U.S. v. Wittgenstein, 97-2379

• Citation: 163 F.3d 1164
• Decision Date: 16 December 1998
• Docket Number: No. 97-2379,97-2379
• Parties: 1999 CJ C.A.R. 1333 UNITED STATES of America, Plaintiff-Appellee, v. Herta WITTGENSTEIN, also known as Herta Hilscher, also known as Herta Christiensen, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1164

163 F.3d 1164

1999 CJ C.A.R. 1333

UNITED STATES of America, Plaintiff-Appellee, v. Herta WITTGENSTEIN, also known as Herta Hilscher, also known as Herta Christiensen, Defendant-Appellant.

No. 97-2379.

United States Court of Appeals Tenth Circuit.

Dec. 16, 1998.

John V. Butcher, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Laura Fashing, Assistant United States Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before TACHA, BALDOCK, and KELLY, Circuit Judges.

TACHA, Circuit Judge.

Defendant-Appellant Herta Wittgenstein appeals from her conviction of having been found in the United States without permission of the Attorney General after prior arrest and deportation in violation of 8 U.S.C. § 1326 (1994). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

Ms. Wittgenstein, a native and citizen of Austria, has resided in the United States since August 13, 1964, when she entered as a non-immigrant visitor. For the bulk of these years, she has lived here illegally. Not until April 13, 1992, did an immigration judge grant her status as a "lawful permanent resident." Three years later, on April 19, 1995, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause why Ms. Wittgenstein should not be deported as an "alien who at any time after entry is convicted of two or more crimes involving moral turpitude...." 8 U.S.C. § 1251(a)(4) (1994). Ms. Wittgenstein had been convicted of a fraud involving more than $2500 and attempted tax evasion under New Mexico state law. See N.M. Stat. Ann. § 7-1-72; Wittgenstein v. INS, 124 F.3d 1244, 1246 (10th Cir.1997). Shortly after an INS agent served Ms. Wittgenstein with the Order to Show Cause, she left the country, attempting to reenter the United States through Atlanta, Georgia, on May 16, 1995. At the Atlanta port of entry, an INS inspector noted that Ms. Wittgenstein was inadmissible into the United States. However, he "paroled" her into the country for "deferred inspection" at the Albuquerque, New Mexico INS office. When she presented herself in Albuquerque, Agent Godshall affirmed that he wrote "admitted" on Ms. Wittgenstein's Form I-94 (Departure Record).

After Ms. Wittgenstein returned to the United States, the deportation hearing resumed, and on January 26, 1996, the immigration judge ordered Ms. Wittgenstein deported. The INS issued a Warrant of Deportation the same day. On February 5, 1996, Ms. Wittgenstein filed a motion for reconsideration. Under INS regulations, the motion did not stay her deportation.

On February 15, 1996, INS agents, along with a Santa Fe County deputy sheriff, went to Ms. Wittgenstein's home to execute the Warrant of Deportation. When she answered the door, an INS agent stepped inside, handcuffed her, told her he had a Warrant of Deportation for her arrest, and showed her the warrant. Ms. Wittgenstein protested that she had a motion pending before the immigration court and requested removal of the handcuffs so that she could call the judge. The INS agent obliged. Ultimately, Ms. Wittgenstein received a telephonic hearing before the immigration judge on her motion to reconsider. During the telephonic hearing, the immigration judge denied Ms. Wittgenstein's motion and shortly thereafter faxed her written decision to Ms. Wittgenstein's residence.

Ms. Wittgenstein requested permission to shower and change her clothes before the agents took her into custody. Again, the INS agents obliged. Eventually, the INS agents no longer heard movement in the bedroom. They knocked on the door and received no response. After ascertaining that Ms. Wittgenstein was no longer in the bedroom, the agents searched the entire house for her to no avail. In one declaration, Ms. Wittgenstein maintained that she had hid in her bedroom closet until the agents left. In another affidavit, she claimed that she retreated to a room on the lower level until she felt calmer and to her "astonishment" the INS agents had left when she returned upstairs. The INS agents had no further contact with Ms. Wittgenstein until March 31, 1997, when they took her into custody for violating 8 U.S.C. § 1326 (1994).

