United States Court of Appeals,
Eleventh Circuit.
No. 95-8755.
UNITED STATES of America, Plaintiff-Appellee,
v.
David Andrew HENRY, a.k.a. David Henry Corelli, Defendant-
Appellant.
May 1, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CR412-1-ODE), Orinda D. Evans,
Judge.
Before DUBINA and BLACK, Circuit Judges, and O'KELLEY*, Senior
District Judge.
O'KELLEY, Senior District Judge:
Appellant challenges his conviction of being found in the
United States after deportation without the Attorney General's
consent in violation of Title 8 U.S.C. § 1326. The primary issue
on appeal is whether the offense of illegal reentry into the United
States after deportation in violation of Title 8 U.S.C. § 1326 is
a specific intent crime.
Appellant David Andrew Henry was deported on November 9, 1988,
under the name David Andrew Corelli, following his conviction in
the State of Virginia for the offense of possession with intent to
distribute cocaine. Appellant asserts that he provided the
government with his actual name while he awaited deportation;
however, his deportation paperwork bore the name David Henry
Corelli also known as David Andrew Corelli. On August 21, 1992,
*
Honorable William C. O'Kelley, Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
appellant obtained a multiple entry United States visa from the
United States Embassy in Kingston, Jamaica. In order to obtain the
visa, it was necessary for appellant to complete several forms and
answer questions, including questions regarding prior convictions.
Appellant asserts that he submitted the forms as well as a Jamaican
passport, which bore the name Dave Andrew St. Alban Henry, to the
United States Embassy. He then underwent an interview. Pursuant
to State Department policy, appellant's visa application was
destroyed after one year.
On October 18, 1994, appellant was arrested, having been found
in the United States in the Northern District of Georgia without
first having obtained the consent of the Attorney General to
reapply for admission in violation of Title 8 U.S.C. § 1326.
Appellant was charged in a one count indictment with illegal
reentry into the United States after deportation in violation of
Title 8 U.S.C. § 1326.
At trial, appellant requested a specific intent instruction as
an element of the offense of illegal reentry under Title 8 U.S.C.
§ 1326. The court denied appellant's request and instructed the
jury that the "government is not required to prove that the
defendant knew he was breaking the law in reentering the United
States or being in the United States, only that the defendant
reentered and was present in the United States voluntarily." [R4-
333]. In addition, the court instructed the jury that "officials
and employees of a U.S. Consulate and Immigration Inspectors at
points of entry into the United States are not designees of the
Attorney General for the purposes of 8, United States Code, section
1326, and as a matter of law cannot provide the consent to reapply
for admission referred to in that statute." Id. Appellant argues
that the court foreclosed any opportunity for appellant to argue
that he had a good faith belief as to the Attorney General's, or
her designee's, permission to allow him to travel to the United
States.
Also at trial, the government called U.S. Foreign Service
Officer Patty Hill to testify as to the process by which a prior
deportee must obtain permission from the Attorney General to
reapply for admission to the United States. Ms. Hill testified as
to the various forms that have to be completed in order for a
person to obtain a nonimmigrant visa. Ms. Hill further testified
that the nonimmigrant visa form asks an applicant whether he or she
has ever been convicted as a drug trafficker. Appellant argues
that Ms. Hill's testimony should have been excluded because it was
speculative, unreliable, prejudicial, confusing, and misleading.
Following a three-day jury trial, appellant was convicted on
the single count in the indictment. Appellant was sentenced to
sixty-four months imprisonment, to be followed by three years
supervised release. Appellant filed a timely notice of appeal.
The statute at issue provides in pertinent part:
§ 1326. Reentry of deported alien; criminal penalties for
reentry of certain deported aliens.
(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, 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; or (B)
with respect to an alien previously excluded and deported,
unless such alien shall establish that he was not required to
obtain such advance consent under this chapter or any prior
Act,
shall be fined under Title 18, or imprisoned not more than 2
years, or both.
8 U.S.C. § 1326(a). The trial judge instructed the jury that the
elements of a violation of § 1326 are (1) that the defendant is an
alien, (2) that the defendant has been arrested and deported from
the United States, and (3) that thereafter the defendant was found
in the United States without the Attorney General's express consent
to reapply for admission. Appellant disputes the elements as set
forth above. Appellant does not dispute the first two elements nor
that he was found in the United States. However, appellant argues
that the government must show that appellant had the specific
intent to reenter the United States without the express consent of
the Attorney General.
