USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1115
UNITED STATES,
Appellee,
v.
DEVON WAYNE SMITH,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin, Circuit Judge,
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and Keeton,* District Judge.
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Peter Bruce Krupp, Federal Defender Office, by Appointment
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of the Court, for appellant.
James Francis Lang, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for
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appellee.
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September 7, 1994
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* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Chief Judge. Defendant-Appellant Devon
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Wayne Smith entered a conditional plea of guilty to an indictment
charging him with illegally reentering the United States
following a deportation order subsequent to a conviction for an
aggravated felony, in violation of 8 U.S.C. 1326(a) and
(b)(2). On appeal, Smith asserts that the district court erred
in denying his motion to dismiss (1) the entire indictment
because the government unduly burdened his ability to appeal the
deportation order underlying the offense, and (2) that part of
the indictment based on his prior aggravated felony conviction
because that conviction was vacated after the government indicted
Smith in this case. We affirm.
I. BACKGROUND
I. BACKGROUND
On January 5, 1983, Smith, a citizen of Jamaica,
entered the United States at Miami, Florida, as a visitor for
pleasure with authorization to stay until the end of the month.
On October 1, 1984, Smith was charged with possession of
marijuana with intent to distribute in Dorchester, Massachusetts.
Smith was convicted of this offense in Boston Municipal Court
("BMC") on January 30, 1985.
On August 28, 1985, the Immigration and Naturalization
Service ("INS") initiated deportation proceedings against Smith
on the grounds that Smith's conviction subjected him to
deportation under Section 241(a)(11) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. 1251(a)(11). Several
hearings were held on this matter beginning in July of 1987. At
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one of these hearings, the INS brought an additional charge
against Smith: remaining in the United States longer than the
one-month period of time granted upon his original admission, an
offense subjecting Smith to deportation under Section 241(a)(2)
of the INA, 8 U.S.C. 1251(a)(2). Smith admitted he was
deportable on this additional ground, but he contested his
deportability on the original 241(a)(11) charge because he was
attempting to have the BMC conviction vacated. Smith chose to
challenge the 241(a)(11) charge, despite the fact that he
admitted to his deportability on other grounds, because certain
forms of relief that are available under 241(a)(2) are not
available once a defendant is found deportable under
241(a)(11).
Smith's initial efforts to vacate the BMC conviction
were unsuccessful, and on June 30, 1988, an immigration judge
found Smith was deportable under both 241(a)(2) and
241(a)(11) and ordered Smith's deportation. Smith appealed this
ruling on the ground that the judge improperly relied upon an
uncertified copy of the BMC conviction.
On September 25, 1989, while the appeal was pending,
INS agents arrested Smith for an alleged gun offense. Agents
found two 9 mm handguns in Smith's possession after responding to
information provided by the Mirimar, Florida, Police Department
that Smith had been interviewed and found to possess weapons.
The INS knew that Smith had been convicted of carrying a
concealed firearm in October of 1988 (Smith pleaded nolo
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contendere to that charge and an adjudication of guilt was
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"stayed and withheld") and that Smith had been briefly detained
by the INS in May of 1989 after being found in possession of a
knife during an INS sweep.
After the September 1989 arrest, the INS took Smith
into custody and held him in lieu of posting a $25,000 bond.
Smith was never officially charged for the gun offense underlying
the arrest. Smith then moved for a bond determination. An INS
hearing officer ruled on the motion and ordered that Smith be
detained without bond. Smith then requested a redetermination of
the ruling before an immigration judge. On October 18, 1989,
following a hearing, an immigration judge denied Smith's request
for a change in his custody status.
Central to this appeal is Smith's allegation that the
INS detained him without bail in order to unduly burden his
ability to pursue his pending immigration appeal, and to coerce
Smith into waving that appeal. Smith offered no direct evidence
to support this allegation. He does point out, however, that the
record does not indicate that Smith was ever notified of the gun
charges against him -- charges which were never formally made in
the first place -- or that Smith was ever given an opportunity to
be heard on the alleged gun charges underlying his detention.
