The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
On May 11, 2012, the defendant, Walter Yovany Vasquez Macias, was found guilty by a jury of being an illegal alien person found in the United States in violation of Title 8 U.S.C. Sections 1326(a) and (b)(2). Defendant Macias moves pursuant to Fed. R. Crim. P. 29(c) for a judgment of acquittal in spite of the jury verdict.
Defendant Macias does not dispute any of his conduct as proven during his trial. Instead, the defendant contends he was not, as a matter of law, "found in" the United States for purposes of violating § 1326 because he had made his way to the Canadian side of the international border before he was taken into custody and returned to the United States. The United States contends that, because the defendant did not succeed in gaining entry to Canada, he did not leave the United States, and he was found in the United States when returned from Canada just as if he were any other illegal alien person caught inside the United States.
Defendant Macias' motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c) was untimely filed. The Court has considered deeming the defendant's motion timely pursuant to its authority to do so in Fed. R. Crim. P. 45(b)(1). The Court has reviewed the arguments raised by the defendant in his motion - they were all raised before at various stages of the proceedings - and finds no arguments needing further consideration. Accordingly, the Court will decline to deem the defendant's Rule 29(c) motion for a judgment of acquittal timely and denies it as untimely.
The United States and defendant Macias agree that, on January 10, 2012, the defendant walked across the Rainbow Bridge in Niagara Falls, New York, to the Canadian side of the bridge in Niagara Falls, Ontario. The defendant was denied entry to Canada by Canadian immigration authorities. He was returned by Canadian Immigration authorities in handcuffs to the custody of United States immigration authorities on the United States' side of the international bridge and was charged with the crime of being found in the United States illegally after having been removed.
The parties also agree that defendant Macias is neither a citizen nor a national of the United States and that, after he was convicted of an aggravated felony, he was removed from the United States to Honduras on June 29, 2000. They agree that the defendant was living in the United States for a period of years before traveling to Niagara Falls from Texas and attempting to enter Canada on January 10, 2012. They agree that he had neither sought nor obtained permission of the United States to be present in the United States or to reapply for admission.
Fed. R. Crim. P. 29(c) authorizes a defendant to "move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Id. The guilty verdict in this case was returned and the jury discharged on May 11, 2012. Defendant Macias' Rule 29(c) motion was due on or about May 25, 2012. See Fed. R. Crim. P. 45(a). The defendant did not request an extension of time. The defendant's Rule 29(c) motion was filed June 7, 2012, without a motion pursuant to Rule 45(b)(1)(B) to extend the time for its filing. The motion was therefore untimely filed.
The Court has authority pursuant to Fed. R. Crim. P. 45(b)(1) to deem a late-filed motion timely. For the reasons stated below, the Court finds no reason to do so.
Defendant Macias was charged in an Indictment with violating Title 8 U.S.C. Sections 1326(a) and 1326(b)(2), which read in pertinent part as follows:
(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 ...