UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-40677
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
Jose TREVIÑO-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
June 7, 1996
Before JONES, SMITH, and STEWART Circuit Judges.
EDITH H. JONES, Circuit Judge:
Jose Treviño-Martinez (“Treviño”) appeals his conviction
for illegally reentering the United States. 8 U.S.C. § 1326(b).
This court agrees with the majority of courts of appeals that
Treviño's crime was not a specific intent offense. Overruling
appellant's challenges centered on that point, we affirm the
conviction.
BACKGROUND
In 1988, Treviño, a Mexican citizen, was arrested in the
United States and convicted of possession of marijuana with intent
to distribute.1 After serving six months in jail for this offense,
This offense is an “aggravated felony” under the Immigration and
Nationality Act. See 8 U.S.C. § 1101(43)(B).
Treviño was deported pursuant to the Immigration and Nationality
Act, 8 U.S.C. §§ 1101-1524. Under the terms of his deportation,
before reentering the United States, Treviño was required to obtain
the express consent of the Attorney General; failure to do so would
subject him to fines and imprisonment. In fact, since Treviño had
committed an aggravated felony while in this country, he confronted
the prospect of 20 years of imprisonment should he illegally
reenter the United States. 8 U.S.C. § 1326(b)(2).
Undaunted, however, Treviño illegally returned to the
United States in January of 1991. He was immediately arrested and,
after serving four months in jail, was deported to Mexico in May of
1991. Even after this second deportation, Treviño sought
to return to this country from Mexico. In 1992, purportedly
longing to visit his wife and four children in the United States,
Treviño applied for a non-immigrant visa with the United States
consulate in Monterrey, Mexico. The Monterrey consulate’s standard
visa application procedure requires applicants to complete a form
that, in part, inquires whether the applicant had been previously
arrested or deported. While there is some dispute about whether
Treviño completed this standard visa application or some other,
modified application that did not inquire into previous arrests or
deportations, Treviño acknowledges that the consular officials were
unaware of his prior arrests and deportations. After considering
his application, the American consulate issued Treviño a ten-year,
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non-immigrant visa and, pursuant to its usual practice, destroyed
the application form one year later.2
For the next few years, Treviño made frequent trips to
the United States. On one such trip in January of 1995, Treviño
was jailed for ten days on convictions for DWI and for driving with
a suspended license. During his confinement, border patrol agents
conducting a routine examination of the jail interviewed Treviño,
who confessed that he was in this country illegally because of his
prior arrests and deportations. Treviño was subsequently indicted
on the charge of illegal reentry after deportation.
After a two-day jury trial, Treviño was convicted of the
offense and was later sentenced to serve 77 months imprisonment,
followed by three years of supervised release.
DISCUSSION
The sole contested issue during Treviño’s trial was
whether he had obtained the consent of the Attorney General of the
United States to reenter this country. The only issues on appeal
concern defense-proffered jury instructions that were rejected.
Treviño contends that he reasonably believed that the non-immigrant
visa issued to him by the American consulate in Monterrey entitled
him to reenter the United States legally; put differently, Treviño
argues that he reasonably concluded that his visa somehow acted as
a proxy for the consent of the Attorney General. Based on this
Treviño’s visa permitted him multiple reentries into the United States
for up to 72 hours per entry.
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contention, Treviño submitted proposed jury instructions on express
consent, mistake of law, and entrapment by estoppel.
I. Standard of Review
Recognizing that district courts enjoy substantial
latitude in formulating jury instructions, this court reviews the
refusal to provide a requested instruction for abuse of discretion.
United States v. Smithson, 49 F.3d 138, 142 (5th Cir. 1995). The
district court abuses its discretion when it declines a proffered
instruction only if this instruction “(1) was a correct statement
of the law, (2) was not substantially covered in the charge as a
whole, and (3) concerned an important point in the trial such that
the failure to instruct the jury on the issue seriously impaired
the defendant’s ability to present a given defense.” Id.
