United States Court of Appeals
For the First Circuit
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No. 00-1068
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
PLÁCIDO CABRAL, ETC.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
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Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
García-Gregory,* U.S. District Judge.
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Yasmín Irizarry, Assistant Federal Public Defender, with whom
Joseph C. Laws, Jr., Federal Public Defender, was on brief, for
appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief,
Criminal Division, Assistant United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, were on brief, for appellee.
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* Of the District of Puerto Rico, sitting by designation.
June 12, 2001
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GARCÍA-GREGORY, District Judge. Plácido Cabral was
convicted, following a jury trial, for attempting to re-enter the
United States after having been previously arrested and deported, in
violation of 8 U.S.C. § 1326. On appeal, Cabral argues that the
district court erred in denying his motion for acquittal because he did
not attempt to re-enter the United States, and because he lacked a
specific intent to do so, as the statute allegedly requires. Cabral
also contends that the district court erred by failing to instruct the
jury on specific intent as an element of the offense. We affirm.
BACKGROUND
In 1988, Cabral was arrested and deported to the Dominican
Republic. Prior to his deportation, the immigration authorities
explained to him the process by which he could seek permission to re-
enter the United States, which included obtaining consent from the
United States Attorney General before commencing travel to the United
States. When Cabral showed up at the detention facility prior to his
deportation, he did not have his alien resident card with him; thus, he
did not turn it over before returning to the Dominican Republic.
Following his deportation, the INS revoked Cabral’s resident alien
status, thereby invalidating his card, which had a 2002 expiration
date.
On May 19, 1999, Cabral arrived at the immigration booth at
the San Juan International Airport. Cabral handed the immigration
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inspector his invalid alien resident card, a Dominican passport lacking
any type of visa or other authorization to enter the United States, and
a Customs Declaration form featuring a Puerto Rico address as his
alleged “Place of Residence.” Cabral did not advise the authorities
about his deportation status at that time. When the immigration
inspector entered Cabral’s information into the system, he learned that
a person with Cabral’s name and birthdate had been previously deported.
As a result, Cabral was taken to a secondary inspection area. Once
there, the immigration inspectors retrieved from him a one-way ticket
from the Dominican Republic to Puerto Rico, and $4.10 in cash. Cabral
carried no credit cards.
The inspector asked Cabral whether he had experienced any
previous problems with the authorities, particularly the immigration
authorities. Cabral replied he had not. After taking his fingerprints
and advising him that a positive FBI match would be regarded as lying
to a federal law enforcement officer, the inspector asked Cabral
whether he wished to reconsider his answer. Cabral did so and
acknowledged his prior deportation. Cabral also admitted that he had
been advised about the need to obtain the express consent of the
Attorney General prior to re-entering the United States. Cabral
admitted that he had not yet sought a waiver, but said he wished to do
so at that time. Cabral was thereafter placed under arrest for
illegally seeking re-entry into the United States.
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On September 2, 1999, after a two-day trial, the jury found
Cabral guilty of violating 8 U.S.C. § 1326. The district court
sentenced Cabral to a prison term of 96 months, with a three-year
supervised release term.
STANDARD OF REVIEW
In determining the sufficiency of the evidence, “we view the
facts and witness credibility determinations, as well as draw
reasonable inferences, in favor of the government.” United States v.
Freeman, 208 F.3d 332, 337 (1st Cir. 2000). As long as the evidence,
taken as a whole, warrants a judgment of conviction, the evidence is
legally sufficient. Id.; see United States v. Olbres, 61 F.3d 967, 970
(1st Cir. 1995). Since Cabral timely objected to the district court’s
failure to instruct on specific intent as an element of the offense,
his challenge is subject to harmless error review. Scarfo v. Cabletron
Sys. Inc., 54 F.3d 931, 939 (1st Cir. 1995).
DISCUSSION
The government charged Cabral with a violation 8 U.S.C. §
1326, which prohibits attempted re-entry into the United States by a
deported alien. In order to obtain a conviction for this offense, the
government was required to prove four elements:(1) that Cabral was an
alien at the time of the alleged offense;(2) that he had previously
been arrested and deported; (3) that he attempted to enter the United
States; (4) that he had not received the express consent of the
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Attorney General of the United States to apply for readmission to the
United States since the time of his previous arrest and deportation.
See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1131-32 (5th Cir.
1993).
