UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5145

OMAR WOODBINE, a/k/a Omar

Woodvear,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Chief District Judge.

(CR-94-350-A)

Argued: November 2, 1995

Decided: March 11, 1996

Before RUSSELL and WIDENER, Circuit Judges, and MICHAEL,

Senior United States District Judge for the Western District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Claude David Convisser, Alexandria, Virginia, for Appellant. John Patrick Elwood, Special Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,

Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Omar Woodbine appeals his conviction by jury of illegally reentering the United States after having been arrested and deported, in

violation of 8 U.S.C. § 1326(a) and (b)(1). 1 The district court sentenced Woodbine to twenty-four months imprisonment. Woodbine

contends that the evidence adduced at trial was insufficient as a matter of law to support his conviction. He also challenges several evidentiary rulings made by the district court. Finding no error, we

affirm.

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1 8 U.S.C. § 1326 provides as follows:

(a) Subject to subsection (b) of this section, 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) prior to his reembarkation at a

place outside the United States or his application for admission from foreign contiguous territory, the Attorney General

has expressly consented to such aliens reapplying for admission; or (B) with respect to an alien previously excluded and

deported, unless such alien shall establish that he was not

required to obtain such advance consent under this chapter

or any prior Act,

shall be fined under Title 18, or imprisoned not more than 2

years, or both.

(b) Notwithstanding subsection (a) of this section, in the case

of any alien described in such subsection --

(1) whose deportation was subsequent to a conviction for

commission of a felony (other than an aggravated felony),

such alien shall be fined under Title 18, imprisoned not more

than 5 years, or both.

 2
I.

Woodbine initially came to the United States in 1979 on business.

However, he stayed beyond the six months permitted by his visa. In

1983, the Immigration and Naturalization Service ("INS") issued an

Order to Show Cause charging Woodbine with being deportable for

having remained in the country after the expiration of his visa. The

INS simultaneously issued a warrant for Woodbine's arrest and

Woodbine was subsequently arrested. Woodbine was released on

bond and appears to have evaded the INS until 1986 when he was

finally brought before an Immigration Judge. On February 3, 1986,

Woodbine was ordered deported and served with a letter (INS Form

I-294) informing him that re-entry into the United States without permission was punishable as a felony. On February 5, 1986, a Warrant

of Deportation (INS Form I-205) was issued, and the following day,

Woodbine was deported to Panama. In July of 1992, Woodbine was

located in the District of Columbia prison system, triggering this

action.

II.

Woodbine argues on appeal that there was insufficient evidence to

support his conviction. Specifically, Woodbine maintains that the

government failed to prove, as a matter of law, two essential elements

of the charged offense. First, Woodbine contends that the government

failed to prove that Woodbine had been arrested or excluded at the

time he was deported. Second, Woodbine argues that the government

failed to prove identity -- that the person who was deported in 1986

was the same person who was subsequently found in the United

States in 1992. Woodbine also argues that the trial judge committed

reversible error by denying Woodbine's motion to strike expert fingerprint testimony, and by admitting certain evidence over the objections of defense counsel.

We discuss in detail only Woodbine's claim that the evidence of

arrest was insufficient as a matter of law to support his conviction.2

Evidence is sufficient to support a conviction so long as, "viewing the

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2 We note that this was the only issue raised by defense counsel at oral

argument.

 3
evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319

(1979).

III.

Woodbine argues that the government failed to prove that he was

arrested prior to his deportation in 1986 -- an essential element of the

crime charged. Rather, it is possible, Woodbine contends, that he voluntarily submitted himself to physical deportation without having

been arrested. Woodbine concedes there was evidence before the jury

that he was taken into custody in 1983, pursuant to the arrest warrant

and Order to Show Cause issued by the INS.3 However, Woodbine

argues that this arrest is not equivalent to the"arrest" contemplated

by § 1326. Instead, Woodbine asserts that an"arrest" under § 1326

signifies an arrest occurring after a show cause hearing, not one

undertaken for the purpose of securing the presence of a potential

deportee at a show cause hearing.