II. Express Consent
Treviño sought to have the jury instructed that it was
entitled to find that the American consulate’s decision to issue
him a non-immigrant visa “satisfies the requirement that he obtain
the express consent of the Attorney General . . . .” The district
court did not err in rejecting this clearly incorrect statement of
law.
An alien who has been previously arrested and deported is
required to obtain the express consent of the Attorney General
prior to his application for readmission to the United States. See
8 U.S.C. § 1326. Typically, an alien obtains such consent by
securing a written authorization from the Immigration and
Naturalization Service (“INS”) permitting him to reenter this
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country. Importantly, however, this authorization may be issued
only by the Attorney General or the INS; under the statute, the
American consulate is powerless to grant such an authorization. 8
C.F.R. §§ 212.2(b)(2), 212.4(c). Treviño could not demonstrate
that either the Attorney General or the INS expressly authorized
his reentry into the United States. His proposed jury instruction
was wrong.
III. Mistake of Law
Treviño next tendered an instruction that required
acquittal if the jury found that he mistakenly believed that he had
obtained proper authorization to reenter the United States and if
this “mistaken belief was reasonable and [Treviño] did not intend
to enter the United States unlawfully . . . .” (emphasis added).
To support this proffered instruction, Treviño urges that the
statute prohibiting his reentry requires the government to prove
beyond a reasonable doubt that he acted with specific intent to
circumvent the express consent of the Attorney General.
However, the language of the statute belies the existence
of a requirement of specific intent. In pertinent part, 8 U.S.C.
§ 1326 provides that any alien who
(1) has been arrested and deported or excluded
and deported, and thereafter
(2) enters, attempts to enter, or is 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
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such advance consent . . . . shall be fined .
. . or imprisoned not more than 2 years, or
both.
8 U.S.C. § 1326 (a)(1)-(2).3 Congress did not 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.
This court has previously opined as much, suggesting 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). Other circuits have confronted the issue
directly, and the majority agree that the statute neither requires
the government to prove specific intent nor allows an alien to
defeat conviction by demonstrating a reasonable belief of
permission to reenter this country. See United States v. Leon-
Leon, 35 F.3d 1428, 1432-22 (9th Cir. 1994) (specific intent is not
an element of § 1326); United States v. Champegnie, 925 F.2d 54,
55-56 (2d Cir. 1991) (same); United States v. Espinoza-Leon, 873
F.2d 743, 746 (4th Cir.), cert. denied, 492 U.S. 924, 109 S. Ct.
3257 (1989); United States v. Miranda-Enriquez, 842 F.2d 1211, 1212
(10th Cir.), cert. denied, 488 U.S. 836, 109 S. Ct. 100 (1988);
United States v. Hussein, 675 F.2d 114, 116 (6th Cir.) (same),
cert. denied, 459 U.S. 869, 103 S. Ct. 154 (1982). Only a divided
panel of the Seventh Circuit, over a dissent by Judge Posner, has
As discussed earlier, although this section imposes a maximum
imprisonment of two years, Treviño was eligible for up to 20 years of imprisonment
as he had been convicted while in the United States of the aggravated felony of
possession of marijuana with intent to distribute. See 8 U.S.C. § 1326(b)(2).
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ruled to the contrary. United States v. Anton, 683 F.2d 1011, 1017
(7th Cir. 1982) (holding that “there is some mental state
requirement” for a § 1326 prosecution).
This court concludes with the majority of circuits that
§ 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.4 As a result, the proposed jury
instruction is directly contrary to the express statutory language
and is an incorrect statement of the law.
IV. Entrapment by Estoppel
Finally, Treviño contends that even if § 1326 does not
require the government to prove specific intent, the district court
nonetheless erroneously refused to instruct the jury on entrapment
by estoppel. Treviño asserted that the jury must acquit him if it
found that he had relied on “misleading information furnished by
Contrary to appellant’s suggestion, this court’s holding that the government
need not prove specific intent neither implicates nor contravenes the Supreme
Court’s decision in Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084 (1985).
