, and ultimately charged with a violation of 8 U.S.C. 1326(a). The indictment stated that D knowingly and intentionally attempted to enter the United States of America in violation of the statute. D moved to dismiss the indictment, contending that it 'fail[ed] to allege an essential element, an overt act, or to state the essential facts of such overt act.' The District Court denied the motion and, after the jury found D guilty, sentenced respondent to a 63-month term of imprisonment. D appealed. The Ninth Circuit reversed, reasoning that an indictment's omission of 'an essential element of the offense is a fatal flaw not subject to mere harmless error analysis.' P appealed.

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