Smith also points out that, at some point in November of 1989,
Smith was transferred from an INS detention center in Florida,
where his family, business, and lawyer were located, to El Paso,
Texas. Smith's counsel affirmatively asserts in the brief and in
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prior motions before the court that Smith never had an
opportunity to rebut the gun charges, but this assertion is not
supported by an affidavit from Smith himself, or from anyone else
involved in the bond hearings.1
In any event, faced with a lengthy period of
incarceration during the pendency of his immigration appeal,
Smith, in consultation with his attorney in El Paso, decided to
withdraw his appeal and submit to deportation. A motion
withdrawing the appeal, signed by Smith and his attorney, was
filed on November 21, 1989, and Smith was deported to Jamaica.
In March of 1992, Smith reentered the United States at
Miami. He was subsequently arrested by INS agents in Dorchester,
Massachusetts on March 22, 1993. A federal grand jury then
returned the indictment for this case on May 13, 1993.
Meanwhile, in October of 1993, Smith's current counsel
successfully vacated the original 1985 BMC conviction upon which
Smith's deportation was originally based.
Smith moved to dismiss the indictment in the present
case by collaterally attacking the deportation order and the
aggravated felony underlying the charged offenses. A hearing was
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1 There is no evidence in the record concerning what was argued
before the immigration judge or what basis underlay the judge's
decision to uphold the revocation of Smith's bail. Thus, there
is no evidence indicating whether or not Smith was actually heard
on the gun charges. However, Smith's motion for a bond
determination does acknowledge that Smith was detained by the INS
on the basis of a gun charge. Although not critical to the
resolution of this appeal, one could reasonably infer from his
bond motion that Smith did have an opportunity to challenge the
gun charges at the bond hearings.
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scheduled, but Smith did not request an evidentiary hearing for
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the motion. Following a hearing on December 9, 1993, the
district court denied Smith's motion to dismiss the indictment.
Smith's counsel subsequently requested approval of several
subpoenas for the purpose of collecting evidence on the
collateral attack issue with the intent of litigating the issue
at trial. Then, on January 12, 1994, the court granted the
government's motion to exclude all evidence of the circumstances
surrounding the validity of the deportation proceedings. Later
that same day, Smith entered a conditional plea of guilty
pursuant to Fed. R. Crim. P. 11(a)(2), reserving for appeal the
issues presented here.
II. ANALYSIS
II. ANALYSIS
A. Collateral Attack on Deportation: Coerced Waiver of Appeal
A. Collateral Attack on Deportation: Coerced Waiver of Appeal
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To establish an offense under 1326, the government
must prove that the defendant has been previously deported. 8
U.S.C. 1326(a)(1). A defendant accused of violating 1326 may
collaterally attack the underlying deportation order if the
defendant can show that he or she was deprived of the opportunity
for meaningful judicial review of that deportation order. United
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States v. Mendoza-L pez, 481 U.S. 828, 839 (1987) ("Depriving an
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alien of the right to have the disposition in a deportation
hearing reviewed in a judicial forum requires, at a minimum, that
review be made available in any subsequent proceeding in which
the result of the deportation proceeding is used to establish an
element of a criminal offense.").
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Smith argues that his right to collaterally attack the
underlying deportation under Mendoza-L pez was improperly
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foreclosed by the district court. Smith originally contended in
his motion to dismiss that the INS's detention of Smith for an
uncharged gun offense effectively denied him the opportunity for
meaningful judicial review of the deportation proceeding, and
therefore, the proceeding cannot properly serve as the basis for
his indictment under 8 U.S.C. 1326. After denying this motion,
the court ruled that Smith could not present evidence on this
issue at trial. We find no error in the district court's
actions.
