U.S. v. Canals-Jimenez

• Decision Date: 04 October 1991
• Docket Number: CANALS-JIMENE,No. 90-5845,D,90-5845
• Citation: 943 F.2d 1284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramonefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1284

943 F.2d 1284

UNITED STATES of America, Plaintiff-Appellee, v. Juan Ramon CANALS-JIMENEZ, Defendant-Appellant.

No. 90-5845.

United States Court of Appeals Eleventh Circuit.

Oct. 4, 1991.

Alison M. Igoe, Federal Public Defender, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Kerry S. Baron, Ft. Lauderdale, Fla., Linda Collins Hertz, Anne Ruth Schultz, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, DUBINA, Circuit Judge, and WILLIAMS ¹, Senior Circuit Judge.

JERRE S. WILLIAMS, Senior Circuit Judge:

Appellant Juan Ramon Canals-Jiminez was charged with being "found in" the United States after deportation without the Attorney General's consent in violation of 8 U.S.C. § 1326, a provision of the Immigration and Nationality Act. Appellant was found guilty, and the judge sentenced him to fourteen months in jail and a fifty dollar assessment.

Appellant asserts three bases for reversal of the district court's findings: (1) The government failed to prove beyond a reasonable doubt that the defendant was "found in" the United States in violation of the law; (2) The difference between the offense charged in the indictment and the proof offered by the government at trial constituted a fatal variance; and (3) the trial court abused its discretion when it refused to instruct the jury that an alien who has been placed in exclusion proceedings cannot be "found in" the United States. Inasmuch as we reverse the trial court's decision due to the government's failure to prove beyond a reasonable doubt that the defendant was "found in" the United States, we find it unnecessary to address the other two contentions.

I. FACTS

After conviction for distribution of cocaine, Canals was deported from the United States on November 3, 1989. Thereafter, on April 20, 1990 Canals arrived in Miami from Santa Domingo, Dominican Republic, on an American Airlines flight. After deboarding the plane and proceeding past several shops and restaurants, he approached Immigration and Naturalization Service ("INS") inspector Henry Langlois. When Canals presented his passport, inspector Langlois noticed that it contained an "addit" stamp which is tantamount to a temporary green card granting residence status. Because of the high number of forgeries of such stamps, Langlois referred Canals to secondary examination.

Inspector Long D. Kaiser, who was assigned the secondary inspection area, took a sworn statement from Canals. Canals explained that he was a former resident of the United States who had been deported. Canals further explained that he was not attempting to come to the United States but was on his way to Montreal for pleasure, and that his flight only stopped in the United States. After the interview, Kaiser escorted Canals back to a waiting room. Kaiser then approached Senior INS inspector Craig Robinson, who authorized Canals' arrest.

Several days later, Robinson interviewed Canals, who had remained in INS custody. Contrary to his prior statement, Canals told Robinson that he was unemployed and was going to Canada to find work. At no time did Canals mention that he was en route to Montreal to meet his parents and son, as he would later claim at trial.

After the interview, Robinson examined Canals' personal effects. Canals had brought with him nearly $600 in United States currency and various items of clothing. He also had a round trip airline ticket, leaving Santa Domingo on April 20, 1990 and arriving in Miami that same day and then leaving Miami for Santa Domingo on April 24, 1990.

On May 1, 1990, a grand jury returned a one count indictment charging Juan Canals, having been previously deported to the Dominican Republic on or about November 3, 1989, with being "found in" the United States knowingly and unlawfully and without the Attorney General's consent in violation of 8 U.S.C. § 1326(a).

In his defense at trial, Canals presented evidence showing that although he had no ticket, he had made round trip reservations from Miami to Montreal on Air Canada. He also offered proof that no airline offered nonstop service from Santa Domingo to Montreal. Canals' mother testified that she, her husband, and Canals' son had planned a trip to Montreal concurrent with Canals' proposed visit.

At the close of the trial, Canals requested the court to instruct the jury on the legal definition of the term "found in" as used in 8 U.S.C. § 1326, but the trial judge refused. The trial judge again refused a similar request to give this instruction after the jury sent the following note:

We need direction from Judge Nesbitt concerning the following: If the defendant knew he had to land in the U.S. to buy a ticket to go on to Canada, but if his intent was to go on to Canada how does that answer the question in the indictment of being "found in the U.S. knowingly and unlawfully?"

Instead the court referred the jury to the court's instructions as previously given. ² The jury found Canals guilty as charged.

II. STATUTORY CONSTRUCTION

Because there are no factual issues involved, the resolution of this dispute turns on statutory construction. There is no dispute that Canals was physically within the boundaries of the United States. The issue is whether Canals was, as he was charged in the indictment, "found in" the United States in violation of 8 U.S.C. § 1326(a). This statute provides in pertinent part:

[A]ny 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, 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.

(Emphasis added). Canals' contention, with which we agree, is that "found in" must have a different meaning from "enters" and "attempts to enter." Canals might have been guilty of attempting to enter, but he was not guilty of being found in the United States.

A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage. See Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 970-71 (5th Cir.1981); Meltzer v. Board of Public Instruction of Orange County, Florida, 548 F.2d 559, 578 (5th Cir.1977), aff'd in part, rev'd in part 577 F.2d 311 (5th Cir.1978) (en banc), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979). In interpreting a different section of the Immigration and Nationality Act of 1952, the Supreme Court applied this elemental rule when it stated, "The cardinal principle of statutory construction is to save and not to destroy. It is our duty to give effect, if possible to every clause and word of a statute rather than to emasculate an entire section, as the Government's interpretation requires." United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615 (1955) (citations omitted).

In applying the analysis to the statute at hand, we determine that the phrase "found in" must have a different meaning than the word "enters." Our construction of the statute is in accord with the legislative history as discussed in United States v. DiSantillo, 615 F.2d 128 (3rd Cir.1980). When Congress reenacted the statute in 1952, it added the term "found," but it did not remove the term "enters." This indicates that Congress intended "found" to have a different meaning than "enters;" otherwise Congress could have completely removed "enters" from the statute and made it a crime any time an alien "attempts to enter" or is "found in the United States." Id. at 135.

This court previously faced a similar issue in construing Section 1326 and reached a similar result in United States v. Wong Kim Bo, 472 F.2d 720 (5th Cir.1972). We had to determine whether the words "arrested and" in Section 1326 were meaningless. We stated:

The Immigration and Nationality Act represents the final product of a most intensive and searching investigation and study over a three year period. It would be absurd for this court to think that Congress inadvertently left 'intent' out of Section 1326. It would be similarly absurd for this court to think that Congress left the words 'arrest and' in Section 1326 inadvertently.

Id. at 722 (citations omitted) (emphasis in original). Using this logic, "it would be similarly absurd" for us to now think Congress inadvertently left the term "enters" in Section 1326.

In order for "found in" and "enters" to have different meanings, thus to avoid "enters" being a mere redundancy, "found in" must apply to aliens who have entered surreptitiously, bypassing a recognized immigration port of entry. The phrase "found in" is synonymous with "discovered in." Any party who voluntarily approaches an INS station cannot be said to have been found or discovered in the United States. Any alien who seeks admission through a recognized immigration port of entry might be guilty of entering or attempting to enter the United States but not of being found in the United States. Congress added the phrase "found in" to alleviate the problem of prosecuting aliens who enter in some illegal manner. U.S. v. DiSantillo, 615 F.2d at 135.

Under the interpretation urged by the government, Canals was "in" the United States and thus subject to being "found in" the United States the moment he stepped off the airplane. The law is otherwise. In determining whether an alien detained at Ellis Island pending deportation proceedings was "in" the...