In sharp contrast to the instant case, the statute in Liparota expressly
contemplated a mens rea requirement. Specifically, the statute prohibited the
fraudulent use of food stamps and provided that “whoever knowingly uses, transfers,
acquires, alters, or possesses coupons or authorization cards in any manner not
authorized by [the statute] or the regulations” shall be guilty of a criminal
offense. Liparota, 471 U.S. at 420, 105 S. Ct. at 2085 (emphasis added). The
Supreme Court observed that “Congress certainly intended by use of the word
‘knowingly’ to require some mental state with respect to some element of the crime
defined [by the statute].” Liparota, 471 U.S. at 424, 105 S. Ct. at 2087 (emphasis
in original).
Furthermore, the Supreme Court emphasized that its holding in Liparota
did not support or create a mistake of law defense. The Court explained that its
holding . . . no more creates a ‘mistake of law’ defense
than does a statute making knowing receipt of stolen goods
unlawful . . . . It is not a defense to a charge of
receipt of stolen goods that one did not know that such
receipt was illegal, and it is not a defense to a charge
of a § 2024(b)(1) violation that one did not know that
possessing food stamps in a manner unauthorized by statute
or regulations was illegal.
Liparota, 471 U.S. at 425 n.9, 105 S. Ct. at 2088 n.9. In the same fashion, the
instant statute does not allow an alien to defeat conviction by demonstrating a
reasonable belief of permission to reenter this country.
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the government and mistakenly thought his conduct was sanctioned by
the government,” provided the jury found such reliance to be
“reasonable and sincere.”
This court has recently explained that a criminal
defendant may be entitled to raise a defense of entrapment by
estoppel only “when a government official or agent actively assures
a defendant that certain conduct is legal and the defendant
reasonably relies on that advice and continues or initiates the
conduct.” United States v. Spires, 79 F.3d 464, 466 (5th Cir.
1996). See also, United States v. Meraz-Valeta, 26 F.3d 992, 996
(10th Cir. 1994) (government must mislead the defendant and the
defendant must reasonably rely on this misrepresentation) (citing
Cox v. Louisiana, 379 U.S. 559, 568-71, 85 S. Ct. 476, 482-84
(1965); Raley v. Ohio, 360 U.S. 423, 437-39, 79 S. Ct. 1257, 1265-
67 (1959)). Hence, the government must actively mislead the
defendant by inducing him to rely on “an affirmative
misrepresentation of the law by [the government official].” United
States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994), cert. denied,
___ U.S. ___, 115 S. Ct. 1810 (1995). In order for his reliance to
be reasonable, the defendant must establish that “a person
sincerely desirous of obeying the law would have accepted the
information as true, and would not have been put on notice to make
further inquiries.” United States v. Brebner, 951 F.2d 1017, 1024
(9th Cir. 1991) (citations omitted).
There is no evidence in the record to support this
defense for Treviño. He did not demonstrate that the American
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consulate affirmatively misrepresented as legal his attempts to
reenter this country; he was not actively misled by the government
since the consulate did not assure Treviño that his actions were
proper. See, e.g., United States v. Clark, 546 F.2d 1130, 1135
(5th Cir. 1977). Moreover, because Treviño was not candid about
his prior arrests and deportations, the consulate could not have
actively misrepresented his attempts to reenter this country as
legal; without that material information, the consulate was unaware
that Treviño was required to obtain the express consent of the
Attorney General before reentering the United States. Treviño does
not suggest nor does the record indicate that the consulate assured
him that the non-immigrant visa was a proxy for the consent of the
Attorney General. Further, as Treviño did not reveal his
background, he could not have reasonably relied on the consulate’s
"misrepresentations" of his actions as legal.
CONCLUSION
For the foregoing reasons, this court AFFIRMS the
conviction of Treviño for illegally reentering the United States.
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