The Honorable Ronald E. Longstaff, United States District Judge for the

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Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1094

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Ramon Gonzalez-Chavez, *

*

Appellant. *

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Submitted: May 20, 1997

Filed: July 28, 1997

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Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

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BOWMAN, Circuit Judge.

Ramon Gonzalez-Chavez was convicted, following a jury trial, of being found

in the United States without lawful permission after having been previously arrested

and deported, a violation of 8 U.S.C. § 1326(a) (1994). On appeal, Gonzalez-Chavez

argues that the District Court erred by prohibiting him from presenting evidence of his 1

good faith belief that he could lawfully reenter the United States after his deportation.
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He also argues that the District Court's exclusion of this evidence amounted to a denial

of his constitutional right to testify on his behalf. We affirm. 

We review a district court's decision to exclude evidence for abuse of discretion.

See United States v. Blumeyer, 114 F.3d 758, 770 (8th Cir. 1997). Gonzalez-Chavez

challenges the District Court's grant of the government's motion in limine to exclude

any testimony or other evidence concerning Gonzalez-Chavez's belief that he could

lawfully reenter the United States after his deportation. The District Court determined

that Gonzalez-Chavez's belief was irrelevant under § 1326(a), which provides that "any

alien who . . . has been arrested and deported . . . and thereafter . . . enters, attempts

to enter, or is at any time found in, the United States" is subject to fine, imprisonment,

or both, unless "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." The statute on its face

does not speak to the issue of criminal intent, and the court declined to read a specific

intent element into the statute. Accordingly, the court did not allow Gonzalez-Chavez

to present evidence of his alleged good faith, albeit mistaken, belief as to the lawfulness

of his return to the United States. Gonzalez-Chavez contends that a specific intent

element does exist under § 1326(a); therefore, he argues, evidence of his belief as to

whether he had the Attorney General's express permission to reenter the United States

is relevant, and its exclusion constituted an abuse of the District Court's discretion.

In support of this contention, Gonzalez-Chavez relies on United States v. Anton,

683 F.2d 1011 (7th Cir. 1982) (2-1 decision) (Posner, J., dissenting). In Anton, the

court held that specific intent (i.e., whether a defendant had the intent to reenter the

United States unlawfully) is an element under § 1326. See id. at 1017. Thus, evidence

concerning Anton's belief that he had obtained the necessary permission to reenter the

United States was relevant. The court then allowed Anton to defend against the charge

that he violated §1326 by proving an objectively reasonable mistake concerning the

existence of express permission from the Attorney General.
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Gonzalez-Chavez's reliance on Anton, however, is misplaced. First of all, unlike

Anton, Gonzalez-Chavez cannot establish an objectively reasonable mistake or a good

faith belief as to the existence of the Attorney General's express permission to reenter

the United States. Anton presented evidence to support his belief that he had the

express consent of the Attorney General--namely, testimony that since his deportation

he had numerous dealings with officials in the American Consulate, the local

Immigration and Naturalization Service (INS) office, and the Attorney General's office,

and that as a result of those dealings he had acquired a new visa and gained

readmission to the United States through an ordinary INS checkpoint. See id. at 1013.

The evidence that Gonzalez-Chavez marshals to support his belief that he had the

express consent of the Attorney General falls far short in comparison. GonzalezChavez bases his alleged good faith belief on his possession of a green card issued

prior to his deportation and on the existence of several documents obtained since his

return to the United States, including an employment application, an Iowa nondriver

identification card, a marriage certificate, and an identification card issued by his

employer. While a green card allows an alien to live and work in the United States,

Gonzalez-Chavez's green card became void at the time of his deportation, and although

the green card and each of the aforementioned documents correctly states GonzalezChavez's name, social security number, date of birth, and other requested information,

none of the items addresses the issue of the Attorney General's necessary express

consent. Gonzalez-Chavez has alleged no post-deportation contact, much less

discussions, with anyone in the Attorney General's office, with any other governmental

official, or with any attorney regarding the necessary permission to return to the United

States. Because Gonzalez-Chavez has not pointed to any evidence in the record that

in fact supports an objectively reasonable belief on his part that he had the express

consent of the Attorney General to return to the United States, he cannot successfully

claim that under the Anton rationale the exclusion of his evidence amounted to

prejudicial error. See United States v. Espinoza-Leon, 873 F.2d 743, 746 n.2 (4th Cir.)

(remarking that defendant's erroneous legal conclusion concerning his lawful presence

in the United States could not form the basis of an objectively reasonable belief where,
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inter alia, the "defendant had no contact with the Justice Department or with an

attorney" prior to his return), cert. denied, 492 U.S. 924 (1989).

Moreover, Anton's holding that a specific intent element exists under § 1326 has

not been well-accepted by the courts. Not only was Anton decided by a divided panel

over a dissent by Judge Posner, but each of the eight other circuit courts of appeals that

have considered whether the government must prove that a defendant had the specific

intent to reenter the United States unlawfully have squarely rejected the proposition.

