## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAUL MARTINEZ-MOREL, Defendant-Appellant. No. 96-6234

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-95-165-M)
William P. Earley, Assistant Federal Public Defende r, Oklahoma City, Oklahoma, for Defendant-Appellant. David Walling, Assistant United States Attorney, Ok lahoma City, Oklahoma (Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, and Mark A. Yancey, Assistant United States Attorney, Oklaho ma City, Oklahoma, 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 c laims that the district court erred in excluding evidence of his belief that he w as not deported. He also asks the Tenth Circuit to reconsider, in light of the Su preme Court's decisions in United States v. X-Citement Video, Inc. , 513 U.S. 64 (1994) and Staples v. United States , 511 U.S. 600 (1994), circuit precedent holding th at the only mens rea the government must prove to obtain a convictio n 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 ea ch element of the crime to obtain a conviction under section 1326.
BACKGROUND On May 2, 1995, Sergeant Michael Pacheco of the Okl ahoma City Police Department was on a routine patrol when he passed a1978 Plymouth with a smashed windshield. Officer Pacheco stopped the ca r which was driven by defendant Martinez. Martinez could not produce a va lid driver's license or proof of insurance, and only provided Officer Pacheco wit h a resident alien card that1 Section 1326(a) provides:

[A]ny alien who--

(1) has been arrested and deported, has been exclud ed and deported, or has departed the United States whi le an order of exclusion or deportation is outstanding, and thereafter. (2) enters, attempts to enter, or is at any time fo und in, the United States, unless (A) prior to his reem barkation at a place outside the United States or his applicatio n for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien prev iously 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 mo re than 2 years, or both.

2 The charging document in a deportation proceeding. **- 3 -** was later determined to be false. After running a computer check and discovering that Martinez's driving privileges had been suspend ed, Pacheco arrested Martinez. Subsequent to his arrest, the Immigration and Natur alization Service (INS) began an investigation of Martinez and learned that he had been deported to Mexico in 1993 and that he had not received permiss ion 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 s how cause 2 issued in 1992, alleging that: (1) Martinez was not a citizen of th e United States; (2) he was a citizen of Mexico; and (3) he entered the United St ates without being inspected by3 Pursuant to 8 U.S.C. § 1254(e) (1994) repealed as of April 1, 1997 by Pub. L.

No. 104-208, Div. C., Title III, §§ 308(b)(7), 309( a). 110 Stat. 3009, 3009-1680, 3009- 1697 to 3009-1698 (1996), "the Attorney General may , in his discretion, permit any alien under deportation proceedings . . . to departvoluntarily from the United States at his own expense in lieu of deportation if such alie n shall establish to the satisfaction of the Attorney General that he is, and has been, a pe rson of good moral character for at least five years immediately preceding his applicat ion for voluntary departure . . . ." **- 4 -** an immigration officer. The government also introd uced evidence of a deportation hearing that resulted in an order to de port 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 Y sidro, 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 depa rt, 3 and to be represented by counsel. The defense argued that the form would e stablish 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 voluntaril y departed the country. The court excluded the evidence.**- 5 -**

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 o ffered 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 o n 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 b eyond 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 c ourt's rejection of an alternative instruction that required the governmen t 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 amens rea for those elements of section 1326. However, he submits that recent S upreme Court authority on issues of mens rea calls into question the validity of that Tenth Circuit precedent.4 The government asserts that the defendant attempted to introduce evidence only

of his mistaken belief that he was allowed to leave voluntarily. The record reveals that the defendant offered to testify that he thought he was not deported and that in facthe was not deported. However, as discussed below, the defendant offered no facts to support his claim that he was, in fact, not deporte d. **- 6 -** We reject Martinez's arguments. Neither X-CitementVideo nor Staples requires the government to prove a mens rea for eac h 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 withi n 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 tri al court made a clear error of judgment or exceeded the bounds of permissible choi ce in the circumstances." United States v. Levine , 970 F.2d 681, 688 (10th Cir. 1992). Martinez arg ues that the district court erred in excluding the 1-274 for m and his proffered testimony that he did not believe he was deported and that, i n 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**- 7 -**

statute does not require the government to prove th at the defendant knew that he was deported. Rather, to obtain a conviction undersection 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 ree ntered, attempted to reenter, or was found in the United States; 4) without the perm ission 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 "gener al intent to do the prohibited act, to-wit enter." United States v. Miranda-Enriq uez , 842 F.2d 1211, 1212 (10th Cir. 1988) (quoting Pena-Cabanillas v. United State s , 394 F.2d 785, 790 (9th Cir. 1968)). Evidence is relevant if it has "any tendency to mak e 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," th e court was correct to exclude it. In Miranda-Enriquez , we held that testimony about a defendant's mistak en belief that he had lawfully entered the country was properly excluded in a prosecution under section 1326, because specific cr iminal intent does not play a part in the crime charged. 842 F.2d at 1213. Acco rdUnited States v. TrevinoMartinez , 86 F.3d 65, 68 (5th Cir. 1996), cert. denied , 117 S. Ct. 1109 (1997)**- 8 -**

