U.S.A v. Hernandez

• Decision Date: 17 August 1999
• Citation: 189 F.3d 785
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTURO HERNANDEZ, Defendant-Appellant. 97-30201
• Court: U.S. Court of Appeals — Ninth Circuit

Page 785

189 F.3d 785 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARTURO HERNANDEZ, Defendant-Appellant.

97-30201

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 7, 1999

Filed August 17, 1999

Peter Offenbecher, Assistant Federal Public Defender, Seattle, Washington, for the defendant-appellant.

Holly E. Morris, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-96-00649-TSZ.

Before: Donald P. Lay,¹ Robert R. Beezer, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge:

We are faced here with the task of reconciling an immigration statute providing venue where a defendant was "apprehended" with the constitutional guarantee that a defendant must be tried where the crime was committed. Specifically, we must decide where the crime was committed in the case of a deported alien prosecuted for being "found in" the United States, a violation of 8 U.S.C. S 1326. This analysis in turn is determinative of whether venue was proper. We have jurisdiction under 28 U.S.C. S 1291, and we reverse and remand for a transfer of venue. We hold that prosecution in the Western District of Washington was improper because the defendant committed and completed the offense of being "found in" the United States in Oregon.

BACKGROUND

The essential facts are undisputed. On September 10, 1996, Arturo Hernandez was arrested in Portland, Oregon for a traffic violation. While Hernandez was in jail in Multnomah County, Oregon, an agent of the Immigration and naturalization Service ("INS") interviewed Hernandez, identified him, and determined that he was in the United States illegally and subject to prosecution under 8 U.S.C. S 1326. The United States concedes that Hernandez was "found in" the United States in Oregon.

The INS agent in Portland did not present the case to the United States Attorney for the District of Oregon. Instead, the agent recommended that criminal prosecution under 8 U.S.C. S 1326 be initiated in Washington because of an outstanding Washington warrant for the arrest of Hernandez based on a supervised release violation. Hernandez waived extradition, and state authorities then transported him from Oregon to Washington, where he was sentenced to a short term in a Washington state prison. In October 1996, while Hernandez was serving his state sentence in Washington, another INS agent interviewed Hernandez, determined that he was subject to prosecution under 8 U.S.C. S 1326, and placed a detainer on him. Upon completion of his state sentence, the INS transported Hernandez to the INS holding facility in Seattle, and referred the matter to the United States Attorney's Office for the Western District of Washington.

The superseding indictment filed in the Western District of Washington charged that Hernandez violated 8 U.S.C.S 1326 because "[o]n or about November 13, 1996, at Seattle, within the Western District of Washington, [Hernandez ] . . . was found in the United States without the express consent of the Attorney General." The indictment alleged violations of sections 1326(a) (illegal re-entry by a deported alien), 1326(b)(1) (illegal re-entry by a felon), and 1326(b)(2) (illegal re-entry by an aggravated felon).

Hernandez moved to dismiss the indictment for improper venue or, in the alternative, to transfer venue to the District of Oregon. The district court denied the motion and conducted a bench trial pursuant to a stipulation of facts. The parties stipulated to all of the relevant facts: Hernandez's Mexican citizenship, his prior felony conviction for possession of cocaine, his deportation, his re-entry into the United States without permission, the INS's discovery of him in Oregon, and the State of Washington's transportation of him from Oregon to Washington. At trial, the defense renewed its motion for dismissal on the grounds of improper venue and moved for a judgment of acquittal. The district court denied both motions and found the defendant guilty on count one, under 8 U.S.C. S 1326(a) and 1326(b)(1). The government dismissed the remaining two counts. Hernandez was sentenced to thirty-five months of imprisonment and three years of supervised release.

DISCUSSION

I. The Constitutional and Statutory Framework

We address the existence of venue as a question of law reviewed de novo. United States v. Angotti, 105 F.3d 539, 541 (9th Cir. 1997). As the Supreme Court reminds us, "[q]uestions of venue in criminal cases . . . are not merely matters of formal legal procedure. They raise deep issues of public policy . . . ." United States v. Johnson, 323 U.S. 273, 276 (1944). Indeed, the question of venue in a criminal case extends beyond public policy to specific expression in the Constitution. The right to be tried where the crime was allegedly committed is protected twice in the Constitution. Article III, section 2 provides that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed . . . ." Under the Sixth Amendment, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . ." Rule 18 of the Federal Rules of Criminal Procedure reiterates the constitutional protection: "prosecution shall be had in a district in which the offense was committed." The touchstone in each of these provisions is the place where the crime was committed.

To determine venue, we must examine the constitutional question of where the crime was committed in light of two venue provisions enacted by Congress. The specific venue statute applicable to violations of 8 U.S.C. S 1326 provides:

Notwithstanding any other law, such prosecutions or suits [under this subchapter] may be instituted at any place in the United States at which the violation may occur or at which the person charged with a violation under section 1325 or 1326 of this title may be apprehended.

8 U.S.C. S 1329. Also relevant is the venue statute for continuing offenses, which provides that "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." 18 U.S.C. S 3237. The specific issue presented--where venue lies if the government identifies a defendant as subject to prosecution under S 1326 in one judicial district, but facilitates transfer to another district and then chooses to prosecute the defendant in that judicial district--has not been addressed in any published federal court of appeals decision.

II. Analysis of "Found in" under 8 U.S.C. S 1326

With this framework in mind, we turn to the parties' arguments about the proper venue for prosecution in this case. Hernandez argues that venue in the Western District of Washington was unconstitutional because he committed and completed the offense of being "found in" the United States in Oregon. The government concedes that Hernandez was "found in" the United States in Oregon, but argues that Hernandez was also "found in" the United States in Washington because section 1326 is a continuing offense. The government argues that the defendant's presence in a judicial district, for any reason, constitutes a violation of section 1326, permitting the government to prosecute in that venue. Alternatively, the government contends that venue in the Western District of Washington was proper under the venue statute, 8 U.S.C. S 1329, because the government "apprehended " Hernandez in Washington.

The Supreme Court recently provided guidance on how to determine where a crime was committed for venue purposes:

[T]he locus delicti [of the charged offense ] must be determined from the nature of the crime alleged and the location of the act or acts constituting it. In per forming this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the com mission of the criminal acts.

United States v. Rodriguez-Moreno, _______ U.S. _______, 119 S. Ct. 1239, 1242-43 (1999) (internal quotation marks and citations omitted). In identifying the nature of the crime alleged, we look first at the language of the statute under which the defendant was charged. See id. at 1243. Prior to Rodriguez-Moreno, some federal courts looked exclusively at the verbs in the statute in determining the conduct constituting the offense, but in Rodriguez-Moreno the Supreme Court cautioned that "[w]hile the `verb test' certainly has value as an interpretive tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language." Id.

Following the Supreme Court's direction, we turn to the language of the statute under which Hernandez was charged. Section 1326 provides:

(a) In general Subject to subsection (b) of this section, any alien who

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and there after

(2) enters, attempts to enter, or is at any time found in, the United States . . . shall be fined under Title 18, or imprisoned not more than 2 years, or both.

(b) Criminal penalties for reentry of certain removed aliens

Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than 10 years, or both;

(2)...