Constitutional and Statutory-Construction Challenges to an Indictment

Attacking the Statute, Not Just the Pleading

A failure-to-state motion says the indictment left out an element. A constitutional or statutory-construction challenge says something different: that the statute itself is invalid, or that, properly read, it does not reach the conduct charged. The distinction matters, because this motion asks the court to interpret or invalidate a law, not to grade the grand jury’s drafting.

These challenges are pure questions of law, which makes them well suited to a pretrial motion. Rule 12(b) permits a party to raise by pretrial motion any defense the court can determine without a trial of the general issue, and whether a statute is constitutional or how it should be construed is exactly that kind of question. A defendant can mount the attack in two postures. A facial challenge argues the statute is invalid in all or a substantial range of its applications. An as-applied challenge argues that, whatever the statute does elsewhere, it cannot constitutionally reach this defendant’s conduct.

The posture drives the timing and the record. A facial vagueness or overbreadth claim usually presents a legal question the court can resolve on the statute and the indictment alone, before any evidence. An as-applied claim can depend on the specific facts, which sometimes means the issue is better resolved after the government’s proof is fixed. Either way, the defense is arguing about the law that defines the crime — and if that law falls or is narrowed, the charge built on it can fall with it.

Void for Vagueness: Fair Notice and Arbitrary Enforcement

The vagueness doctrine is the most common constitutional attack on a charging statute. It rests on the Fifth Amendment’s guarantee of due process and voids a criminal law that is so unclear that people cannot tell what it forbids, or that hands police and prosecutors unguided discretion to decide who is a criminal.

Johnson v. United States is the modern anchor. The Court held that the government violates due process by punishing conduct under a law so vague that it fails to give ordinary people fair notice or is so standardless that it invites arbitrary enforcement, and that these principles apply to statutes fixing sentences as well as those defining crimes. Johnson struck the Armed Career Criminal Act’s residual clause because it combined indeterminacy about how to measure a crime’s risk with indeterminacy about how much risk was enough. Importantly, the Court rejected the idea that a statute survives simply because some conduct clearly falls within it; a law can be void for vagueness even though extreme cases would obviously qualify.

For the defense, Johnson supplies both a standard and a method. The standard is fair notice plus constrained enforcement. The method is to show that the operative language forces courts to guess at an idealized version of conduct and then apply a fuzzy threshold to it, producing unpredictable results across cases. Where a statute’s key phrase cannot be applied consistently — where judges reach opposite conclusions on similar facts — the vagueness argument gains traction, because that inconsistency is itself the constitutional injury the doctrine guards against.

Johnson made two points that recur in charging challenges. It confirmed that the vagueness prohibition applies not only to statutes defining the elements of crimes but also to statutes fixing sentences, so the doctrine reaches definitional and penalty provisions alike. And it rejected the government’s recurring argument that a statute survives so long as it is not vague in every conceivable application; a law can be void for vagueness even though some obviously covered conduct exists, because the constitutional defect lies in the indeterminacy of the standard, not in the absence of any clear case. For the defense, those holdings foreclose the two answers prosecutors most often give — that the clause is “only” definitional, or that the defendant’s own conduct clearly qualifies — and keep the focus where it belongs: on whether the operative standard can be applied in a principled, predictable way across cases.

The Residual-Clause Line: Johnson, Dimaya, and Davis

Johnson began a line of decisions that reached directly into charging statutes. The through-line is the “categorical approach” — asking what an offense ordinarily entails rather than what the defendant actually did — and its collision with vague risk standards. The decisions that followed struck definitional clauses used to charge crimes, not merely to enhance sentences.

In Sessions v. Dimaya, the Court extended Johnson to the residual clause of 18 U.S.C. § 16(b), holding it unconstitutionally vague for the same two flaws. Then, in United States v. Davis, the Court struck the residual-clause definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) — a provision that carries its own mandatory, consecutive penalties for using a firearm during a crime of violence. Because § 924(c) is a charged offense, Davis is the template for a pretrial motion attacking a count built on a vague definitional clause.

The pattern tells counsel where to look: definitional clauses that ask an abstract question about an “ordinary case” and pair it with an imprecise standard are the ones most vulnerable to a Davis-style challenge.

Dimaya and Davis added reasoning the defense can borrow directly. Dimaya applied the most exacting vagueness standard and explained that the phrase “by its nature” compels a court to ask what an offense ordinarily entails rather than what the defendant actually did — the abstraction that made the standard unworkable. Davis then refused the government’s attempt to save § 924(c)(3)(B) by switching to a conduct-specific reading, holding that the single word “offense” could not carry one meaning for the elements clause and another for the residual clause. The upshot is a clean template: identify a definitional clause that forces an ordinary-case abstraction, show that it is paired with an imprecise risk threshold, and argue that the two indeterminacies together deny fair notice and invite arbitrary enforcement in the same way Johnson condemned. The closer the challenged clause tracks the ones struck in that trilogy, the stronger the motion.

Narrowing Construction and Constitutional Avoidance

Not every constitutional problem ends in invalidation. Courts often save a statute by reading it narrowly, and that narrowing can itself defeat a charge if the defendant’s conduct falls outside the saved core. A construction challenge argues that the statute, correctly limited, does not reach what the indictment alleges.

