U.S. v. Diaz-Diaz, DIAZ-DIA

• Decision Date: 02 February 1998
• Docket Number: A,Nos. 97-1287,97-1491,DIAZ-DIA,s. 97-1287
• Citation: 135 F.3d 572
• Parties: UNITED STATES of America, Appellee, v. Fernandoppellant. UNITED STATES of America, Appellant, v. Fernandoppellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 572

135 F.3d 572

UNITED STATES of America, Appellee, v. Fernando DIAZ-DIAZ, Appellant.

UNITED STATES of America, Appellant, v. Fernando DIAZ-DIAZ, Appellee.

Nos. 97-1287, 97-1491.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 24, 1997.

Decided Feb. 2, 1998.

Scott F. Tilsen, Assistant Federal Public Defender, Minneapolis, MN, argued, for appellant.

Kenneth W. Saffold, Assistant U.S. Attorney, Minneapolis, MN, argued, for appellee.

Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Fernando Diaz-Diaz appeals from the judgment of conviction entered by the district court ¹ following a jury verdict finding Diaz-Diaz guilty of the offense of unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326. The United States cross-appeals from the sentence imposed by the district court. We affirm.

I.

Fernando Diaz-Diaz is a citizen of the Republic of Mexico who has made repeated efforts to reside in the United States illegally. In 1982, Diaz-Diaz was first discovered in the United States and was ordered to depart voluntarily. On October 22, 1992, Diaz-Diaz was deported to Mexico from El Paso, Texas. In August of 1993, he was again voluntarily returned to Mexico. In October of 1995, he was deported once more, this time from Laredo, Texas.

During his periods of illegal residency in the United States, Diaz-Diaz accumulated a substantial criminal history. In 1978, Diaz-Diaz was convicted of resisting a peace officer in River Forest, Illinois. In 1985, he was convicted of possession of a stolen motor vehicle in Arlington Heights, Illinois, and was subsequently sentenced for violations of his probation in connection with that incident. In 1990, Diaz-Diaz was arrested in Indianapolis, Indiana, and charged with rape, criminal confinement, and battery for an incident in which he dragged a woman into an abandoned house and forced her to have sexual intercourse with him. A plea agreement resulted in his conviction for sexual battery.

By 1992, Diaz-Diaz was residing in Minnesota, where his criminal activities continued. In June of that year, Diaz-Diaz was convicted of theft. In March of 1994, he was convicted of consuming alcohol in a public place. In July of 1995, Diaz-Diaz sold 8.3 grams of marijuana to an undercover police officer. During his arrest, Diaz-Diaz informed police that he had a pound of marijuana at home and assured them that he would be out selling the drug again within a few hours. Eventually, he was convicted of the sale of a controlled substance. Finally, in February of 1996, police were called to a residence in Minneapolis to investigate a murder. Witnesses reported that Diaz-Diaz had stabbed the victim in the abdomen. The police officers found Diaz-Diaz unconscious and slumped in a chair in the basement. One of his hands was stained with blood, and blood was splattered on the chair, walls, and floor. Diaz-Diaz was arrested and charged with second degree murder. The charges were dismissed, however, after prosecutors learned that the witnesses had been deported and could not be located.

Soon after, in July of 1996, Diaz-Diaz was indicted in district court on one count of illegal reentry in violation of 8 U.S.C. § 1326. Specifically, the indictment charged Diaz-Diaz as follows:

Count I

On or about June 11, 1996, in the State and District of Minnesota, the defendant, Fernando Diaz-Diaz, an alien who had previously been arrested and deported two times from the United States pursuant to law, knowingly and unlawfully entered the United States, having not obtained the consent of the Attorney General of the United States for reapplication, in violation of 8 U.S.C. 1326.

United States v. Fernando Diaz-Diaz, No. 3-96-87, Indictment (D. Minn. filed July 17, 1996).

Prior to trial, Diaz-Diaz proposed a jury instruction regarding venue that would have informed the jury that the government must prove by a preponderance of the evidence that the offense charged "was begun, continued, or completed" in the district of Minnesota. This instruction was rejected. At the close of the government's case, Diaz-Diaz moved for a judgment of acquittal, contending that the government had not established venue. This motion was denied. After the jury returned a guilty verdict, Diaz-Diaz renewed his motion for a judgment of acquittal and filed, in the alternative, a motion for a new trial, both of which the district court denied.

With a total offense level of 24 and a category III criminal history, Diaz-Diaz faced a range of imprisonment of 63 to 78 months under the applicable sentencing guidelines. For reasons set forth later in this opinion, the district court sentenced Diaz-Diaz to 10 months' imprisonment, 3 years of supervised release, $50 special assessment, and mandatory drug testing as set forth by 18 U.S.C. § 3608.