We have recently held that a defendant who deliberately
and voluntarily waived his right to appeal a prior deportation
order under the advice of counsel, is not deprived of meaningful
judicial review and thus may not collaterally attack the
deportation order during the 1326 criminal proceedings. United
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States v. Smith, 14 F.3d 662, 665 (1st Cir. 1994); United States
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v. Vieira-Candelario, 6 F.3d 12, 15 (1st Cir. 1993). In this
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case, Smith withdrew his appeal of the deportation order under
the advice of counsel. Smith argues, however, that the waiver of
his appeal was not deliberate and voluntary, but rather was
coerced, and thus his case is distinguishable from the situation
in Smith and Vieira-Candelario. According to Smith, the INS's
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action of imprisoning him without allowing him to challenge the
reason for his incarceration, unconstitutionally burdened his
ability to appeal because it required him to suffer an unlawful
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imprisonment in order to pursue his right to judicial review.
The only way to gain his rightful freedom, Smith argues, was by
waiving his appeal and accepting deportation.
There are a couple of subsidiary issues surrounding
Smith's appeal. The first one is whether any waiver, even if
coerced under the most horrendous and fundamentally unfair of
circumstances, would preclude a Mendoza-L pez-type challenge to a
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subsequent criminal indictment under 1326. We must assume that
there are some circumstances in which a coerced and involuntary
waiver of an appeal constitutes a denial of the opportunity for
meaningful judicial review and thus cannot serve as a bar, under
Smith and Vieira-Candelario, to a collateral challenge of a
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deportation order. See Mendoza-L pez, 481 U.S. at 839 n.17
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(noting that abuses such as coerced confessions, biased judging,
and knowing use of perjured testimony "could operate, under some
circumstances, to deny effective judicial review of
administrative determinations").
The next question is whether Smith's specific
allegations, if true, could constitute sufficiently coercive
circumstances so as to effectively deny Smith of meaningful
judicial review of his deportation order despite his waiver of an
appeal. To the extent Smith alleges that the INS purposefully,
as opposed to mistakenly or inadvertently, detained him without
probable cause, and without formally charging him or allowing him
to subsequently challenge the charges for which he was allegedly
detained, for the deliberate purpose of pressuring him into
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withdrawing his appeal and expediting his deportation, he
presents allegations that conceivably might be sufficient to
raise a Mendoza-L pez issue in a subsequent criminal case.
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Although Smith could still pursue his appeal while in prison,
even under such egregious circumstances as the ones he alleges, a
court might not be precluded from finding that such circumstances
violated the requirement that Smith be afforded meaningful
judicial review.
That leaves the issue of whether Smith adequately
presented the matter to the district court in a way that would
allow the court to make a finding that Smith's allegations are
true. There is no evidence in the record to support any aspect
of Smith's allegations that he was coerced into waiving his
appeal of the deportation order. On the contrary, what evidence
does exist indicates that Smith was lawfully detained for weapons
violations, that he was given two opportunities to challenge his
detention, including a hearing before an immigration judge, and
that the INS reasonably believed it had cause to detain Smith
because Smith had been picked up for previous weapons violations
and because he was found with two 9 mm handguns. The fact that
no formal gun charges were brought against Smith and the fact
that Smith was transferred from Miami to El Paso do not rise to
the level of evidence of deliberate coercion by the INS. In sum,
there is no evidence to support a finding that Smith was denied
meaningful judicial review of his deportation order.
Smith nevertheless contends that (1) the district court
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did not even consider the merits of his coercion claim, and (2)
he tried to present evidence in support of his allegations but
the district court prevented him from doing so. As an initial
matter, the court made no factual findings or explicit legal
findings when it denied Smith's motion to dismiss. At that
point, however, Smith had presented no evidence -- not even an
affidavit from Smith himself -- to support his claim of coercion
by the INS. Smith also failed to request an evidentiary hearing
in conjunction with his motion to dismiss. Having thus failed to
establish any factual basis for his claim, the district court was
warranted in rejecting Smith's motion for dismissal out of hand.
See D. Mass. Loc. R. 7.1(A)(2); United States v. Levasseur, 704
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F. Supp. 1158, 1168 (D.Mass. 1989).
