USA. v. Ulibarry

• Decision Date: 07 November 2000
• Docket Number: GRACIDAS-ULIBARR,No. 98-50610,D,98-50610
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1188

231 F.3d 1188 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFREDO GRACIDAS-ULIBARRY, Defendant-Appellant.

No. 98-50610

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted En Banc June 20, 2000

Filed November 7, 2000

[Copyrighted Material Omitted]

Steven F. Hubachek, Julie A. Blair, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant appellant.

Roger W. Haines, Assistant United States Attorney, Larry A. Sebastian, Special Assistant United States Attorney, Criminal Division, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Howard B. Turrentine, Senior District Judge, Presiding. D.C. No. CR-98-00254-HBT

Before: Procter Hug, Jr., Chief Judge, Harry Pregerson, Stephen Reinhardt, Ferdinand F. Fernandez, Thomas G. Nelson, Andrew J. Kleinfeld, Sydney R. Thomas, Susan P. Graber, William A. Fletcher, Raymond C. Fisher and Richard A. Paez, Circuit Judges.

Opinion by Judge Fisher; Concurrence by Judge Fernandez

FISHER, Circuit Judge:

Under 8 U.S.C. S 1326, a previously deported alien who "enters, attempts to enter, or is at any time found in" the United States without the express consent of the Attorney General is subject to a fine and imprisonment for up to two years.¹ In Pena-Cabanillas v. United States, 394 F.2d 785, 788-90 (9th Cir. 1968), we held that illegal reentry into the United States under S 1326 required only a showing of general intent because it was a malum prohibitum regulatory offense and the statute did not otherwise specify an intent requirement for that crime.² The question posed by this case, however, is what level of intent must the government prove to convict an alien of attempted illegal reentry under S 1326? The statutory language for the crime of attempted illegal reentry differs from the language used for an accomplished illegal reentry, because "attempt" is a term that at common law requires proof that the defendant had the specific intent to commit the underlying crime and took some overt act that was a substantial step toward committing that crime. See, e.g., United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1987).

Because we must assume Congress intended to incorporate the well-established common law meaning of "attempt" into S 1326 absent a contrary statutory command, we conclude the crime of attempted illegal reentry into the United States includes the common law element of specific intent.

FACTUAL and PROCEDURAL BACKGROUND

On the morning after he was deported from the Calexico, California, port of entry, Alfredo Gracidas-Ulibarry ("Gracidas") was discovered riding as a passenger in the back seat of a car being driven through the border checkpoint at the San Ysidro, California, port of entry.³ At primary inspection, an immigration inspector asked Gracidas about his citizenship, to which he replied that he was a United States citizen. When, upon further questioning, Gracidas failed to produce identification or to explain how he became a citizen, the inspector became suspicious and referred the car and its occupants to secondary inspection.

At secondary inspection, Gracidas again claimed he was a United States citizen, born in Texas, and gave his name as "Arturo Cabral-Rodriguez." Gracidas said he did not have any identification because his wallet had been stolen two weeks earlier. After an inspector ran several computer checks and informed Gracidas that the computer listed several possible convictions for "Arturo Cabral-Rodriguez," Gracidas admitted he was a Mexican citizen and had been previously deported. The inspectors referred Gracidas to an Immigration and Naturalization Service ("INS") prosecution unit, which ran further computer checks and fingerprint comparisons revealing Gracidas' true identity and that he had been deported just the previous day after having served two years in prison for a felony conviction for sale of a controlled substance.

After being advised of his Miranda rights and deciding to answer questions without the assistance of counsel, Gracidas admitted to the inspectors his true name and that he had given a false name at secondary inspection. Gracidas further confirmed his Mexican citizenship, his deportation the previous day and his prison record. He also admitted knowing that he needed to ask the U.S. government for permission to apply to reenter the United States, but claimed he did not do so because he urgently wanted to see his child, who resides in the United States.

