US v. Figueroa

Decision Date18 December 1998
Docket NumberDocket 98-1111.
Citation165 F.3d 111
PartiesUNITED STATES of America, Appellee, v. Ancelmo FIGUEROA, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Michele L. Adelman, Assistant United States Attorney for the Eastern District of New York, Brooklyn, New York (Zachary W. Carter, United States Attorney, Peter A. Norling, Assistant United States Attorney, of counsel), for Appellee.

Ivar Goldart, Law Offices of David Breitbart, New York, New York, for Defendant-Appellant.

Before: CALABRESI, SACK, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Defendant-appellant Ancelmo Figueroa appeals from a judgment of conviction after a jury trial in the United States District Court for the Eastern District of New York (Nickerson, J.). Figueroa was convicted of: (1) conspiring to induce Hector Reyes, an illegal alien, to enter the United States in violation of 18 U.S.C. § 371; (2) inducing Reyes to reside in the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and (B)(ii); (3) conspiring to permit Ramon Emelio Garcia, an alien excludable under 8 U.S.C. § 1182(a)(2) for a prior aggravated felony conviction, to enter the United States in violation of 8 U.S.C. § 1327; (4) aiding and assisting Garcia to enter the United States in violation of § 1327; and (5-6) two counts of aiding and abetting Geraldo Pereyra in the use of a fraudulently obtained green card in violation of 18 U.S.C. § 1546(a). Figueroa was sentenced to 41 months of imprisonment, which he is now serving, three years of supervised release, and a special assessment of $300. Figueroa appeals only his two § 1327 convictions.

The dispute at issue in this appeal turns on competing interpretations of the terms of § 1327. The then-enacted provision sets forth increased criminal penalties for "any person who knowingly aids or assists any alien excludable under Section 1182(a)(2) ... (insofar as an alien excludable under such section has been convicted of an aggravated felony) ... to enter the United States," and for "any person who ... conspires with any person or persons to ... permit any such alien to enter the United States." Figueroa reads these provisions as permitting a conviction only when a defendant assists or conspires to permit the entry of an alien who he knows to be excludable because of a prior aggravated felony conviction. In the alternative, Figueroa argues that the rule of lenity requires this result. The Government maintains, and the district court agreed, however, that it is sufficient to sustain a § 1327 conviction for a defendant to know only that an alien is excludable. We agree with the district court's conclusion and we affirm the judgment of conviction.


The following facts are limited to the events pertinent to this appeal. Sometime prior to August 1995, government agents were advised that Ramon Emelio Garcia was planning to enter the United States illegally on a specified American Airlines flight. After having served nearly three years of imprisonment for a New York State kidnapping conviction, Garcia had been deported to the Dominican Republic. This conviction rendered Garcia excludable from the United States under 8 U.S.C. § 1182(a)(2). In order to prevent his entry, the agents conducted a surveillance of the Immigration and Naturalization Service ("INS") inspection area on August 26, 1995, the day that Garcia was to arrive.

Shortly after his landing at the John F. Kennedy International Airport, the agents observed Garcia looking for inspection booth number eleven. Figueroa, an INS inspector, manned this booth. The agents saw Figueroa remove his cap and signal to Garcia "like it's all right." When Garcia reached the booth, Figueroa allowed him through without substantive questioning, although Garcia had placed different names on his passport and customs declaration forms. The agents arrested Garcia shortly after he left the inspection area and brought charges against him for illegally entering the United States in violation of 8 U.S.C. § 1326. Figueroa was subsequently arrested and separately indicted.

Garcia cooperated with the Government and testified against Figueroa at trial. Garcia testified that after being deported to the Dominican Republic, he met Geraldo Pereyra, who was also known as "Arnaldo" and "Rosendo Correa." Pereyra was introduced to Garcia as someone who could help him enter the United States illegally. After obtaining both a passport and a flight ticket for Garcia, Pereyra drove him to the Santa Domingo Airport. Pereyra advised Garcia not to use his real name on his customs declaration form and to look for booth eleven, Figueroa's booth, upon landing. In a videotaped deposition taken from the Dominican Republic, Pereyra testified that his nickname was "Arnaldo," that he and Figueroa had been friends for some time, and that he knew Figueroa was an INS inspector. Pereyra further testified that the two men had met with one another two or three times per year for the last several years. No evidence was presented at trial to suggest that either Pereyra or Figueroa knew exactly why Garcia was excludable from the United States.