Seven of our sister circuits have addressed this issue. Six
have concluded that specific intent is not an element of § 1326.
See United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir.1996)
(section 1326 does not require the government to prove specific
intent nor does it provide an alien who reenters this country
illegally with a defense of reasonable mistake); United States v.
Espinoza-Leon, 873 F.2d 743 (4th Cir.1989) (a conviction under §
1326 requires proof merely of a voluntary act by defendant, general
intent); United States v. Hussein, 675 F.2d 114 (6th Cir.1982)
(the government need not prove specific intent under § 1326);
United States v. Hernandez, 693 F.2d 996 (10th Cir.1982) (section
1326 contains no requirement of specific intent); United States v.
Newton, 677 F.2d 16 (2d Cir.1982) (there is nothing in the language
or legislative history of § 1326 to support the proposition that
the government must prove specific intent); Pena-Cabanillas v.
United States, 394 F.2d 785 (9th Cir.1968) (specific intent is not
an element of § 1326). This court has previously opined in dictum
that the government "is not required to show specific intent in a
§ 1326 prosecution." United States v. Wong Kim Bo, 472 F.2d 720,
722 (5th Cir.1972).1 The Seventh Circuit has concluded that
specific intent is an element of § 1326. United States v. Anton,
683 F.2d 1011 (7th Cir.1982) (Posner, J., dissenting). The court
notes, however, that the decision was handed down by a divided
panel over a dissent by Judge Posner.
Section 1326 on its face is silent on the issue of intent.
Congress did not explicitly impose a requirement of specific intent
anywhere in the statute, nor did it provide that an alien's
reasonable belief that he was legally entitled to reenter the
United States is a defense to criminal liability. Trevino-
Martinez, 86 F.3d at 68. The fact that a criminal statute omits
any mention of intent does not mean that it will necessarily be
construed as eliminating that element from the crime denounced.
Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.
288 (1952). Instead, where a statute is silent as to intent, it
becomes a question of legislative intent to be construed by the
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981), the court adopted as binding precedent all decisions
of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981. Id. at 1209.
court. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66
L.Ed. 604 (1922).
The Ninth Circuit analyzed the legislative history of § 1326
in Pena-Cabanillas and found nothing to support the proposition
that the government must prove specific intent. The power of
Congress to control immigration is plenary and vests Congress with
broad discretion in defining offenses in the area. Pena-
Cabanillas, 394 F.2d at 788. "The right to exclude or to expel all
aliens or any class of aliens, absolutely or upon certain
conditions, is an inherent and inalienable right which is essential
to the safety, independence and welfare of every sovereign nation."
Id. Section 1326 is not based upon any common law crime but is a
regulatory statute enacted to assist in the control of unlawful
immigration by aliens. Id. Thus, the Ninth Circuit concluded that
the offense was a typical mala prohibita offense, and since it
denounces the doing of an act as criminal, if a defendant
voluntarily does the forbidden act, the law implies the intent.
Id. at 788-89 (citing United States v. Balint, 258 U.S. 250, 42
S.Ct. 301, 66 L.Ed. 604 (1922)). Moreover, several other
provisions of the same statute prohibit "willful" or "knowing"
actions. See Pena-Cabanillas, 394 F.2d at 789-90, n. 4. "Where
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acted intentionally and purposely in
excluding the particular language." See Russello v. United States,
464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). Thus,
the Ninth Circuit concluded that specific intent is not an element
of § 1326.
We agree with the reasoning set forth above and find that
specific intent is not an element of the offense of illegal reentry
into the United States after deportation in violation of Title 8
U.S.C. § 1326. Appellant's alleged good faith belief that he had
the Attorney General's express permission to reenter the United
States is irrelevant. Accordingly, we affirm the trial court's
denial of appellant's request for a jury instruction on specific
intent. Turning to appellant's remaining two issues on appeal, we
uphold the trial court's rulings without discussion.
Accordingly, the judgment of the district court is AFFIRMED.