(majority of circuits "agree that the statute neith er requires the government to prove specific intent nor allows an alien to defeat conviction by demonstrating a reasonable belief of permission to reenter this cou ntry"); United States v. LeonLeon , 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 inte nt 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 Ge neral constitutes a defense to charge under section 1326). In his brief on appeal, the defendant claims that h e 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 pro of of any such evidence. On at least two occasions, the district court asked the d efendant 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 ans wers 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 th at the Defendant was deported and Mr. Martinez will testif y that he feltthat he had voluntarily departed, was not deported. . . . This document is in his file. I'm going to ask the agent -- obvi ously 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 pape r where he agreed5 Defense Exhibit 1 is the 1-274 form.

6 Although the defendant offered the 1-274 form as ev idence that he was not deported, the form offers no support for that propo sition. The form merely notifies an alien that he or she may askto be allowed to voluntarily depart. It does not, as defense counsel represented at oral argument, give an alienthe rightto voluntarily depart. Further, the form does not, as defense counsel repr esents in its brief, show that the defendant "requested voluntary departure." (Brief of Appellant at 10). There is no place on the form for an alien to indicate that he or she would like to voluntarily depart, and Martinez did not so indicate on the form. **- 9 -** to voluntarily depart, because it impacts on what h e thoughtwas happening after that. (ROA Vol. II at 67) (emphasis added). Later in the trial, Early offered a different descr iption of the evidence he sought to admit.

[Martinez] believes that he simply agreed to volunt arily depart from the country and that's what occurred. That's what I anticipate he will testify to regarding Defendant's Exhibit 1 5 as well as his understanding of the proceeding. The reason I think that is relevant is because one of the essential elements is that he was arrested and depo rted and the government obviously alleges he was deported. Mr. Martinez's side of this is he wasn't deported, he voluntarily departed. (ROA Vol. II at 120) Although some of Early's statements indicate that t he defendant would have testified that he was not deported, Early did not o ffer any specific facts to which Martinez would testify in support of his contention that he was not deported. 6 Nor did Martinez offer any evidence to contradict a ny of the government's evidence of his deportation. Thus, the substance o f the defendant's proffered7During a pre-trial examination, Martinez admitted o n the record that

although at the time of his deportation he thought he voluntarily departed, he later learned that he had been deported. In response to a question by his attorney whether he understood what he was charged with, Mr. Martine z said: "I understand that I left by means of a paper that permitted me to leave voluntarily and I could return to the United States. That's what I understood. Now, however, y ou, my attorney, explained to me that this is a violation because I left under a dep ortation order to my country." (ROA Vol. II. at 11). **- 10 -** evidence, regardless of how it was couched, was onl y that the defendant had a belief at the time of his reentry that he had not b een deported. 7 As discussed above, such evidence is not relevant to a prosecuti on for illegal reentry after deportation, and the district court did not abuse i ts discretion in excluding the evidence. The defendant argues that the district court violat ed his Sixth Amendment and due process rights to present witnesses in his defense. See Roviaro v. United
States , 353 U.S. 53 (1957); Washington v. Texas , 388 U.S. 14 (1967). We disagree. The court did not prevent the defendant from calling witnesses or testifying in his own defense. Rather, the court o nly excluded irrelevant evidence. Neither Roviaro nor Washington stands for the proposition that a defendant's right to present evidence or call witne sses is unlimited. Rather, the cases establish the defendant's right to present re levant and material witnesses. See Washington , 388 U.S. at 16 ("It is undisputed that [the prof fered] testimony would have been relevant and material . . . ."); R oviaro , 353 U.S. at 63 (describing proffered testimony as "highly relevant "). See also United States v.**- 11 -**