The principal question on appeal is whether the evidence
supports a finding that Cabral attempted to re-enter illegally into the
United States. Cabral does not dispute that he was an alien at the
time of his arrest, that he had been previously arrested and deported
to the Dominican Republic, and that he did not receive advance consent
from the Attorney General of the United States prior to arriving at the
port of entry. Nonetheless, Cabral contends that his intent was not to
re-enter the United States but rather to request permission at the port
of entry. Had the immigration inspectors informed him that he could
not obtain permission to enter at the port of entry, he argues, he
would have returned to the Dominican Republic.
The evidence presented at trial belies Cabral’s contention.
Upon his arrival at the port of entry, Cabral made no immediate effort
to inform the authorities about his deportation status. Instead, he
handed immigration authorities an invalid alien resident card (which
appeared valid on its face and had a 2002 expiration date), a Dominican
passport without a visa, and a Customs Declaration form with a Puerto
Rico address as his putative place of residence. At no point during
the time he spent at the initial inspection area did Cabral indicate
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that he was merely there to request a waiver from the Attorney General.
It was only at the secondary inspection point – and even then after
some prodding - that Cabral finally divulged his deportation status.
An alien who has been deported and, without prior
authorization, voluntarily approaches a port of entry and makes a false
claim of residency has attempted to re-enter the United States and,
therefore, has the required intent to support a conviction under §
1326. See United States v. Gracidas-Ulibarry, 192 F.3d 926, 930 (9th
Cir. 1999); Cardenas-Alvarez, 987 F.2d at 1133. Here, the evidence
supports a finding that Cabral’s actions were designed to convince the
immigration authorities that he was entitled to enter the United
States. Cabral sought to pass himself off as a legal resident by
making a false claim of residency at the port of entry.1 Moreover,
Cabral’s suggestion that he merely intended to request a waiver from
the Attorney General and, if rebuffed, to return to the Dominican
Republic, is disingenuous. The evidence shows that Cabral had only a
one-way ticket from Santo Domingo to Puerto Rico and less than five
1 It should also be noted that, in light of Cabral’s
deportation status, he was required to obtain a visa from the
Dominican authorities, in addition to the Attorney General’s
consent, prior to departing to Puerto Rico. A visa would not
have been required, however, had Cabral shown his seemingly
valid alien resident card. Thus, it appears likely that he was
able to depart from the Dominican Republic without a visa by
using his canceled alien resident card.
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dollars in his possession – simply not enough to return, even if he
wanted to do so.
Cabral’s actions at the port of entry show that he attempted
to deceive the immigration authorities into allowing him to re-enter
the country. He knew that he was required to obtain permission from
the Attorney General prior to coming to the United States, but failed
to do so. He knew (or should have known) that his alien resident card
was no longer valid, yet he tried to use it at the port of entry. In
all likelihood, Cabral realized that the chances that he would obtain
permission were slim, and he decided to take a calculated risk in order
to meet with his family. Unfortunately, his strategy backfired. He
now must face the consequences of his actions. The evidence amply
supports the jury’s finding that Cabral attempted to re-enter the
United States in violation of 8 U.S.C. § 1326.
Cabral next contends that the government was required to
prove that he had a specific intent to re-enter the United States, and,
as a corollary, that the district court should have instructed the jury
on specific intent as an element of the offense. Cabral’s argument that
§ 1326 contains a specific intent requirement has not been well
received by the courts. Of the ten circuit courts that have considered
whether the government is required to prove that a defendant had a
specific intent to reenter the United States, nine have said it is not.
See United States v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997); see
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also United States v. Martus, 138 F.3d 95 (2d Cir. 1998)(per curiam);
United States v. Espinoza-Leon, 873 F.2d 743 (4th Cir. 1989); United
States v. Guzman-Ocampo, 236 F.3d 233 (5th Cir. 2000); United States v.
Hussein, 675 F.2d 114 (6th Cir. 1982); United States v. Gonzalez-
Chavez, 122 F.3d 15 (8th Cir. 1997); United States v. Ayala, 35 F.3d
423 (9th Cir. 1994); United States v. Hernandez, 693 F.2d 996 (10th
Cir. 1982); United States v. Henry, 111 F.3d 111 (11th Cir. 1997); cf.
United States v. Anton, 683 F.2d 1011 (7th Cir. 1982)(2-1
decision)(Posner, J., dissenting).
We need go no further. Even if we decided to entertain the
specific intent issue (which appears to have been squarely rejected by
the Soto Court in any event), the evidence here is sufficiently strong
to support a finding that Cabral specifically intended to re-enter the
United States.
Accordingly, the district court’s denial of Cabral’s motion
for acquittal, and the decision not to instruct the jury on specific
intent as an element of the offense, was proper.
CONCLUSION
The judgment of the district court is affirmed.
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