A conviction is void where the charging paper plainly fails to allege an act made criminal by law,[485] or the statute defining the offense is unconstitutional.[486]  These claims are not waived by a guilty plea.[487]  The United States Supreme Court has held, however, that the omission of an essential element from an indictment does not constitute a jurisdictional defect.[488]

 

[485] E.g., United States v. Cuch, 79 F.3d 987 (10th Cir. 1996) (claim that federal court had no jurisdiction because offense did not occur in Indian country, and therefore occurred at a place over which the federal government lacked jurisdiction); Standing Bear v. United States, 68 F.3d 271 (8th Cir. 1995); Frank v. United States, 914 F.2d 828 (7th Cir. 1990) (custody resulting from indictment that fails to state an offense violates the laws of the United States).  See § 6.55, infra.

[486] E.g., Sunal v. Large, 332 U.S. 174 (1947); Baender v. Barnett, 255 U.S. 224 (1921); Ex parte Siebold, 100 U.S. 371 (1880); Humanitarian Law Project v. U.S. Department of Justice, ___ F.3d ___ (9th Cir. December 3, 2003) (18 U.S.C. § 2339B, prohibiting providing “training” and “personnel” to a listed terrorist organization, held impermissibly overbroad, and void for vagueness in violation of the First and Fifth Amendments).

[487] Haring v. Prosise, 462 U.S. 306 (1983); Federal Postconviction Remedies and Relief 172 (2003), supra, at § § 4-13 and 4-14.

[488] United States v. Cotton, 535 U.S. 625 (May 20, 2002) (omission from federal indictment of fact enhancing statutory maximum sentence (here quantity of drugs) does not justify court of appeals vacation of enhanced sentence, even where defendant did not object in trial court; plain error test applies; indictment defects do not deprive court of power to adjudicate a case); see United States v. Godinez-Rabadan, 289 F.3d 630 (9th Cir. May 3, 2002) (for 18 U.S.C. § 1326(a) charge, the specific date a noncitizen was “found in” the United States is not an essential element of the offense and therefore need not be indicated in the indictment.  Issue of whether indictment is constitutionally sufficient is jurisdictional question and may be raised for the first time on appeal).

CRIME OF MORAL TURPITUDE - CONSENSUAL SEXUAL ACTIVITY IN PRIVATE - UNCONSTITUTIONALITY OF CRIMINAL STATUTE
Where a state criminal statute penalizes consenting sexual conduct in private between adults, it is unconstitutional. Lawrence v. Texas, ___U.S. ___ 123 S. Ct. 2472, 2484 (2004). Some state statutes penalize consenting conduct between adults. E.g., People v. Dancy, 102 Cal.App. 4th 21, 35 (2002) ("By including a lack of consent element in the subdivisions setting forth the elements of several types of rape but not including a lack of consent element in the subdivision setting forth the elements of rape of an unconscious person, the Legislature obviously made an explicit choice not to require proof of lack of consent where the victim was unconscious at the time of the act of sexual intercourse."). A conviction under such an unconstitutional statute cannot trigger adverse immigration consequences.

Lower Courts of Eighth Circuit

CAL POST CON " GROUNDS " VALIDITY OF STATUTE " FEDERAL PREEMPTION PRECLUDES STATE FROM PROSECUTING JOB APPLICANT FOR PERJURY OR FORGERY INVOLVING I-9 FEDERAL FORM FOR EMPLOYMENT ELIGIBILITY VERIFICATION
State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). PCN:6.51;CPCR: 7.51

Lower Courts of Eleventh Circuit

POST CON RELIEF " FLORIDA " GROUNDS " STATE ADVISAL STATUTE " TWO-YEAR STATUTE OF LIMITATIONS
State v. Green, 944 So. 2d 208 (Fla. 2006) (motion to withdraw a plea on grounds that the trial court did not advise of the possibility of deportation will be held to same two-year time constraint as other postconviction motions to vacate sentences).

Other

POST CON NATIONAL - GROUNDS - LACK OF JURISDICTION
It may be possible to vacate an adult court conviction of a defendant who was a juvenile at the time the offense was committed, on the basis the adult court lacked jurisdiction over the criminal case. The government may attempt to oppose this motion by offering evidence of bone scans or dental examinations. An article by physicians for human rights addresses/discredits bone scans and dental exams for age determination, citing medical experts on the subject.  The article is "From Persecution to Prison: Health Consequences of Detention for Asylum Seekers" and can be found at: http://www.phrusa.org/campaigns/asylum_network/detention_execSummary/dr1-toc.html Apparently an expert is of the opinion that the use of bone scans to determine age is 100% bogus. The bone scan might be able to determine that someone is six years old, as opposed to 35 years of age, but a bone scan will show no difference between two people whose age is 10 years apart.  From: Stern and Elkind, L.L.P.