Although the INS agents did not find Ms. Wittgenstein until the end of March 1997, they periodically attempted to locate her. In January 1997, responding to an inquiry by Albuquerque INS Special Agent Godshall, Atlanta INS Special Agent Holth investigated the possibility that defendant had flown from London, England to Atlanta, Georgia on January 25, 1997. The investigation revealed that an individual by the name of Herta Wittgenstein had made that flight and continued on to Albuquerque. No one with that name, however, had passed through United States Customs that day. Instead, someone using the name Herta Christiensen, with the same date of birth and nationality as Ms. Wittgenstein, and coming from the same flight, presented herself to Customs. Agent Holth relayed this information, as well as information that Ms. Wittgenstein had lost something during the course of the flight that Delta Airlines later sent to her home in Santa Fe via Federal Express, to the INS office in Albuquerque on January 29, 1997.

On February 13, 1997, INS Special Agent Lee requested a search warrant for Ms. Wittgenstein's home in Santa Fe. The affidavit in support of the search warrant stated that Ms. Wittgenstein, a native and citizen of Austria, was illegally in the United States and that an agent of the New Mexico Attorney General's office had recently seen her in Santa Fe. Agent Lee also averred that he had passed her home and saw a Mercedes Benz registered to her parked at the residence. A United States Magistrate issued a warrant to search Ms. Wittgenstein's home for her and documents relating to her alienage or citizenship. Several INS agents and two Santa Fe Deputy Sheriffs executed the warrant on February 14, 1997. Although Ms. Wittgenstein was not at home, the officers seized several documents indicating that she had left the United States on December 23, 1997, and returned on January 25, 1997.

On March 31, 1997, in response to tip from a friend of Ms. Wittgenstein's, Sandoval County Deputy Sheriff Wiese arrested the defendant in Regina, New Mexico. Defendant requested that Deputy Wiese return to the house where the officers arrested her so that she could get her shoulder bag. Officer Wiese complied with this request. At the Cuba, New Mexico substation, Deputy Wiese searched the bag for weapons, removing two pocket knives. When two INS agents arrived an hour later, Deputy Wiese gave them Ms. Wittgenstein's passport, pocket knives, and shoulder bag. The INS agents transported her to Albuquerque where they stowed her belongings in a storage locker. The following day, they conducted a search of the bag, seizing several documents pertinent to her travels outside the country from December 1996 to January 1997.

On April 16, 1997, a federal grand jury returned a one-count indictment against Ms. Wittgenstein charging her with violating 8 U.S.C. § 1326 because she was found in the United States without the permission of the Attorney General after having been previously deported. After a two-day trial, a jury convicted Ms. Wittgenstein on August 5, 1997. The court sentenced her to eighteen months in prison followed by three years supervised release and imposed a $30,000 fine.

On appeal, Ms. Wittgenstein argues that the district court (1) erred in instructing the jury regarding the arrest element of 8 U.S.C. § 1326 and therefore erred in denying her motion for acquittal; (2) erred in denying her motion to dismiss in which she claimed that the immigration judge lacked jurisdiction to issue the deportation order against her and failed to properly advise her of her right to appeal; (3) erred in denying her motion to suppress evidence seized during a search of her residence and a later search of her shoulder bag at the time of her arrest; (4) erred in admitting evidence of prior bad acts; (5) erred in instructing the jury that it should consider prior sworn testimony of Agent Lee for impeachment purposes only; and (6) erred in imposing a $30,000 fine.

Discussion

I.

To find a defendant guilty of violating 8 U.S.C. § 1326 (1994), the government must prove beyond a reasonable doubt that defendant was an alien who had been arrested, deported, and thereafter found in the United States without the Attorney General's consent for readmission. See 8 U.S.C. § 1326 (1994); United States v. Martinez-Morel, 118 F.3d 710, 712-13 (10th Cir.1997). Ms. Wittgenstein argues that the district court, over defense objections, erroneously instructed the jury as to the meaning of the arrest element. She asserts that this violated her Fifth and Sixth Amendment rights and thus constitutes reversible error. Her argument presents two pertinent issues: whether the instruction given was legally incorrect; and if so, whether it constitutes harmless error.

After instructing the jury regarding the elements the government must prove, including the arrest element, the district court stated that "[t]he issuance of a Warrant of Deportation by the Immigration and Naturalization Service is a sufficient restraint on liberty to constitute an arrest, even without custodial manhandling or physical restraint." Jury Instruction 8c. Ms. Wittgenstein argues that the mere issuance of a warrant does not provide notice, and therefore cannot constitute an arrest. "We review the jury instructions de novo to determine whether, as a whole, the instructions correctly state the governing law and provide the jury with an ample understanding of the issues and applicable standards." United States v. Cecil, 96 F.3d 1344, 1347 (10th Cir.1996), cert. denied, 519 U.S. 1129, 117 S.Ct. 987, 136 L.Ed.2d 869 (1997); see also Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1324 (10th Cir.1998).

In this case, the...