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UNITED STATES v. NWENE

August 26, 1998

UNITED STATES OF AMERICA
v.
SAMUEL DOZIE NWENE, Defendant.



The opinion of the court was delivered by: SIMANDLE

SIMANDLE, District Judge:

 Presently before the court in this criminal case are numerous pre-trial motions by the defendant, in connection with defending upon a charge that he attempted to re-enter the United States after having been deported, subsequent to a conviction, for the commission of an "aggravated felony," in violation of 8 U.S.C. §§ 1326(a) & 1326(b)(2). Defendant seeks an order (1) permitting evidence of his good faith belief that he was eligible for asylum and lacked the specific intent to violate the statute barring reentry; (2) permitting evidence in support of a "justification" or "necessity" defense; (3) redacting from the indictment certain surplusage; (4) precluding the application of the enhanced sentencing provision under § 1326(b)(2) as inapplicable to redefining prior crimes for which an alien was convicted prior to the statute's effective date; and (5) precluding exposure to a sentence, in the event of conviction, of more than two years. Several of these issues require the court to examine the nature of the criminal intent, if any, that must be shown to prove the offense of unlawful reentry, and whether defendant's evidence of an alleged good faith belief in the propriety of the reentry to obtain asylum, or to demonstrate an alleged necessity to reenter to seek asylum, should be permitted at trial.

 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

 A. Indictment

 On November 6, 1997, defendant Samuel Dozie Nwene was indicted for knowingly and wilfully attempting to enter and entering the United States in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). *fn1" (Indictment P 4.) Specifically, the indictment charges that Nwene had previously been deported from the United States subsequent to a conviction for the commission of a crime that is now classified as an "aggravated felony". (Id. PP 1-2.) The indictment charges that when defendant attempted to reenter the United States on July 14, 1997, he acted in violation of 8 U.S.C. § 1326(a), because the Attorney General had not expressly consented to Nwene reapplying for admission to the United States. (Id. P 3.)

 B. Factual Background

 Defendant Samuel Nwene, a Nigerian natural, was convicted of bank larceny and conspiracy to commit bank larceny and was sentenced in the United States District Court for the Northern District of New York on June 19, 1987, at which time he was sentenced to serve concurrent sentences of five years on each count. After release from imprisonment, he allegedly voluntarily left the United States and returned to Nigeria.

 Defendant reentered the United States again in 1992, but was immediately deported. Defendant was apparently warned at that time that returning to the United States within five years of deportation without permission is a felony, punishable by imprisonment of "not more than two years and/or a fine of not more that $ 1,000.00."

 Defendant most recently entered the United States on July 14, 1997 at Newark International Airport, on Northwest Airlines from Amsterdam, the Netherlands. (Def.'s Br. at 2.) According to defendant's proffer, he arrived at the airport, was questioned by officers of the Immigration and Naturalization Service ("INS"), and he admitted that he was actually carrying a passport that belonged to a relative, and explained that he had left Nigeria because he feared for his life. (Id. and Ex. A thereto.) At an INS interview on July 22, 1997, the INS officer concluded that Nwene had established that he had a credible fear of persecution in his home country, and that there was therefore a significant possibility that he could establish eligibility for asylum. (Id. and Ex. B thereto, at PP 1.20, 8.01, 8.16.) This conclusion was reached after defendant described to the INS officer the story of his previous imprisonment and torture in Nigeria. (Id. and Ex. C thereto.) According to defendant, he was persecuted because of his involvement in the Campaign for Democracy and because of his father's role as an organizer in a labor union that had been banned by the government. (Ex. C to Def.'s Br. at p. 3.) Defendant described in detail the physical torture he claimed to have undergone, and stated that among other injuries sustained, he had been hospitalized for six months with a broken neck because he had fallen while being hung by the waist and whipped. (Id.) He asserted that there was an arrest warrant outstanding against him in Nigeria. (Id. at 4.) The interviewing INS Officer found defendant's testimony to be credible, and found that "there is a significant possibility that he will be harmed if he returns to Nigeria." (Id. at 6.)