Woodbine relies for support on United States v. Wong Kim Bo, 466

F.2d 1298 (5th Cir.), reh'g denied, 472 F.2d 720 (1972). In that case,

the Fifth Circuit held that evidence of an arrest carried out pursuant

to an Order to Show Cause was insufficient to meet the arrest require-

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3 On June 14, 1995, the government, in an effort to buttress its arguments on appeal with respect to the "arrest" prong, filed a motion for

leave to file a supplemental appendix. That motion was granted and the

government subsequently filed two trial exhibits as part of its supplemental appendix. The first, Government Exhibit 5-A, is a 1983 notice written

on INS letterhead, commanding one Valerie Woodbine to surrender the

defendant for a hearing "pursuant to the terms of the bond posted by you

for the release from custody of the above-named alien." The second,

Government Exhibit 5-C, is a 1986 notice written on INS letterhead,

releasing Woodbine from custody pending his deportation. On October

31, 1995, Woodbine filed a motion to vacate the order granting the government leave to file the supplemental appendix on the grounds that the

government did not move into evidence the two exhibits comprising the

appendix. The government does not oppose Woodbine's motion to

vacate and we, therefore, grant the motion. Accordingly, we do not rely

in any way upon the exhibits contained in the supplemental appendix.

 4
ment of § 1326. In reaching its decision, the Fifth Circuit reasoned

that the purpose of the arrest element of § 1326 is to afford aliens "all

notice reasonably possible relating to their status." Id. at 1304. In

other words, the court opined that unless an alien is arrested, he or she

will not have adequate notice that re-entering the country after being

deported is illegal. Moreover, it was the court's judgment that an

arrest for purposes of securing a potential deportee's presence at a

show cause hearing did not afford the potential deportee adequate

notice of his or her status and, thus, was not an"arrest" for purposes

of § 1326.

Although we have reservations about the correctness of the court's

holding in Wong Kim Bo,4 we conclude that the case ultimately undermines, rather than supports, Woodbine's appeal. Simply stated, Wong

Kim Bo is distinguishable from the present case because a Warrant of

Deportation and INS Form I-294 were never issued in that case. Id.

at 1301. The Fifth Circuit itself noted the importance of this distinction: "If a Warrant of Deportation (INS Form I-205) and the accompanying INS form I-294 had been issued, there could be no doubt that

the defendant had been fully informed as to the legal effect of his

departure and the consequences of his reentry." Id. at 1305. Thus,

"service of the Warrant of Deportation [ ] must be characterized as an

`arrest'" for purposes of § 1326. Id. at 1305 n. 17; see also United

States v. Hernandez, 693 F.2d 996, 998 (10th Cir. 1982), cert. denied,

459 U.S. 1222 (1983) (issuance of Warrant of Deportation constitutes

an "arrest" for purposes of § 1326).

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4 It appears to us that a pre-hearing arrest and Order to Show Cause

gives a potential deportee ample notice that he cannot get on the next

plane back to the U.S. if and when he is adjudged deportable and is actually deported. Indeed, common sense dictates such a conclusion. Otherwise, there would be no reason for the government to set in motion its

cumbersome deportation machinery. Furthermore, as the Fifth Circuit

appeared to concede in its subsequent opinion denying a rehearing in the

Wong Kim Bo case, 472 F.2d 720, 722 (5th Cir. 1972), the government

is not required under § 1326 to show specific intent on the part of the

alien. Thus, we fail to see the importance of notice in the first instance.

 5
It is undisputed that Woodbine was served both with a Warrant of

Deportation and with INS Form I-294 and that these documents were

admitted into evidence.5 Thus, there was sufficient evidence for the

jury to conclude that Woodbine had been "arrested" prior to being

deported.

IV.

We have considered Woodbine's other objections and find them

without merit. The government proved the identity element of the

offense through fingerprint and handwriting specialists. Although

Woodbine contends that the expert testimony was not persuasive, the

jury could accept or reject it. In addition, the district court did not

abuse its discretion in making its evidentiary rulings. Accordingly, we

affirm Woodbine's conviction.

AFFIRMED

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5 Woodbine argues that he was not served with these documents until

he was brought to the airport to be deported. Apparently, Woodbine

believes that the issuance of the documents at the airport vitiated their

ability to consummate an arrest because Woodbine was about to get on

an airplane. We are puzzled by this argument since Woodbine contends

that the sine qua non of an "arrest" for purposes of § 1326 is the provision of notice of the inability to re-enter the country. Given that Woodbine concedes he received the Warrant of Deportation and INS form

I-294 at the airport, the timing of the issuance of those documents would

appear to have little import for determining whether an "arrest" was

effectuated.

 6