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UNITED STATES v. MANCEBO-SANTIAGO

May 12, 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:

 On February 7, 1995, a jury found the defendant, Jose Remedio Mancebo-Santiago, guilty of violating 8 U.S.C. § 1326. *fn1" The defendant now seeks a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) on the ground that the Government failed to introduce sufficient evidence at trial to prove that venue was proper in the Southern District of New York. For the reasons stated below, the defendant's motion for a judgment of acquittal is denied.

 I.

 Section 1326 of Title 8 of the United States Code makes it a crime for any previously deported alien to enter, attempt to enter, or to be found in the United States without having obtained the consent of the Attorney General as specified by the statute. Thus it defines three separate offenses. United States v. Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994). For the elements that the Government must prove to establish a "found in" violation of § 1326, see United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir. 1985) and 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).

 II.

 The defendant does not challenge the propriety of venue in the Southern District of New York, but contests only whether the Government adduced sufficient evidence at trial to prove venue. The defendant acknowledges that venue may be proved by circumstantial evidence, *fn2" that venue is not an element of the offense, that facts establishing venue need only be proved by a preponderance of the evidence, *fn3" and that when deciding a Rule 29 motion a Court must view the evidence in the light most favorable to the Government. The defendant bears a heavy burden of showing that no rational trier of fact could find venue by a preponderance of the evidence. *fn4"

 III.

 Section 1329 of Title 8 of the United States Code prescribes appropriate venue for § 1326 prosecutions:

 8 U.S.C. § 1329.

 In United States v. Barnett, 993 F.2d 1539 (Table), 1993 WL 185640 (4th Cir.), cert. denied, 114 S. Ct. 560, 126 L. Ed. 2d 460 (1993), the Court of Appeals for the Fourth Circuit held that a "found in" violation of 8 U.S.C. § 1326 is a continuing offense. Barnett, 1991 WL at **1 ("While the crime of entering or attempting to enter the country is completed at the time of the entry or attempt, the crime of being 'found in' the United States is an ongoing one."). *fn5" Therefore, venue is proper under 8 U.S.C. § 1329 anywhere where the defendant goes, because the defendant commits the violation wherever he goes. Id. Given that a "found in" violation of § 1326 is a continuing offense, 18 U.S.C. § 3237(a) also indicates the propriety of venue in any location where the offense occurs:

 
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. . . .

 18 U.S.C.A. 3237(a); see United States v. Sutton, 13 F.3d 595, 598 (2d Cir. 1994) ("Venue for continuing offenses is governed by 18 U.S.C. § 3237(a) (1988)."); United States v. Potamitis, 739 F.2d 784, 791 (2d Cir.), cert. denied, 469 U.S. 934, 83 L. Ed. 2d 269, 105 S. Ct. 332 (1984), and cert. denied sub nom, ...


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