In the case of United States v. Juan Resendiz-Ponce, the U.S Supreme Court was tasked with determining whether an indictment that fails to allege a specific overt act in furtherance of illegal reentry into the country is fatally flawed. The defendant, Juan Resendiz-Ponce, had been indicted for attempting to reenter the U.S illegally after being deported previously due to criminal convictions. However, his indictment did not specify any particular action he took towards this attempt. The Ninth Circuit Court ruled in favor of Resendiz-Ponce and held that such an omission rendered his indictment defective under federal law. The Supreme Court disagreed and reversed this decision by ruling 8-1 in favor of the government on January 9th, 2007. They concluded that while it's generally necessary for indictments to state each element of a crime explicitly - when it comes to attempted crimes like illegal reentry - they don't need details about what actions were taken toward committing them unless those details themselves are elements of said crime.

In the dissenting opinion for United States v. Juan Resendiz-Ponce, Justice Scalia argued that the indictment was indeed flawed due to its failure to allege an overt act in furtherance of the attempted reentry after deportation. He believed that this omission rendered it defective under any standard of review. The majority's assertion that such a defect could be harmless error was rejected by Scalia who stated that there is no precedent for deeming an indictment’s complete failure to recite an essential element of the offense as harmless error. Furthermore, he disagreed with their claim about implicit inclusion of missing elements within other parts of indictments and criticized them for creating new law rather than interpreting existing ones.