See United States v. Henry, 111 F.3d 111, 114 (11th Cir. 1997); United States v. Soto,

106 F.3d 1040, 1041 (1st Cir. 1997), petition for cert. filed, No. 96-9030 (U.S.

May 13, 1997); United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996), cert.

denied, 117 S. Ct. 1109 (1997); United States v. Ayala, 35 F.3d 423, 426 (9th Cir.

1994), cert. denied, 514 U.S. 1019 (1995); Espinoza-Leon, 873 F.2d at 745; United

States v. Hernandez, 693 F.2d 996, 1000 (10th Cir. 1982), cert. denied, 459 U.S. 1222

(1983); United States v. Newton, 677 F.2d 16, 17 (2d Cir.) (per curiam), cert. denied,

459 U.S. 850 (1982); United States v. Hussein, 675 F.2d 114, 116 (6th Cir.) (per

curiam), cert. denied, 459 U.S. 869 (1982). In fact, a number of these courts have

specifically rejected a defense involving a good faith belief or reasonable mistake as

to the existence of the Attorney General's permission. See Henry, 111 F.3d at 114

(determining that defendant's "alleged good faith belief that he had the Attorney

General's express permission to reenter the United States is irrelevant"); Soto, 106 F.3d

at 1041 (holding that good faith belief that visa constituted the required permission of

Attorney General is not a defense to prosecution under § 1326); Trevino-Martinez, 86

F.3d at 69 (concluding "that § 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. Champegnie, 925 F.2d 54, 55 (2d Cir. 1991)

(holding "that a good faith or mistake defense does not exist under Section 1326").

We agree with those courts that have held that specific intent is not an element

of the offense in § 1326 prosecutions. Section 1326 is silent on the issue of criminal
While a good faith belief or reasonable mistake defense is unavailable under

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§ 1326, we note that a defendant may argue that he, in fact, had the express permission

of the Attorney General to be present in the United States. Gonzalez-Chavez, however,

does not advance, nor does the evidence support, such an argument here.

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intent, and while statutory silence alone does not necessarily dictate that intent is not

an element of the stated crime, see Morissette v. United States, 342 U.S. 246, 262

(1952), nothing in the legislative history of § 1326 supports inferring an element of

specific intent, see Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir. 1968)

(analyzing the legislative history and concluding that "[i]t would be absurd . . . to think

that Congress inadvertently left 'intent' out of Section 1326"). To the contrary, the use

of express language concerning specific intent in other provisions of the Immigration

and Nationality Act, 8 U.S.C. § 1101-1524 (1994 & Supp. I 1995), suggests that

Congress intended to establish a mala prohibita offense "to assist in the control of

unlawful immigration by aliens." Pena-Cabanillas, 394 F.2d at 788; see also id. at 789

& n.4 (referring to 8 U.S.C. §§ 1287, 1306, 1324, 1325, 1327, and 1328). "[W]here

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 acts intentionally and

purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S.

16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.

1972)) (alteration in Russello). Because the statute "denounces the doing of an act as

criminal, if a defendant voluntarily does the forbidden act [(reenters the United States

without express permission from the Attorney General)], the law implies the intent."

Pena-Cabanillas, 394 F.2d at 788-89.

Accordingly, evidence of specific intent is irrelevant to an action under § 1326,

and the District Court did not abuse its discretion by so finding and by prohibiting

Gonzalez-Chavez from presenting evidence of his alleged good faith belief that he

could lawfully reenter the United States. See United States v. Leon-Leon, 35 F.3d

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1428, 1433 (9th Cir. 1994) (holding that district court did not abuse its discretion by

denying admission of evidence concerning defendant's reasonable belief that he had 
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permission to reenter the United States based on possession of a green card); United

States v. Ramos-Quirarte, 935 F.2d 162, 163 (9th Cir. 1991) (per curiam) (holding that

defendant's procurement of special agricultural worker status subsequent to "his return

to the United States is in no way a defense to the charge that his return itself was

illegal").

 Gonzalez-Chavez next argues that because the District Court prevented him from

testifying on the issue of his good faith or reasonable belief as to the lawfulness of his

return to the United States, the court erroneously denied him the right to testify on his

own behalf. We reject this argument. While a defendant has "the right to take the

witness stand and to testify in his . . . own defense," Rock v. Arkansas, 483 U.S. 44,

49 (1987), this right is not unlimited, see id. at 55. "[T]hat the proffered testimony

should have relevance to something the jury must decide is clearly an appropriate

restriction." United States v. Gleason, 980 F.2d 1183, 1185-86 (8th Cir. 1992).

Because we have determined that evidence of Gonzalez-Chavez's good faith belief is

irrelevant to his § 1326 prosection, his argument must fail. Gonzalez-Chavez was free

to testify about matters relevant to the proceedings, but he chose not to avail himself

of the opportunity. See id. at 1186 (holding that court's decision only excluded

testimony concerning outrageous government conduct and that it was defendant's

decision not to testify about other matters).

The judgment of the District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.