Begay , 937 F.2d 515, 523 (10th Cir. 1991) ("[T]he Consti tution requires that a criminal defendant be given the opportunity to pres ent evidence that is relevant, material and favorable to his defense.") (quoting United States v. Saunde rs , 736 F. Supp. 698, 703 (E.D. Va. 1990)) (emphasis added) . Since the evidence the defendant sought to introduce was not relevant, the court did not abuse its discretion in excluding it. B. X-Citement Video and Staples Do Not Change the M ens Rea Requirement Under Section 1326 The defendant also complains that the district cour t's instructions to the jury did not require the jury to find that the def endant knew that he was deported or that he knew he entered the United States withou t the permission of the Attorney General. Martinez acknowledges that the c ourt's instructions were proper under Tenth Circuit precedent, as discussed above. However, he urges us to reconsider such precedent in light of Supreme Co urt cases such as United States v. X-Citement Video , 513 U.S. 64 (1994) and Staples v. United States , 511 U.S. 600 (1994). We decline to do so. In X-Citement Video , the Supreme Court held that a statute criminalizi ng the receipt or shipment of child pornography requir es that the accused have knowledge not only of the receipt or shipment but a lso of the fact that the8 The statute, 18 U.S.C. § 2252 (1994 & Supp. 1997), provides:

(a) Any person who-- (1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any vi sual depiction, if-- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; (2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials whichhave been mailed or so shipped or transported, by any means i ncluding by computer, or knowingly reproduces any visual depict ion for distribution in interstate or foreign commerce by any means including by computer or through the mails, if-- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct . . . ."

**- 12 -** materials being received or shipped are child porno graphy. 8 The Court acknowledged that the most natural reading of the s tatute would require only a knowing receipt or shipment of the package. 513 U. S. at 68. However, the Court reasoned that because the receipt of a package is " otherwise innocent conduct," Congress could not have intended to criminalize suc h conduct absent proof that the recipient knew that the package contained child pornography. Id. at 69-72. In Staples , the Court held that a statute making it unlawful to possess an unregistered machine gun requires the government to prove that the accused knew the weapon that he or she possessed had the physica l characteristics that brought9 26 U.S.C. § 5861 (1994) provides, in relevant part, "[i]t shall be unlawful for

any person . . . (d) to receive or possess a fir earm which is not registered to him in the National Firearms Registration and Transfer Record . . . ." The statute includes "a machinegun" within the definition of "firearm." 26 U.S.C. § 5845(a)(6) (1994). **- 13 -** it within the statutory definition of a machine gun . 511 U.S. at 602. 9 As in XCitement Video , the Court reasoned that because "guns generally c an be owned in perfect innocence," Congress would not have intende d to criminalize the failure to register a weapon as a machine gun if an individual did not know that the gun was of a type that was required to be so registered. I d. at 611-12. Like the statute the Court considered in Staples , section 1326 does not, by its terms, contain a mens rea. However, it is well -established that silence alone does not necessarily suggest that Congress intended to dispense with a mens rea element. Staples , 511 U.S. at 605. The Supreme Court has taken the view that in construing most statutory crimes an indication of C ongressional intent, express or implied, is necessary to dispense with mens rea as an element of the crime. Id at 606. At the same time, when the Court has consider ed "regulatory" statutes, it has "understood Congress to impose a form of strict lia bility . . . . In construing such statutes, [the court has] inferred from silenc e that Congress did not intend to require proof of mens rea to establish an offense." Id

. Courts have found the Immigration and Nationality A ct, and specifically section 1326, to be a regulatory measure. United S tates v. Hussein , 675 F.2d 114, 115 (6th Cir. 1982); see also United States v. Her nandez , 693 F.2d 996, 1000**- 14 -**

(10th Cir. 1982) (agreeing with the analysis and de cision in the Hussein case). Such a finding indicates a presumption of strict li ability. Further, unlike the conduct proscribed in X-Citemen t Video and Staples , crossing international borders is a type of conduct "generally subject to stringent public regulation," X-Citement Video , 513 U.S. at 71. We considered an argument similar to the defendant's in United State s v. Capps , 77 F.3d 350, 352 (10th Cir.), cert. denied , 116 S. Ct. 2568 (1996), where we held that Staple s and X-Citement Video do not require the government to prove knowledge o f felony status in a prosecution under the felon-in-possessi on statute, 18 U.S.C. 922(g) (1994 & Supp. 1997), because "a person convicted of a felony cannot reasonably expect to be free from regulation when possessing afirearm." Capps , 77 F.3d at 353. The argument is no more persuasive in this co ntext. Entering a country in violation of its immigration laws is not "otherwise innocent conduct." See United States v. Meraz-Vale ta , 26 F.3d 992, 997 (10th Cir. 1994) ("Deported aliens are already aware thatthey are in violation of the law as evidenced by their surreptitious entry.") (q uoting United States v. Whittaker , 999 F.2d 38, 42 (2d Cir. 1993)). Cf. United Stat es v. Cook , 76 F.3d 596, 601 (4th Cir.), cert. denied , 117 S. Ct. 320 (1996) (distinguishing XCitement Video and Staples , and holding that to obtain a conviction for recei pt of drugs from a minor, 21 U.S.C. § 861(a)(3) (1994), t he government need not prove10 Section 1325(a) provides: Any alien who (1) enters or attempts to enter the U nited States at any time or place other than as designated by immig ration officers, or (2) eludes examination or inspection by immigration off icers, or (3) attempts to enter or obtains entry to the United States by awillfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense , be fined under Title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under Titl e 18, or imprisoned not more than 2 years, or both.