 Defendant filed an application for asylum with the United States Department of Justice, Immigration Court in Newark. (Def.'s Br. at 4.) He remained in detention throughout. (Id.) Subsequent to filing his application for asylum, on November 6, 1997, an indictment was filed, charging defendant with illegal entry into the United States following deportation and removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). (Id. at 4-5.) On November 21, 1997, Immigration Judge Henry Dogin dismissed Nwene's asylum petition because Nwene was detained and unable to appear at the proceedings.

 C. Procedural Background

 Following his indictment on November 6, 1997, defendant was arraigned on November 10, 1997 and was ordered detained. The matter was assigned to this court, and defendant then brought the instant pretrial motions. A hearing on the motions was held on May 8, 1998. The court reserved decision on several of the motions, and required supplemental briefing thereon. *fn2" The court now addresses the remainder of defendant's motions, on which we had reserved decision.

 II. DISCUSSION

 A. Motion to Permit Evidence of Defendant's Reasonable Belief that he was Eligible for Asylum and that he Therefore Lacked the Requisite Intent to Violate the Statute

 Defendant argues that although silent on the issue of intent, 8 U.S.C. § 1326 should be interpreted to require a specific intent, *fn3" and that he should be permitted to raise the defense that he lacked the requisite intent. Although the briefing regarding intent has been less than crystal clear, *fn4" it appears both parties agree that at the very least, Section 1326 is a general intent statute. That is, the parties agree that the United States must prove that the defendant's act of entering or attempting to enter the United States was a voluntary act. This interpretation is well supported by the caselaw. See e.g., United States v. Gonzalez-Chavez, 122 F.3d 15, 17-18 (8th Cir. 1997); United States v. Henry, 111 F.3d 111, 114 (11th Cir.), cert. denied, U.S. , 118 S. Ct. 237 (1997); United States v. Ortiz-Villegas, 49 F.3d 1435, 1437 (9th Cir.), cert. denied, 516 U.S. 845 (1995); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.), cert. denied, 492 U.S. 924 (1989). *fn5" These cases establish that regardless of whether a court labels Section 1326 a "strict liability" statute or a "general intent" statute, in order to obtain a conviction under 8 U.S.C. § 1326, the government must prove, inter alia, that the defendant entered the United States voluntarily. Thus, for example, if a previously deported or excluded alien were kidnaped and carried into this country unknowingly or unwillingly, that person would not be liable under Section 1326, as the physical act of entering would not have been voluntary.

 Defendant asserts, however, that the statute requires not only a voluntary act of reentry or attempted reentry, but also a specific intent to knowingly reenter illegally -- that is, an intent to reenter while knowing that the alien is not allowed to reenter the United States. Contrary to defendant's position, the great majority of circuits have held that the government need not prove that the defendant knew it was illegal for him to enter the United States. See, e.g., United State v. Torres-Echavarria, 129 F.3d 692, 697 (2d Cir. 1997), cert. denied, 118 S. Ct. 1177 (1998); Gonzalez-Chavez, 122 F.3d at 16-17 (8th Cir. 1997); United States v. Martinez-Morel, 118 F.3d 710, 717 (10th Cir. 1997); Henry, 111 F.3d at 113-14 (11th Cir. 1997); United States v. Asibor, 109 F.3d 1023, 1035-36 (5th Cir.) cert. denied, U.S. , 139 L. Ed. 2d 182, 118 S. Ct. 254 (1997); United States v. Soto, 106 F.3d 1040, 1041 (1st Cir.), cert. denied, U.S. , 118 S. Ct. 94 (1997); Ortiz-Villegas, 49 F.3d at 1437 (9th Cir.), cert. denied, 516 U.S. 845, 116 S. Ct. 134 (1995); Espinoza-Leon, 873 F.2d at 746 (4th Cir.), cert. denied, 492 U.S. 924 (1989); United States v. Hussein, 675 F.2d 114, 116 (6th Cir.), cert. denied, 459 U.S. 869, 74 L. Ed. 2d 129, 103 S. Ct. 154 (1982). One result of this holding is that there is no good faith defense available for a defendant who ...


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