Skilling v. United States is the classic example. Facing a vagueness attack on the honest-services fraud statute, 18 U.S.C. § 1346, the Court did not strike it; it construed the statute to cover only bribery and kickback schemes, and because the defendant’s alleged conduct involved neither, it fell outside the statute. That is the move a construction challenge seeks: a limiting reading that excludes the charged conduct. There are firm limits, though. In Davis, the Court refused to adopt the government’s saving construction, explaining that the canon of constitutional avoidance cannot be used to expand a criminal statute’s reach in order to rescue it, and invoking the rule of lenity — ambiguities about the breadth of a criminal statute are resolved in the defendant’s favor.

These principles give the defense a fallback even when outright invalidation is unlikely. If a statute is genuinely ambiguous about whether it reaches the charged conduct, lenity and avoidance push the court toward the narrower reading. Counsel therefore pairs the constitutional argument with a construction argument: the statute is either invalid, or it must be read to exclude this conduct. Framed that way, the motion can prevail on the narrower ground without the court having to declare an Act of Congress unconstitutional.

Skilling shows how far a saving construction can reshape a statute. Rather than strike honest-services fraud, the Court held that § 1346 reaches only bribery and kickback schemes, reasoning that those categories formed the settled core of the earlier doctrine — conduct as to which, in the Court’s words, it had always been as plain as a pikestaff that a crime occurred. Everything outside that core, including undisclosed self-dealing and conflicts of interest, fell away. For a defendant charged under a statute susceptible to a similar limiting reading, the play is to identify the narrow core the statute can constitutionally reach and then show that the indictment’s allegations sit outside it. Davis marks the outer boundary of the technique: a court may narrow a criminal statute to save it, but it may not expand one, and genuine ambiguity about a statute’s breadth is resolved for the accused under the rule of lenity.

First Amendment Overbreadth

When a statute touches speech, a distinct doctrine comes into play. Overbreadth lets a defendant challenge a law that sweeps in a substantial amount of protected expression, even if his own conduct could be punished under a properly drawn statute. It is a powerful tool because it permits a facial attack on behalf of speakers not before the court.

The governing standard appears in United States v. Hansen: a law is facially invalid for overbreadth if it prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. But Hansen also shows the doctrine’s limits. The Court upheld the federal provision criminalizing the encouragement of illegal immigration by reading “encourage” and “induce” as criminal-law terms of art — solicitation and facilitation — rather than in their broad, everyday sense. So narrowed, the statute reached only speech integral to unlawful conduct, which the First Amendment does not protect, and the overbreadth challenge failed.

The lesson for a charging challenge is that overbreadth and narrowing construction operate together. A defendant argues that the statute, read naturally, criminalizes vast swaths of protected speech; the government responds that a limiting construction saves it. Whether the statute is “readily susceptible” to that narrowing is the battleground. Where a limiting construction is available, the statute usually survives but may be confined in a way that excludes the charged conduct. Where no narrowing is possible and the statute genuinely reaches substantial protected expression, the overbreadth doctrine can invalidate it outright.

How and When to Raise a Constitutional Challenge

Because these are questions of law, the pretrial motion to dismiss is the natural vehicle, and raising the issue early preserves it for every later stage. The mechanics differ slightly depending on whether the challenge is facial or as-applied, and counsel tailors the record accordingly.

A facial vagueness or overbreadth challenge, and most construction arguments, can be briefed and decided on the statute and the indictment before any evidence, because they do not depend on what the government will prove. An as-applied challenge that turns on the specific facts of the conduct may require the court to wait until the trial record is developed, though a purely legal as-applied theory can still be resolved early. Either way, the defense frames the motion under Rule 12(b) as a defense the court can decide without a trial of the general issue, and preserves it in writing so it survives for appeal.

The available outcomes track the theory. If the statute is held facially invalid, the count built on it cannot stand. If the court adopts a narrowing construction, the indictment survives only if the charged conduct fits the narrowed statute; often it does not, and the count fails. And even where the statute is upheld, a lenity or avoidance ruling can confine it in a way that reshapes the case. Pleading the arguments in the alternative — unconstitutional, or else narrowly construed to exclude this conduct — gives the court the most room to rule for the defense on the narrowest available ground.

Where This Fits

This guide is one of four situations that arise under the Motion to Dismiss the Indictment. Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

These decisions—verified against primary sources—control how this issue is litigated. Every case still turns on its own facts.

• Johnson v. United States, 576 U.S. 591 (2015) — The Armed Career Criminal Act residual clause is void for vagueness because it denies fair notice and invites arbitrary enforcement.
• Sessions v. Dimaya, 584 U.S. 148 (2018) — The residual clause defining a crime of violence in 18 U.S.C. 16(b) is unconstitutionally vague under Johnson's reasoning.
• United States v. Davis, 588 U.S. 445 (2019) — The residual-clause definition of crime of violence in 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague; avoidance cannot expand a criminal statute.
• Skilling v. United States, 561 U.S. 358 (2010) — To avoid vagueness, the honest-services fraud statute is construed to cover only bribery and kickback schemes.
• United States v. Hansen, 599 U.S. 762 (2023) — A statute is facially overbroad only if it prohibits a substantial amount of protected speech relative to its legitimate sweep.

General summaries of published opinions for information only — not predictions about any specific case.