Smith argues that even if his motion was properly
dismissed, he still had a right to present evidence of the INS's
coercion of Smith at trial as an affirmative defense under the
Mendoza-L pez doctrine. We find no support for this contention.
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As with motions to suppress evidence, alleged constitutional
infirmities in matters collateral to the elements of the charged
offense involve complex questions of both law and fact that are
appropriately determined by the court in a preliminary hearing.
Cf. Mendoza-L pez, 481 U.S. at 832 (affirming circuit court
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opinion that found due process required a "pretrial review" of
the underlying deportation). Although the Ninth Circuit has held
that the Mendoza-L pez issue must go to the jury if the issue has
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not previously been addressed before trial, United States v.
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Ibarra, 3 F.3d 1333, 1334 (9th Cir. 1993) -- a ruling about which
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we express no opinion at this point -- even that opinion
foreclosed a relitigation of the issue if already decided by the
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court on a pretrial motion. Id. In this case, the district
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court granted a preliminary hearing on the Mendoza-L pez issue at
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which Smith had the opportunity to fully and fairly litigate the
issue before the court. If Smith failed to request an
evidentiary hearing or otherwise failed to take full advantage of
the opportunity afforded to him by the district court, such
failure was of his own doing and does not, by itself, warrant a
second bite at the apple. Under such circumstances, Smith cannot
assert a right to relitigate the Mendoza-L pez issue at trial.
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Therefore, the court's dismissal of Smith's motion, and its
subsequent exclusion of evidence pertaining to Smith's
deportation proceedings are affirmed.
B. Attack on Aggravated Felony Portion of the Indictment
B. Attack on Aggravated Felony Portion of the Indictment
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In his motion to dismiss, Smith also argued that proof
of a prior aggravated felony conviction is an element of an
offense under 8 U.S.C. 1326(b)(2).2 Because Smith's only
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2 8 U.S.C. 1326 provides in relevant part:
(a) Subject to subsection (b) of this
section, any alien who --
(1) has been arrested and deported or
excluded and deported, and thereafter
(2) enters, attempts to enter, or is at
any time found in, the United States . .
.
shall be fined under Title 18, or
imprisoned not more than 2 years, or
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aggravated felony conviction had been vacated by the state court,
Smith argued in the motion that the district court should dismiss
that part of the indictment which referenced the aggravated
felony provision, 1326(b)(2). The district court rejected this
argument when it denied the motion.
Subsequent to the proceedings in the district court, we
decided United States v. Forbes, 16 F.3d 1294, 1297-1300 (1st
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Cir. 1994), in which we held that 1326(b) does not establish a
separate offense, but rather simply provides a sentence
enhancement for those convicted under 1326(a) (the offense for
reentry into the United States after being deported), who had
been convicted of an aggravated felony before their deportation.
That case controls the present issue. Section 1326(b)(2) is not
a separate element of an offense and therefore, the vacation of
Smith's underlying felony conviction cannot provide grounds for
dismissal of the indictment. The district court's ruling must
therefore be upheld.
Smith urges us to reconsider our holding in Forbes. We
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decline to upset that decision and, in any event, are not free to
do so as a newly constituted panel. Broderick v. Roache, 996
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both.
(b) Notwithstanding subsection (a) of
this section, in the case of any alien
described in such subsection --
(2) whose deportation was subsequent to a
conviction for commission of an
aggravated felony, such alien shall be
fined under such Title, imprisoned not
more than 15 years, or both.
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F.2d 1294, 1298 (1st Cir. 1993). Furthermore, we note that the
district court prudently sentenced Smith as if his aggravated
felony did not exist, by implementing a downward departure that,
according to the court, "in effect strips out the conviction that
has been vacated." Thus, even if the district court had erred in
refusing to dismiss the aggravated felony portion of the
indictment, which it did not, that error would have been harmless
because Smith was never sentenced on the allegedly erroneous
count. United States v. Long, 894 F.2d 101, 108 (5th Cir. 1990).
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Affirmed.
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