186 F.3d 1177 (9th Cir. 1999)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
DU BO, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted November 2, 1998
Memorandum Disposition Decided January 7, 1999
Memorandum Disposition Withdrawn August 10, 1999
Decided August 10, 1999
G. Anthony Long, Saipan, MP, for the defendant-appellant.
David Wood, Assistant United States Attorney, Saipan, MP, for the plaintiff-appellee.
Appeal from the United States District Court for the Northern Mariana Islands Alex R. Munson, Chief Judge, Presiding. D.C. No. CR-97-00009-ARM.
Before: Alfred T. Goodwin, Robert R. Beezer and Thomas G. Nelson, Circuit Judges.
BEEZER, Circuit Judge:
Du Bo appeals his conviction for interference with commerce by extortion, in violation of 18 U.S.C. S 1851. We have jurisdiction, 28 U.S.C. S 1291, and we reverse. We hold that, if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment.
Du Bo was charged by indictment with a violation of 18 U.S.C. S 1851 ("the Hobbs Act"). More than two months before trial, he unsuccessfully challenged the indictment as defective for failing to specify the necessary mens rea. On appeal, he argues that the indictment is fatally flawed and that he need not show prejudice from the flaw to obtain reversal. We agree.
Although not stated in the Hobbs Act itself, criminal intent -- acting "knowingly or willingly" -- is an implied and necessary element that the government must prove for a Hobbs Act conviction. United States v. Soriano , 880 F.2d 192, 198 (9th Cir. 1989). "[I]mplied, necessary elements, not present in the statutory language, must be included in an indictment." United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995). The indictment charges Du Bo only with "unlawfully" affecting commerce by the "wrongful" use of force. Under our Hobbs Act jurisprudence, such terms do not connote the proper mens rea for a Hobbs Act conviction. See United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir. 1988), overruled on other grounds by Evans v. United States , 504 U.S. 255 (1992). The indictment on its face is deficient. The issue we decide today is whether the deficiency is amenable to harmless error review. We conclude that it is not.
Du Bo's conviction requires reversal because his indictment fails to ensure that he was prosecuted only "on the basis of the facts presented to the grand jury . . . . " United States v. Rosi, 27 F.3d 409, 414 (9th Cir. 1994). At common law, "the most valuable function of the grand jury was. . . to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony . . . ." Hale v. Henkel, 201 U.S. 43, 59 (1906). Incorporated into the Fifth Amendment by the Founders, there is "every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor." Costello v. United States, 350 U.S. 359, 362 (1956). The Fifth Amendment thus requires that a defendant be convicted only on charges considered and found by a grand jury. See United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir. 1988).
Failing to enforce this requirement would allow a court to "guess as to what was in the minds of the grand jury at the time they returned the indictment . . . ." United States v. Keith, 605 F.2d 462, 464 (9th Cir. 1979) (citing Russell v. United States, 369 U.S. 749, 770 (1962)). Such guessing would "deprive the defendant of a basic protection that the grand jury was designed to secure," by allowing a defendant to be convicted "on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him. " Id. (citing Russell, 369 U.S. at 770). We may only guess whether the grand jury received evidence of, and actually passed on, Du Bo's intent. We may never know if the grand jury would have been willing to ascribe criminal intent to Du Bo. See Stirone v. United States, 361 U.S. 212,217 (1960) (no court may "know" what the grand jury "would have been willing to charge"). Refusing to reverse in such a situation would impermissibly allow conviction on a charge never considered by the grand jury. See id. at 219; see also United States v. Miller, 471 U.S. 130, 139-140 (1985).
Du Bo's conviction also must be overturned because his indictment lacks a necessary allegation of criminal intent, and as such does not "properly allege an offense against the United States." United States v. Morrison, 536 F.2d 286, 289 (9th Cir. 1976); see also United States v. Carll , 105 U.S. 611, 613 (1881) (such indictment fails to charge defendant with any crime). Such a failure "generally constitutes a fatal defect" that can not be cured through jury instructions, Keith, 605 F.2d at 464, because a "completely missing essential element" leaves "nothing for a petit jury to ratify," Hooker, 841 F.2d at 1232. Specifically, the "failure to include the ele ment of willfulness . . . renders [an] indictment constitutionally defective." United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir. 1987). It is not amenable to harmless error review. See United States v. Spruill, 118 F.3d 221, 227 (4th Cir. 1997).
The government is correct that challenges to minor or technical deficiencies, even where the errors are related to an element of the offense charged and even where the challenges are timely, are amenable to harmless error review. See United States v. Neill, 166 F.3d 943, 947-48 (9th Cir. 1999), cert. denied, 119 S. Ct. 2037 (1999). The complete failure to charge an essential element of a crime, however,"is by no means a mere technicality." See United States v. King, 587 F.2d 956, 963 (9th Cir. 1978). As the Supreme Court stated over a century ago, the omission of a necessary element of an offense is a "matter of substance, and not a defect or imperfection in matter of form only . . . ." Carll , 105 U.S. at 613 (internal quotation marks omitted). Considering the indict- ment in its entirety and construing it according to common sense as we must, see United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995), Du Bo's indictment was terminally defective. The error was no mere clerical error; the indictment listed specific legal terms that do not, for purposes of the Hobbs Act, state the requisite intent. See Aguon , 851 F.2d at 1168.
Because the indictment charging Du Bo failed to include a necessary element of the offense at issue, and because Du Bo timely raised a challenge, the indictment was fatally flawed. Accordingly, we reverse the judgment against Du Bo and direct the district court to dismiss the indictment.