Apprendi's Unanswered Question: Is Failure to Charge an Element in an Indictment a Jurisdictional Error?

Abstract

This Article addresses the issues raised by the federal drug cases pending on direct appeal in the aftermath of Apprendi. The Article proposes a framework for understanding the nature of the errors that were made prior to Apprendi. It addresses the emerging body of case law in which the federal circuit courts are struggling to define Apprendi error and to provide just redress under the circumstances. In part, some confusion arises because of the failure by the courts and litigants to clearly distinguish between the two types of errors that can be made: (1) the court’s failure to charge the jury to find an element beyond a reasonable doubt and (2) the prosecutor's failure to allege an element in the indictment. The distinction, however, is crucial. Although Apprendi did not directly speak to the right to notice by grand jury indictment, it is this type of error, as opposed to the failure to properly charge the jury, that presents jurisdictional problems in federal drug cases and other cases in which an omitted aggravating element (treated as a sentencing factor) increased the defendant's sentence beyond the statutory maximum for the lesser offense.

Keywords: federal drug cases, indictment, jurisdictional error, sentencing