Gracidas was charged with attempted illegal reentry in violation of 8 U.S.C. S 1326, and with falsely and willfully representing himself as a citizen of the United States in violation of 18 U.S.C. S 911.⁴ At trial, Gracidas contended he was asleep when he was driven to the port of entry and thus he never formed the specific intent to reenter the United States illegally. Accordingly, he requested a jury instruction that would have allowed the jury to find him guilty only if it concluded beyond a reasonable doubt that Gracidas "intended to reenter the United States without the consent of the Immigration and Naturalization Service."⁵ The district court rejected the requested instruction and instead instructed the jury that it should convict Gracidas if it found that he "attempted to reenter the United States on or about December 5, 1997," and did not have the requisite permission of the Attorney General. The jury convicted Gracidas on both counts and, on appeal, a majority of a three-member panel of this court upheld the district court's instruction, holding that illegal attempt to reenter under S 1326 requires proof only of general intent. See United States v. Gracidas-Ulibarry, 192 F.3d 926, 929-30 (9th Cir. 1999).

Having reheard this case en banc, and reviewing de novo whether the jury instruction misstated an element of the statutory crime, see United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999), we now conclude that the district court's instruction was erroneous. We hold that the attempt prong of S 1326 incorporates the well-established common law meaning of "attempt" and requires proof of a specific intent to enter illegally. We further conclude, however, that the erroneous instruction was harmless because uncontradicted and overwhelming evidence demonstrated that Gracidas intended to enter the United States without the express consent of the Attorney General.⁶

DISCUSSION

I. Whether Attempted Illegal Reentry Under 8 U.S.C. S 1326 is a General or Specific Intent Crime

A. The Common Law Background of the Term "Attempt"

The common law meaning of "attempt" is the specific intent to "engage in criminal conduct and . . . an overt act which is a substantial step towards committing the crime." Arbelaez, 812 F.2d at 534 (9th Cir. 1987); accord United States v. Bailey, 444 U.S. 394, 405 (1980); Wooldridge v. United States, 237 F. 775, 778-79 (9th Cir. 1916) (collecting common law sources "holding that, to constitute an attempt, there must be the intent to commit a crime and some act done toward its consummation, and that the term `attempt' signifies both an act and the intent with which it is done"); Model Penal Code & Commentaries S 5.01 cmt. at 305 (1985) (noting that Code's definition of attempt "retains the common law requirement of purposive conduct [the Code's term for specific intent] as a prerequisite for attempt liability"); Black's Law Dictionary 123-24 (7th ed. 1999) (" `Every attempt is an act done with intent to commit the offence so attempted.' ") (quoting John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947)); 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law S 6.2, at 18 (1986) ("The crime of attempt . . . [at] common law . . . consists of: (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which . . . goes beyond mere preparation."); Rollin M. Perkins & Ronald N. Boyce, Criminal Law S 3.A.7, at 637 (3d ed. 1982) ("[A]n attempt to commit any crime requires a specific intent to commit that particular offense."); 4 Charles E. Torcia, Wharton's Criminal Law S 693, at 580 (15th ed. 1996) ("At common law, a person commits an attempt when, with intent to commit a particular crime, he performs an act which tends toward but falls short of consummation of such crime."). This accepted common law definition is the basis for the doctrine that the crime of attempt requires a showing of " `specific intent even if the crime attempted does not.' " United States v. Hadley, 918 F.2d 848, 853 (9th Cir. 1990) (quoting United States v. Sneezer, 900 F.2d 177, 179 (9th Cir. 1990)); accord 4 Torcia, supra, S 695, at 591-97.

Accordingly, we have held that Congress' use of the term "attempts" in a criminal statute manifested a requirement of specific intent to commit the crime attempted, even when the statute did not contain an explicit intent requirement. For example, we held in Sneezer that a conviction for attempted sexual abuse under 18 U.S.C. S 2242 -which imposes a prison sentence of up to 20 years upon one who knowingly causes another to engage in a sexual act against his or her will "or attempts to do so" -required a finding of specific intent to commit the crime even though the statute "itself d[id] not appear to include any element of specific intent. " 900 F.2d at 179; accord Hadley, 918 F.2d at 853 (holding that attempted aggravated sexual abuse under 18 U.S.C. S 2241, which imposes a penalty upon one who uses force or threat to cause another to engage in a sexual act "or attempts to do so," required a showing of specific intent even though the statute contained no express intent requirement); Wooldridge, 237 F. at 776, 778-79 (construing statute imposing a criminal penalty if any person "attempts to commit any crime, . . . when no other provision is made by law for...