At the close of trial, over defense objections, the trial judge instructed the jury, in relevant part, as follows:

To prove the crime alleged in Count Four i.e., violation of § 1327 by aiding and assisting Garcia's entry into the United States, the government must establish, beyond a reasonable doubt, the following three elements:
First: That the specified person, Ramon Emilio Garcia, was an alien excludable under section 1182(a)(2) of Title 8 of the United States Code;
Second: That the defendant aided and assisted Ramon Emilio Garcia to enter the United States; and
Third, that the defendant engaged in such conduct, knowing that Garcia was excludable.

(Tr. at 675.)1

After the jury returned a guilty verdict on two counts of violating § 1327 and four other counts, Figueroa submitted several post-trial motions. He moved to dismiss the § P1327 charges, arguing first, that the jury should have been required to find that he knew Garcia was excludable because of his prior aggravated felony conviction, and second, that the evidence at trial was insufficient to establish this knowledge. The district court denied all of Figueroa's motions, explaining, in pertinent part, that:

It is highly unlikely that the law makers envisioned § 1327 as applying only to those learned in the law as to the specific crime that the assisted alien had committed or even as to the ground for exclusion. Congress simply provided that if one knew the alien being assisted to be ineligible to receive a visa and excludable, one takes the chance that he has committed the serious crimes to which section 1327 applies.

United States v. Figueroa, No. CR 95-823, 1998 WL 273020, at *3 (E.D.N.Y. Jan. 9, 1998). On appeal, Figueroa argues that the district court erred in this ruling and improperly charged the jury on the mens rea required for a § 1327 conviction. We disagree.


This appeal involves the question of what mental state a defendant must have in order to be convicted under 8 U.S.C. § 1327. The then-enacted statute provides that:

Any person who knowingly aids or assists any alien excludable under section 1182(a)(2) of this title (insofar as an alien excludable under such section has been convicted of an aggravated felony) or 1182(a)(3) of this title (other than subparagraph (E) thereof) of this title to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined under Title 18, or imprisoned not more than 10 years, or both.2

Because Figueroa was convicted under the part of the statute dealing with aliens previously convicted of aggravated felonies, the precise issue in this case is how much a defendant must know in order to be convicted.

The question of what mental state is required for a § 1327 conviction turns on "construction of the statute and . . . inference of the intent of Congress." United States v. Balint, 258 U.S. 250, 253, 42 S.Ct. 301, 66 L.Ed. 604 (1922); see also Staples v. United States, 511 U.S. 600, 604-05, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); Liparota v. United States, 471 U.S. 419, 423, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). We review issues of statutory construction de novo, see United States v. Proyect, 989 F.2d 84, 87 (2d Cir. 1993), and the language of a statute is our starting point in such inquiries, see Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992).

By using the word "knowingly," Congress chose to include some knowledge requirement for a conviction under § 1327.3 Unfortunately, the language of § 1327 does little to clarify just how far Congress intended this knowledge requirement to go. For example, § 1327 does not indicate whether the word "knowingly" was meant to modify only the verbs "aid or assist" or some or all of the characteristics of the alien described in the statute. With regard to the part of the statute at issue, the knowledge requirement might therefore plausibly be read to extend to any one or more of the following characteristics: that the person aided is (1) an alien, (2) an excludable alien, (3) an alien who is excludable under § 1182(a)(2),4 or (4) an alien who is excludable under §§ 1182(a)(2) by virtue of an aggravated felony conviction. The language of this section also does little to suggest whether knowledge of excludability, if relevant, should be understood as knowledge of the facts or circumstances that make a given alien excludable, or as extending further to knowledge that those circumstances serve as grounds for exclusion under the law.5

Figueroa argues that the term "knowingly" should be read to modify all the elements of the crime, including the precise nature of the alien's excludable status, because such a...

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