United States v. Alvarado-Soto, Cr. No. 23134.

• Decision Date: 21 April 1954
• Docket Number: Cr. No. 23134.
• Citation: 120 F. Supp. 848
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. ALVARADO-SOTO.

120 F. Supp. 848

UNITED STATES v. ALVARADO-SOTO.

Cr. No. 23134.

United States District Court, S. D. California, Central Division.

April 21, 1954.

Laughlin E. Waters, U. S. Atty., Angus D. McEachen, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

David C. Marcus, Los Angeles, Cal., for defendant.

HARRISON, District Judge.

The defendant was charged under an indictment returned by the Grand Jury. The case came on regularly for trial and was tried by the Court, the defendant having waived trial by jury. At the close of the evidence, the defendant raised certain legal questions involving constitutional law. Thereupon the case was taken under submission. The defendant was allowed ten days to file his points and authorities, and having failed to do so, the Court has considered the case ready for determination.

This is a prosecution under 8 U.S.C.A. § 1326 which provides in part "Any 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) * * * the Attorney-General has expressly consented to such alien's reapplying for admission; or (B) * * unless such alien shall establish that he was not required to obtain such advance consent * * * shall be guilty of a felony * * *." The defendant was indicted and tried under that portion of the statute which specifically makes it a crime to be found in the United States after having once been excluded and deported.

There is no dispute as to the facts in this case. The defendant is a Mexican alien who after having been excluded and deported from the United States was thereafter found in the United States without having obtained the permission of the Attorney-General to be admitted here and without having been excused from doing so. The defendant was last deported in 1942 and shortly thereafter re-entered this country and has been present here since 1942 or 1943.

The defendant contends that he may not be found guilty of a crime because that portion of the statute under which he was tried is so vague as to violate the Fifth Amendment to the United States Constitution and for the reason that this portion of the statute was enacted at such a time in reference to the defendant's conduct as to amount to an "ex post facto" and hence void law.

There is no merit to either of these contentions. As to vagueness the United States Supreme Court has stated the requirement to be "the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties * * *. The dividing line between what is lawful and unlawful cannot be left to conjecture. * * * The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue". Connally v. General Construction Co., 1926, 269 U.S. 385, 46 S. Ct. 126, 127, 70 L.Ed. 322. A plain reading of this statute readily discloses that the conduct which it punishes is an illegal presence in the United States after having once been excluded and deported. The statute leaves no doubt as to the conduct which will be subject to punishment nor can it be said that an ordinary person reading...