Although Diaz-Diaz has completed his sentence and has been deported once again, he appeals, challenging the sufficiency of the evidence and contending that the district court erred in rejecting his proposed instruction on the issue of venue.

II.

Section 1326 of Title 8 makes it a crime for a previously deported alien to reenter the United States without the permission of the Attorney General. See United States v. Gomez, 38 F.3d 1031, 1033 (8th Cir.1994). ² "This offense may be committed in three distinct manners: a previously deported alien may violate section 1326 by, without the Attorney General's permission, (1) entering, (2) attempting to enter, or (3) being found in the United States." Id. at 1033-34. Entry and attempted entry generally occur when an illegal alien enters or attempts to enter through a recognized port of entry. See id. In contrast, being found in the United States typically, though not necessarily, involves a surreptitious entry by the alien and is a continuing violation that is not complete until he is discovered by immigration authorities. See id. at 1034-35; United States v. Ortiz-Villegas, 49 F.3d 1435, 1436 (9th Cir.1995) (surreptitious entry not prerequisite to prosecution for being deported alien found in United States); United States v. Gay, 7 F.3d 200, 202 (11th Cir.1993) (deported alien could be convicted of being "found in" United States regardless of surreptitious entry).

Diaz-Diaz first challenges the sufficiency of the evidence. Because he was discovered in Minnesota, rather than being apprehended at a recognized port of entry, and because it is not known where or when he reentered the United States, Diaz-Diaz contends that he can only be considered as having been "found in" the United States and that he should have been so charged. Instead, the indictment alleged that Diaz-Diaz "entered" the United States "on or about June 11, 1996, in the State and district of Minnesota." Diaz-Diaz thus argues that the government did not prove the elements of the offense as charged in the indictment, proving only that he was apprehended in Minnesota and not that he entered in Minnesota.

Although we agree with Diaz-Diaz that the record contains no evidence that his reentry into the United States occurred in Minnesota, we are also satisfied that the indictment was sufficient to charge him with the offense of illegal reentry. An indictment is sufficient if it: (1) contains the elements of the charged offense and fairly informs the defendant of the charge against which he must defend; and (2) enables him to plead double jeopardy as a bar to further prosecution. See United States v. Pemberton, 121 F.3d 1157, 1169 (8th Cir.1997); United States v. Dolan, 120 F.3d 856, 864 (8th Cir.1997); Fed.R.Crim.P. 7(c)(1). Unless an indictment is so defective that by no reasonable construction can it be said to charge the offense for which the defendant was convicted, it will be upheld. See Pemberton, 121 F.3d at 1169. When the issue is whether an element of an offense has been omitted from an indictment, moreover, our inquiry is whether the omission is one of substance or one of form only. See id.

In Pemberton, we upheld the sufficiency of an indictment that neglected to allege an agency relationship between the defendant and the Leech Lake Band of Chippewa Indians, an element of the offense outlined in the statute under which the defendant was charged. ³ See id. In so doing, we stated that a citation in the indictment to the applicable statute, while not in itself sufficient to supply an element of a charged offense omitted by the grand jury, see United States v. Camp, 541 F.2d 737, 740 (8th Cir.1976), when considered in combination with the other allegations in the indictment as a whole, was adequate under the circumstances to have charged the defendant with the offense for which he was convicted. See Pemberton, 121 F.3d at 1169. See also United States v. Forbes, 16 F.3d 1294, 1297 (1st Cir.1994); United States v. Campos-Asencio, 822 F.2d 506, 508 (5th Cir.1987).

The nature of the difficulty here, as in Pemberton, is "one of form rather than substance." 121 F.3d at 1169. Although the indictment might well have stated that Diaz-Diaz had been "found in" this country, we believe that as worded the indictment was adequate to have placed Diaz-Diaz on notice of the specific crime with which he had been charged. First, as in Pemberton, the indictment specifically referenced the appropriate statute, 8 U.S.C. § 1326, which contains the "found in" language that is missing from the charge. Second, the text of section 1326 was included within the instructions provided to the jury. Instruction number fourteen, moreover, which identified the essential elements to be proved, instructed the jury to determine not whether Diaz-Diaz illegally "entered in Minnesota" or was "found," but whether he had "reentered the United States."

Similarly, the indictment stated that Diaz-Diaz "knowingly and unlawfully entered the United States." As the Eleventh Circuit has noted, the fact that an illegal entry is "capable, in and of itself, of constituting a...