Sunday, December 04, 2005

Case o' The Week: Can't go to jail when you want to, Lombera-Valdovinos

A great decision on weird facts: Judge Raymond Fisher (left) finds a defendant did not have the necessary mens rea for attempted illegal reentry when the alien entered with the intention of being incarcerated. See United States v. Lombera-Valdovinos, __ F.3d. __, 2005 WL 2005 WL 3183734 (9th Cir. Nov. 30, 2005), available here.

Players: Judge Raymond Fisher writes; Rymer vigorously dissents.

Facts: Lombera-Valdovinos wanted incarceration when he attempted to illegally reenter the United States. 2005 WL 3183734, *1. He walked up to a border guard after crossing the border, asked to go to an immigration judge, and said he wanted to go to jail. Id.

Issue(s): “We consider the question of whether it is possible to convict a previously deported alien for attempted illegal reentry into the United States under 8 U.S.C. § 1326 when he crosses the border with the intent only to be imprisoned.” Id.

Held: “We conclude that it is not, because attempted illegal reentry is a specific intent crime that requires proof of intent to enter the country free from official restraint. The government, operating under a misconception about the meaning of official restraint, failed to introduce evidence to support a finding of such intent, so we must reverse.” Id. at *1. “With this proper understanding of the scope of official restraint in mind, it is clear that an alien who is under official restraint from the moment of crossing, and who never intended to avoid or change that status, cannot therefore have the necessary intent to be guilty of attempted illegal reentry. This precisely describes the defendant's actions and intent here – as the prosecution itself argued to the jury, but on the faulty premise that intent to go to jail was intent to be free of official restraint.” Id. at *3.

Of Note: Oddly, attempted illegal reentry is one of the few meaningful bastions of mens rea requirements in federal criminal law. See, e.g., United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc) (holding that attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime). Being “found in” the United States, by contrast, has no specific intent provision. Pena-Cabanillas v. United States, 394 F.2d 785, 790 (9th Cir. 1968). Good luck explaining to your illegal reentry client why, if caught coming in, he may have a mens rea defense – but not if he’s caught further away from the border.

How to Use: The best mens rea opinions in the Ninth, of late, have been attempted illegal reentry cases. See e.g, Gracidas-Ulibarry, 231 F.3d 1188; United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005). If you’re lucky enough to be defending a specific intent crime, take a look at this line of cases for some great language. For example, in the present case – Lombera-Valdovinos – dissenting Judge Rymer is appalled that this conviction doesn’t stick. 2005 WL 3183734, *3. The opinion is, however, consistent with all of the previous mens rea attempted reentry decisions. Thus, use this line of authority to show that when specific intent is an element, it has bite: the Ninth has shown great deference to that mens rea element in attempted reentry cases.

For Further Reading: Judge Raymond C. Fisher took the bench in 2000 after his appointment by Clinton. A Supreme Court clerk and Heller Ehrman attorney, Judge Fisher had served in the number three spot at DOJ under Clinton. See Ninth Circuit article here. Some Clinton appointees who have come out of prosecutor’s offices seem more hostile to the criminal defense bar than their conservative, Bush-appointed, colleagues. Judge Fisher, however, has proven an interesting exception. He has lobbied hard for better legal proceedings for immigrants. See article here. He is active in dispute resolution activities. See article here. And Fisher would have let a cop sue his Police Department, when the officer was fired for selling internet porn of himself masturbating. see article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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