*

Honorable William C. O'Kelley, Senior U.S. District Judge

for the Northern District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8755.

UNITED STATES of America, Plaintiff-Appellee,

v.

David Andrew HENRY, a.k.a. David Henry Corelli, DefendantAppellant.

May 1, 1997.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:94-CR412-1-ODE), Orinda D. Evans,

Judge.

Before DUBINA and BLACK, Circuit Judges, and O'KELLEY*

, Senior

District Judge.

O'KELLEY, Senior District Judge:

Appellant challenges his conviction of being found in the

United States after deportation without the Attorney General's

consent in violation of Title 8 U.S.C. § 1326. The primary issue

on appeal is whether the offense of illegal reentry into the United

States after deportation in violation of Title 8 U.S.C. § 1326 is

a specific intent crime.

Appellant David Andrew Henry was deported on November 9, 1988,

under the name David Andrew Corelli, following his conviction in

the State of Virginia for the offense of possession with intent to

distribute cocaine. Appellant asserts that he provided the

government with his actual name while he awaited deportation;

however, his deportation paperwork bore the name David Henry

Corelli also known as David Andrew Corelli. On August 21, 1992,
appellant obtained a multiple entry United States visa from the

United States Embassy in Kingston, Jamaica. In order to obtain the

visa, it was necessary for appellant to complete several forms and

answer questions, including questions regarding prior convictions.

Appellant asserts that he submitted the forms as well as a Jamaican

passport, which bore the name Dave Andrew St. Alban Henry, to the

United States Embassy. He then underwent an interview. Pursuant

to State Department policy, appellant's visa application was

destroyed after one year.

On October 18, 1994, appellant was arrested, having been found

in the United States in the Northern District of Georgia without

first having obtained the consent of the Attorney General to

reapply for admission in violation of Title 8 U.S.C. § 1326.

Appellant was charged in a one count indictment with illegal

reentry into the United States after deportation in violation of

Title 8 U.S.C. § 1326.

At trial, appellant requested a specific intent instruction as

an element of the offense of illegal reentry under Title 8 U.S.C.

§ 1326. The court denied appellant's request and instructed the

jury that the "government is not required to prove that the

defendant knew he was breaking the law in reentering the United

States or being in the United States, only that the defendant

reentered and was present in the United States voluntarily." [R4-

333]. In addition, the court instructed the jury that "officials

and employees of a U.S. Consulate and Immigration Inspectors at

points of entry into the United States are not designees of the

Attorney General for the purposes of 8, United States Code, section
1326, and as a matter of law cannot provide the consent to reapply

for admission referred to in that statute." Id. Appellant argues

that the court foreclosed any opportunity for appellant to argue

that he had a good faith belief as to the Attorney General's, or

her designee's, permission to allow him to travel to the United

States.

Also at trial, the government called U.S. Foreign Service

Officer Patty Hill to testify as to the process by which a prior

deportee must obtain permission from the Attorney General to

reapply for admission to the United States. Ms. Hill testified as

to the various forms that have to be completed in order for a

person to obtain a nonimmigrant visa. Ms. Hill further testified

that the nonimmigrant visa form asks an applicant whether he or she

has ever been convicted as a drug trafficker. Appellant argues

that Ms. Hill's testimony should have been excluded because it was

speculative, unreliable, prejudicial, confusing, and misleading.

Following a three-day jury trial, appellant was convicted on

the single count in the indictment. Appellant was sentenced to

sixty-four months imprisonment, to be followed by three years

supervised release. Appellant filed a timely notice of appeal.

 The statute at issue provides in pertinent part:

§ 1326. Reentry of deported alien; criminal penalties for

reentry of certain deported aliens.

(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 alien's 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.

8 U.S.C. § 1326(a). The trial judge instructed the jury that the

elements of a violation of § 1326 are (1) that the defendant is an

alien, (2) that the defendant has been arrested and deported from

the United States, and (3) that thereafter the defendant was found

in the United States without the Attorney General's express consent

to reapply for admission. Appellant disputes the elements as set

forth above. Appellant does not dispute the first two elements nor

that he was found in the United States. However, appellant argues

that the government must show that appellant had the specific

intent to reenter the United States without the express consent of

the Attorney General.

