United States v. Lara Soto ( 1997 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS



                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT



                                 ____________________



        No. 96-1855



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                  ELIEZER LARA SOTO,



                                      Appellant.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Steven J. McAuliffe, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
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                     Aldrich and Campbell, Senior Circuit Judges.
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                                 ____________________



            Richard N. Foley for appellant.
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            Jean B. Weld, Assistant United States  Attorney, with whom Paul M.
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        Gagnon, United States Attorney, was on brief for appellee.
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                                 ____________________



                                  February 12, 1997

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                      ALDRICH, Senior Circuit  Judge.  Defendant  Eliezer
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            Lara Soto (hereinafter defendant), a citizen of the Dominican



            Republic, unlawfully entered the  United States in 1986.   He



            was deported in  November 1993.   He subsequently obtained  a



            visa and reentered in August 1994 without having obtained the



            necessary permission of the  Attorney General, a violation of



            8  U.S.C.   1326.1  After  a three day  jury trial, defendant



            was found guilty.



                                          I.



                      Prior to trial, defendant moved to quash or dismiss



            the  indictment by  attacking  the earlier  deportation order



            entered after a hearing in his absence, on the ground of lack




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            1.  Title 8  U.S.C.   1326  provides that an  offense against

            the United States occurs when:



                      (a) [A]ny 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 . . . .



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            of  notice.  According to the defendant, he failed to receive



            either   of  two   letters  sent   by  the   Immigration  and



            Naturalization  Service  ordering  him  to  appear  first  on



            December  1, 1992 and  again on January  5, 1993.   The court



            denied  the motion,  finding that  certified mail  notice had



            been  given to  defendant's  proper address  with the  return



            receipt bearing his signature, which the court found genuine.



            Nor would  he have had any  defense on the merits.   We agree



            that the deportation order was valid.



                                         II.



                      Defendant's  only  other  defense  to  the  present



            prosecution was  his testimony that he entered in good faith,



            believing that  his visa constituted the required permission.



            The court instructed the jury that it  was not, and that good



            faith was not a defense.



                      The district  court noted that of  all the circuits



            considering this statute, only  the Seventh Circuit in United
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            States  v. Anton, 683 F.2d  1011, 1014 (7th  Cir. 1982) (2-1)
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            required the government to show specific intent.  We are more



            impressed  with dissenting  Judge Posner's  thinking  that an



            alien who  has broken our laws  once should not  be given the



            benefit of the doubt.  See id. at 1019-22 (collecting cases).
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            It  is  appropriate that  the reentry  law  have teeth.   The



            appeal is without merit.



                      Affirmed.
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