U.S. v. Martinez-Morel, MARTINEZ-MORE

• Decision Date: 18 July 1997
• Docket Number: D,No. 96-6234,MARTINEZ-MORE,96-6234
• Parties: 97 CJ C.A.R. 1241 UNITED STATES of America, Plaintiff-Appellee, v. Raulefendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 710

118 F.3d 710

97 CJ C.A.R. 1241

UNITED STATES of America, Plaintiff-Appellee, v. Raul MARTINEZ-MOREL, Defendant-Appellant.

No. 96-6234.

United States Court of Appeals Tenth Circuit.

July 18, 1997.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

David Walling, Assistant United States Attorney, Oklahoma City, OK (Patrick M. Ryan, United States Attorney, Oklahoma City, OK, and Mark A. Yancey, Assistant United States Attorney, Oklahoma City, OK, with him on the brief), for Plaintiff-Appellee.

Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Raul Martinez-Morel (Martinez) was convicted of illegally reentering the United States after being deported, pursuant to 8 U.S.C. § 1326(a) (1994 & Supp.1997). On appeal, Martinez claims that the district court erred in excluding evidence of his belief that he was not deported. He also asks the Tenth Circuit to reconsider, in light of the Supreme Court's decisions in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) and Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), circuit precedent holding that the only mens rea the government must prove to obtain a conviction under section 1326 is the intent to enter the country.

We affirm the defendant's conviction. The district court did not abuse its discretion in excluding evidence of the defendant's state of mind with regard to his deportation, as such evidence is irrelevant to a conviction under section 1326. Further, we reject the defendant's argument that X-Citement Video or Staples require that the government prove a mens rea for each element of the crime to obtain a conviction under section 1326.

BACKGROUND

On May 2, 1995, Sergeant Michael Pacheco of the Oklahoma City Police Department was on a routine patrol when he passed a 1978 Plymouth with a smashed windshield. Officer Pacheco stopped the car which was driven by defendant Martinez. Martinez could not produce a valid driver's license or proof of insurance, and only provided Officer Pacheco with a resident alien card that was later determined to be false. After running a computer check and discovering that Martinez's driving privileges had been suspended, Pacheco arrested Martinez.

Subsequent to his arrest, the Immigration and Naturalization Service (INS) began an investigation of Martinez and learned that he had been deported to Mexico in 1993 and that he had not received permission from the Attorney General to reenter the United States. Martinez was then charged with illegally reentering the United States after being deported, pursuant to 8 U.S.C. § 1326(a). ¹

At the trial, the government introduced evidence of Martinez's prior deportation. Among that evidence was an order to show cause ² issued in 1992, alleging that: (1) Martinez was not a citizen of the United States; (2) he was a citizen of Mexico; and (3) he entered the United States without being inspected by an immigration officer. The government also introduced evidence of a deportation hearing that resulted in an order to deport Martinez. Martinez was served with a warrant of deportation and a warning letter advising him of the penalties for reentering the United States without first obtaining permission from the Attorney General. He was then taken from San Ysidro, California, to authorities on the Mexican side of the border.

During the government's case-in-chief, the defense sought to admit into evidence an 1-274 form. The form was given to Martinez on March 5, 1992, the date that he was initially contacted by the INS. It informed him of his right to a deportation hearing, to request to voluntarily depart, ³ and to be represented by counsel. The defense argued that the form would establish that the defendant believed that he had not been deported, but rather that he had voluntarily departed the country. The defense urged that such evidence would corroborate testimony by the defendant that he believed he had voluntarily departed the country. The court excluded the evidence.

After the government rested, the defense sought to introduce the testimony of the defendant that he thought he had voluntarily departed the country, and that, in fact, he was not deported. The defense again offered to admit the 1-274 form. The court excluded the testimony and the document. The defense then rested without putting on any evidence.