Seven of our sister circuits have addressed this issue. Six

have concluded that specific intent is not an element of § 1326.

See United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir.1996)

(section 1326 does not require the government to prove specific

intent nor does it provide an alien who reenters this country

illegally with a defense of reasonable mistake); United States v.

Espinoza-Leon, 873 F.2d 743 (4th Cir.1989) (a conviction under §

1326 requires proof merely of a voluntary act by defendant, general

intent); United States v. Hussein, 675 F.2d 114 (6th Cir.1982)

(the government need not prove specific intent under § 1326);

United States v. Hernandez, 693 F.2d 996 (10th Cir.1982) (section
 1

In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981), the court adopted as binding precedent all decisions

of the former Fifth Circuit handed down prior to the close of

business on September 30, 1981. Id. at 1209. 

1326 contains no requirement of specific intent); United States v.

Newton, 677 F.2d 16 (2d Cir.1982) (there is nothing in the language

or legislative history of § 1326 to support the proposition that

the government must prove specific intent); Pena-Cabanillas v.

United States, 394 F.2d 785 (9th Cir.1968) (specific intent is not

an element of § 1326). This court has previously opined in dictum

that the government "is not required to show specific intent in a

§ 1326 prosecution." United States v. Wong Kim Bo, 472 F.2d 720,

722 (5th Cir.1972).1 The Seventh Circuit has concluded that

specific intent is an element of § 1326. United States v. Anton,

683 F.2d 1011 (7th Cir.1982) (Posner, J., dissenting). The court

notes, however, that the decision was handed down by a divided

panel over a dissent by Judge Posner.

 Section 1326 on its face is silent on the issue of intent.

Congress did not explicitly impose a requirement of specific intent

anywhere in the statute, nor did it provide that an alien's

reasonable belief that he was legally entitled to reenter the

United States is a defense to criminal liability. TrevinoMartinez, 86 F.3d at 68. The fact that a criminal statute omits

any mention of intent does not mean that it will necessarily be

construed as eliminating that element from the crime denounced.

Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.

288 (1952). Instead, where a statute is silent as to intent, it

becomes a question of legislative intent to be construed by the
court. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66

L.Ed. 604 (1922).

 The Ninth Circuit analyzed the legislative history of § 1326

in Pena-Cabanillas and found nothing to support the proposition

that the government must prove specific intent. The power of

Congress to control immigration is plenary and vests Congress with

broad discretion in defining offenses in the area. PenaCabanillas, 394 F.2d at 788. "The right to exclude or to expel all

aliens or any class of aliens, absolutely or upon certain

conditions, is an inherent and inalienable right which is essential

to the safety, independence and welfare of every sovereign nation."

Id. Section 1326 is not based upon any common law crime but is a

regulatory statute enacted to assist in the control of unlawful

immigration by aliens. Id. Thus, the Ninth Circuit concluded that

the offense was a typical mala prohibita offense, and since it

denounces the doing of an act as criminal, if a defendant

voluntarily does the forbidden act, the law implies the intent.

Id. at 788-89 (citing United States v. Balint, 258 U.S. 250, 42

S.Ct. 301, 66 L.Ed. 604 (1922)). Moreover, several other

provisions of the same statute prohibit "willful" or "knowing"

actions. See Pena-Cabanillas, 394 F.2d at 789-90, n. 4. "Where

Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally

presumed that Congress acted intentionally and purposely in

excluding the particular language." See Russello v. United States,

464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983). Thus,

the Ninth Circuit concluded that specific intent is not an element
of § 1326.

We agree with the reasoning set forth above and find that

specific intent is not an element of the offense of illegal reentry

into the United States after deportation in violation of Title 8

U.S.C. § 1326. Appellant's alleged good faith belief that he had

the Attorney General's express permission to reenter the United

States is irrelevant. Accordingly, we affirm the trial court's

denial of appellant's request for a jury instruction on specific

intent. Turning to appellant's remaining two issues on appeal, we

uphold the trial court's rulings without discussion.

Accordingly, the judgment of the district court is AFFIRMED.