The opinion of the court was delivered by: William M. Skretny United States District Judge
Currently before the Court is Defendant's motion in limine to bar the government from making various factual and legal arguments and from offering various statements, testimony and documents in evidence. The Court distributed a draft decision to counsel prior to discussion and oral argument. This Decision and Order takes into consideration the parties written submissions and the additional arguments and concessions made at argument on September 5, 2006.
On July 21, 2006, Defendant Michael Bernd Kreider was charged in a criminal complaint, in case number 06-MJ-2157, with having been found on July 20, 2006 at Peace Bridge Port-of-Entry after having been previously deported and without having received permission to re-enter the United States, in violation of 8 U.S.C. § 1326. On August 3, 2006, United States Magistrate Judge Hugh B. Scott dismissed the criminal complaint in 06-MJ-2157, without prejudice, holding that the allegations in the complaint and supporting affidavit were insufficient to state a charge under either the "found in" or "enters" language of section 1326(a).
On August 9, 2006, the Grand Jury for the Western District of New York issued a two-count Indictment against Defendant Kreider, which is the basis for the present case number 06-CR-00251. Count 1 charges Defendant, an alien who previously had been deported and removed from the United States, with having entered, attempted to enter and been found in the United States on or about July 20, 2006, without obtaining consent to reapply for readmission. Count 2 charges that Defendant, an alien who previously had been deported and removed from the United States, entered the United States sometime after August 16, 2002, without obtaining consent to reapply for readmission. These charges arise from the following facts.
On July 20, 2006, Defendant was on a bus traveling from the United States to Canada via the Peace Bridge. (DH*fn1 11, 14, 15, 18.) Canadian Immigration called U.S. Customs and Border Inspection to verify whether Defendant was a permanent resident of the U.S. as he stated to a Canadian Immigration officer. (DH 11.) After U.S. officials advised that Defendant was not a permanent U.S. resident as claimed, he was denied admission to Canada and the bus in which he was traveling was sent back to the U.S. side of the Peace Bridge. (DH 11, 14, 15, 18.) Once there, Defendant was interviewed by William Schoenrock, a U.S. Customs and Border Protection enforcement officer. (DH 11, 20.) Defendant stated that he had entered the United States in July of 2003, hidden in the trunk of his wife's vehicle. (DH 20.)
The statute Defendant is charged with violating provides, in relevant part, that:
(1) has been denied admission, excluded, deported or removed or has departed the United States while an order of exclusion, deportation or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission . . . . shall be fined under Title 18, or imprisoned not more than 2 years, or both.
A. Defendant's Motion to Bar the Government from Arguing that Defendant was "Found In" the United States or that he Never Left the United States on July 20, 2006
Defendant argues it is black letter law that a person cannot be "found in" the United States at a port-of-entry for purposes of 8 U.S.C. § 1326(a). The Government contends that the circumstances of this case are factually distinguished from those relied on by Defendant and that the Government should not be precluded from arguing a violation of section 1326(a) based on the "found in" provision. I find that the facts as presented on this motion are sufficiently distinguishable from those in Defendant's cited cases to permit the Government to offer proof of a "found in" violation.
An alien commits the offense of being "found in" the United States if he enters the country unlawfully after making a surreptitious border crossing that conceals his presence or enters through a recognized port by means of specious documentation that conceals the illegality of his presence. The commission of the offense is not complete, however, until the authorities both discover the illegal alien in the United States and know, or with the ...