ARTICLE " POST CON RELIEF " FEDERAL PREEMPTION " STATE FORGERY AND PERJURY PROSECUTIONS CANNOT BE BASED ON EVIDENCE OF FALSE STATEMENTS ON FEDERAL I-9 EMPLOYMENT ELIGIBILITY FORMS
Federal immigration law provides penalties for false statements on federal employment eligibility form I-9. Federal law pre-empts state law on this issue. See State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). Therefore, evidence of false statements on I-9 forms cannot be used in state criminal cases to prosecute defendants for forgery or perjury, because federal statutes pre-empt state legislation on this point. For example, in State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011), the Minnesota Court of Appeals held that 8 U.S.C. 1324a (2006) preempts state criminal prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification. The court reasoned: Whether federal law preempts state prosecution is a question of law subject to de novo review. See Thul v. State, 657 N.W.2d 611, 618 (Minn. App. 2003), review denied (Minn. May 28, 2003). . . . The I-9 form was developed by the United States Attorney General in compliance with IRCA. See 8 U.S.C. 1324a(b)(1)(A) (requiring attestation by employer of eligibility verification on a form designated or established by the Attorney General by regulation); 8 C.F.R. 274a.2(a) (2005) (noting I-9s designation as the form to be used in employment-eligibility verification system). The I-9 form is entitled Employment Eligibility Verification. On it, Reynua provided the name of Laura Romero, along with a social security number and an address, and submitted in support the Minnesota identification card in Romeros name and a social security card, also in Romeros name. On the form, she checked the box indicating that she is a citizen of the United States. IRCA provides that [a] form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of title 18. 8 U.S.C. 1324a(b)(5). The state concedes that this provision of IRCA is broad enough to prohibit even use of the I-9 form in a state prosecution for perjury. We agree, given the congressional intent that is evident in this and other provisions in IRCA to preempt the area of employment-related verification of immigration status. IRCA provides that the employment-eligibility verification system may not be used for law enforcement purposes, other than for enforcement of this chapter or the federal perjury and false-statement provisions also referenced in section 1324a(b)(5). 8 U.S.C. 1324a(d)(2)(F). There is also an express provision preempting state laws imposing sanctions upon those who employ, or recruit or refer unauthorized aliens. 8 U.S.C. 1324a(h)(2). This provision clearly does not apply to the prosecution of an applicant for employment, such as Reynua. But it is further evidence of a general congressional intent to preempt state legislation in the area. The United States Supreme Court recently addressed the preemptive effect of IRCA, holding that the law did not preempt Arizonas unauthorized-alien employment law. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1973 (2011). In dissent, Justice Sotomayor stated that [u]se of the I-9 form is thus limited to federal proceedings, as the majority acknowledges. Id. at 2001. In its opinion, the majority rejected the argument that the Arizona law required an employer to use the I-9 form in order to later claim an affirmative defense. Id. at 1982 n.9. Thus, the majority considered the preemptive effect of section 1324a(b)(5) with respect to sanctions on employers for employing illegal aliens. The Supreme Court in Whiting was addressing the express preemption of state laws sanctioning employers, and, specifically, the exemption within that preemption provision allowing for state licensing laws. See id. at 1977-78. The Whiting Court was not dealing with federal immigration provisions directed at unauthorized aliens, or employment applicants, but rather an express reservation to the states of licensing provisions directed at employers. See id. at 1987. The Courts opinion does not hold that IRCA lacks a general preemptive intent, and specifically notes the ways in which the state statute at issue conformed to federal law. See id. Thus, there is nothing in the Whiting opinion inconsistent with our conclusion that use of the I-9 form in a state perjury prosecution is preempted by IRCA. A state law is preempted if the state law obstructs the accomplishment of the full purposes and objectives of the federal legislation. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S. Ct. 615, 621 (1984). IRCA largely targets employers for the sanctions it imposes. Only the federal perjury and false-statement provisions referenced in section 1324a(b)(5) are aimed at the employee. See United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011). But those federal statutes would be enforced by federal authorities, not local prosecutors in 50 different states. And, as the Ninth Circuit noted in United States v. Arizona, the federal act evidences Congress intent that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General. Id. at 352. The enforcement of Minnesotas perjury statute is not subject to that direction and supervision. Moreover, state perjury prosecutions could shift the illegal-immigration enforcement focus from the employer to the employee. Thus, a Minnesota perjury prosecution for false statements on the I-9 form would tend to obstruct the full purposes and objectives of IRCA. The same analysis does not apply to the simple-forgery charge based on the use of the Minnesota identification card. Here, we follow the general principle that [w]hen federal laws do preempt conflicting state laws, the state laws are preempted only to the extent that they are in conflict with federal law. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 11 (Minn. 2002). IRCA bars use of the I-9 form and any information contained in or appended to such form for purposes other than enforcement of the federal immigration statute and the federal perjury and false-statement provisions. 8 U.S.C. 1324a(b)(5). But we cannot read this provision so broadly as to preempt a state from enforcing its laws relating to its own identification documents. We conclude that the state, for example, is not barred from prosecuting the crime of display or possession of a fictitious or fraudulently altered Minnesota identification card, Minn. Stat. 171.22, subd. 1(2), merely because that card has been presented in support of an I-9 federal employment-eligibility verification form. There is a general presumption that the historic police powers of the State are not superseded by federal legislation unless that was the clear and manifest purpose of Congress. Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008) (quotation omitted). Section 1324a(b)(5) prohibits non-federal use of information appended to the I-9 form. That language does not exhibit a clear and manifest purpose to bar enforcement of state laws pertaining to state identification cards. It would be a significant limitation on state powers to preempt prosecution of state laws prohibiting falsification of state issued identification cards, let alone to prohibit all use of such cards merely because they are also used to support the federal employment-verification application. See generally Minn. Stat. 609.63, subd. 1(1) (prohibiting use of false writing for identification), .652, subd. 2 (prohibiting various acts in creating false identification cards for profit) (2010). (Id. at ___.) The same reasoning " based on nationwide federal law " would also require the same result in California criminal cases.