11 A defendant can be sentenced to up to twenty year s for reentry after deportation after commission of an aggravated felony pursuant to § 1326(b)(2). Thus, the harshness of the penalty is not merely for reentering after deportation, but for the recidivism and dangerousness of the defendant. **- 15 -** that defendant knew individual was a minor because "receiving illegal drugs is not otherwise innocent conduct"). Even in the abse nce of a prior deportation, Martinez's conduct in illegally reentering the coun try would subject him to prosecution under 8 U.S.C. § 1325(a) (1994 & Supp. 1997). 10 In Staples and X-CitementVideo the Court considered the harsh penalties attached to the crimes in attributing a mens rea to them. Staples , 511 U.S. at 615- 16; X-Citement Video , 513 U.S at 72. Martinez argues that since the pe nalty under section 1326 can reach 20 years, 11 we should interpret the statute as requiring a mens rea for each element. This argume nt contains several flaws. First, harsh penalties are far more troubling where individuals lack notice that their conduct may be proscribed. Second, the 20-ye ar penalty to which Martinez refers is the penalty for reentering the country su bsequent to a conviction for an aggravated felony. § 1326(b)(2). The sentence pres cribed under section 132612 The Sixth Circuit, in turn, relied on the Ninth Ci rcuit decision in Pena- (continued...) **- 16 -** when the defendant is not subject to a sentence enh ancement for prior crimes is not more than 2 years. § 1326(a). Finally, requiri ng a mens rea for the status element of being a deportee would be inconsistent w ith our treatment of status elements in other crimes. See, e.g., Capps , 77 F.3d at 352 (the only knowledge required for a conviction under felon-in-possession statute, 18 U.S.C. 922(g)(1), is knowledge that instrument possessed is a firearm ). Accord United States v. Langley , 62 F.3d 602, 607 (4th Cir. 1995), cert. denied , 116 S. Ct. 797 (1996) (rejecting argument that Staples and X-Citement Video require government to prove knowledge of felony status in prosecution und er 922(g)(1)). The greatest difficulty with Martinez's argument, h owever, is that the Supreme Court reiterated in Staples and X-CitementVideo that the mens rea of a statutory crime is a question for the legislature a nd that a court's role in construing a statute is to discern Congressional in tent. See, e.g., Staples , 511 U.S. at 604-05. This is precisely the approach we took in originally construing section 1326. In United States v. Hernandez , 693 F.2d 996, 1000 (10th Cir. 1982), we adopted the reasoning of the Sixth Circuit in Unite d States v. Hussein , 675 F.2d 114 (6th Cir. 1982), and held that under section 13 26 the government need not prove that a defendant has the specific intent to e nter the country illegally. 12 The12 (...continued)

Cabanillas v. United States , 394 F.2d 785 (9th Cir. 1968). **- 17 -** HusseinCourt noted that the statute is a regulatory measu re passed pursuant to Congress's plenary powers over aliens. 675 F.2d at115. Reviewing the legislative history of the Act, the Court found "no evidence of Congressional intent to include an intent requirement." Id . Perhaps most persuasively, the Court noted that several other sections of the Act did in clude an intent requirement. "Given that the Act was the final product of a comp lete investigation . . . 'it would be absurd . . . to think that Congress inadvertent ly left intent out of section 1326.'" Id . (quoting Pena-Cabanillas , 394 F.2d at 790). Section 1326 is a regulatory measure passed by Co ngress that does not proscribe "otherwise innocent conduct." A study of the text reveals that Congress did not intend to require an alien to know that he or she had been deported prior to illegal reentry into this country. Thus, we rea ffirm our earlier holdings in Hernandez and Miranda-Enriquez that the only mens rea required under section 1326 is the intent to do the act of entering the co untry. Staples and X-Citement Video do not require otherwise.
CONCLUSION Finding no error in the district court's exclusion of evidence, or in the court's jury instructions, we affirm the defendant' s conviction.