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UNITED STATES v. MANCEBO-SANTIAGO

February 1, 1995

UNITED STATES OF AMERICA,
v.
JOSE REMEDIO MANCEBO-SANTIAGO, Defendant.



The opinion of the court was delivered by: JOHN G. KOELTL

 John G. Koeltl, District Judge

 The Government seeks an in limine ruling in this prosecution under 8 U.S.C. § 1326 *fn1" for illegal reentry into the United States after arrest and deportation. The government argues that the defendant, Jose Remedio Mancebo-Santiago, should be precluded on grounds of irrelevance and considerations under Federal Rule of Evidence 403 from submitting evidence of the following at trial:

 
(2) That the defendant lacked an intent to violate the law when he reentered the United States subsequent to his deportation;
 
 
(3) That the defendant was not informed at the time of his deportation that he could not reenter the United States without first obtaining the express permission of the Attorney General to reapply for readmission or that if he so reentered he could be criminally prosecuted;
 
(4) That the defendant presented himself at an Immigration and Naturalization Service ("INS") inspection point in Puerto Rico and was admitted into the United States.

 Mancebo-Santiago does not dispute that he has been previously arrested and deported pursuant to a warrant of deportation. In his motion papers, he represents that he is a citizen of the Dominican Republic and that on December 1, 1990 he became a resident alien of the United States pursuant to an amnesty program. He admits being deported in June, 1992 after having been convicted of felonies in the state of New York. Mancebo-Santiago alleges that at the time of his deportation the Immigration and Naturalization Service ("INS") did not take back his alien registration card ("green card") and did not inform him that reentry without the express consent of the Attorney General to reapply for admission was illegal. He further alleges that several months after his deportation he flew to Puerto Rico and was permitted to enter the United States upon presentation of his Dominican Republic passport and his green card. This reentry is the subject of the present prosecution. Both parties argue that a decision on the motion in limine is important to them, because it would enable them to know what types of evidence to refer to in opening statements as well as what the scope of proof will be at trial. For the reasons stated below, the government's motion is granted.

 I

 The government argues that the first two categories of evidence, relating to the defendant's intent and knowledge, are irrelevant, because § 1326 does not require a defendant to possess any particular mental state nor does it allow any particular mental state to serve as a defense. The essential elements of a § 1326 offense which the Government must prove are that the defendant is (1) an alien, (2) who has been arrested, and (3) deported, and (4) thereafter is found in the United States, (5) without having obtained the specified consent of the Attorney General. United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir. 1985); United States v. Hernandez, 693 F.2d 996, 998 (10th Cir. 1982), cert. denied, 459 U.S. 1222, 75 L. Ed. 2d 464, 103 S. Ct. 1231 (1983).

 In United States v. Champegnie, 925 F.2d 54 (2d Cir. 1991), the Court of Appeals for the Second Circuit unequivocally affirmed the government's position. The court held that a good faith or mistaken belief on the part of an alien that he or she had lawfully reentered the United States is not a defense in a § 1326 prosecution. The court stated that:

 
The statute contains no language requiring proof of a particular mental state. It simply states that a previously deported alien may not reenter the United States without the express consent, obtained in advance, of the Attorney General. We read the statute to mean what it says: A previously deported alien who reenters the United States does so at his or her peril, and any subjective belief as to the legality of that act is irrelevant.

 Champegnie, 925 F.2d at 55-56 (citing United States v. Anton, 683 F.2d 1011, 1019 (7th Cir. 1982) (Posner, J., dissenting)); see also United States v. Miranda-Enriquez, 842 F.2d 1211, 1212-13 (10th Cir.) (holding there is no defense of mistaken belief of legality of reentry under § 1326, because the crime is a general intent crime and a mistake instruction is appropriate only if criminal intent plays a part in the crime charged), cert. denied, 488 U.S. 836 (1988); United States v. Espinoza-Leon, 873 F.2d 743, 745-46 (4th Cir.) (holding that mistaken belief as to the legality of reentry is no defense, because only general intent must be proven under § 1326), cert. denied, 492 U.S. 924 (1989); contra United States v. Anton, 683 F.2d 1011 (7th Cir. 1982) (holding that there is a mistake of law defense under § 1326 if a defendant reasonably believes that he or she had the consent of the Attorney General to reenter the United States). Similarly, courts have held that no specific intent is required to establish a violation of § 1326, but only a general intent to reenter the United States (i.e. a knowing and willful reentry). See United States v. Newton, 677 F.2d 16 (2d Cir.), cert. denied, 459 U.S. 850, 74 L. Ed. 2d 98, 103 S. Ct. 111 (1982); United States v. Hussein, 675 F.2d 114 (6th Cir.), cert. denied, 459 U.S. 869, 74 L. Ed. 2d 129, 103 S. Ct. 154 (1982); Pena-Cabanillas v. United States, 394 F.2d 785, 788-89 (9th Cir. 1968). Thus evidence that a deportee who reentered without the requisite consent did not intend to violate the law when reentering or that he or she did not know that reentry was a crime is irrelevant. With ...


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