The court gave the jury the following instruction on the elements of the offense:

In order for the defendant, Raul Martinez-Morel, to be found guilty of violating Section 1326 of Title 8, United States Code, the government must prove the following four elements beyond a reasonable doubt:

First: the defendant is an alien;

Second: who was arrested and deported;

Third: and who thereafter voluntarily and knowingly was found in the United States;

Fourth: without the permission of the Attorney General.

Martinez objected to this instruction, and to the court's rejection of an alternative instruction that required the government to prove that he knowingly was deported and reentered knowing that he did not have the permission of the Attorney General. The defendant acknowledges that under Tenth Circuit precedent the government is not required to prove a mens rea for those elements of section 1326. However, he submits that recent Supreme Court authority on issues of mens rea calls into question the validity of that Tenth Circuit precedent.

We reject Martinez's arguments. Neither X-Citement Video nor Staples requires the government to prove a mens rea for each element of the offense of illegal reentry after deportation, pursuant to 8 U.S.C. § 1326. That being the case, the district court did not err in refusing to give the requested instruction, or in excluding evidence of Martinez's belief that he was not deported.

ANALYSIS

A. Exclusion of Evidence

"The decision to admit or exclude evidence is within the sound discretion of the trial court, and this court will not find an abuse of discretion unless we develop a definite and firm conviction that the trial court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Levine, 970 F.2d 681, 688 (10th Cir.1992). Martinez argues that the district court erred in excluding the 1-274 form and his proffered testimony that he did not believe he was deported and that, in fact, he was not deported. ⁴

The district court did not abuse its discretion in excluding documentary and testimonial evidence of the defendant's belief that he was not deported. Such evidence was not relevant to a conviction under 8 U.S.C. § 1326(a) because that statute does not require the government to prove that the defendant knew that he was deported. Rather, to obtain a conviction under section 1326(a), the government must prove only that the defendant 1) is an alien; 2) who was arrested and deported; and 3) who thereafter voluntarily reentered, attempted to reenter, or was found in the United States; 4) without the permission of the Attorney General. United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir.1994). The only intent the government must prove is the "general intent to do the prohibited act, to-wit enter." United States v. Miranda-Enriquez, 842 F.2d 1211, 1212 (10th Cir.1988) (quoting Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir.1968)).

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401 (emphasis added). Since the defendant's belief about whether he was deported is not "of consequence to the determination of the action," the court was correct to exclude it. In Miranda-Enriquez, we held that testimony about a defendant's mistaken belief that he had lawfully entered the country was properly excluded in a prosecution under section 1326, because specific criminal intent does not play a part in the crime charged. 842 F.2d at 1213. Accord United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1109, 137 L.Ed.2d 310 (1997) (majority of circuits "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"); United States v. Leon-Leon, 35 F.3d 1428, 1432-33 (9th Cir.1994) (defendant's reasonable belief that he entered the United States legally is irrelevant to prosecution under section 1326 because illegal reentry is not a specific intent crime). But see United States v. Anton, 683 F.2d 1011, 1018 (7th Cir.1982) (defendant's belief that he entered country legally with the consent of the Attorney General constitutes a defense to charge under section 1326).

In his brief on appeal, the defendant claims that he also was deprived of the opportunity to present evidence that he actually was not deported. However, at trial, the defendant failed to make an offer of proof of any such evidence. On at least two occasions, the district court asked the defendant what the substance of his testimony would be and the purpose for which he would introduce that testimony and the 1-274 form. The defendant's answers were contradictory and confused. When the defendant's attorney, William P. Earley, first offered the 1-274 form into evidence, he explained its relevance as follows:

One of the essential elements of this offense is that the Defendant was deported and Mr. Martinez will testify that he felt that he had voluntarily departed, was not deported.... This document is in his file. I'm going to ask the agent--obviously he wasn't allowed to voluntarily depart. But I think it is important for the jury to know that Mr. Martinez signed this piece of paper where he agreed to voluntarily...