United States Court of Appeals For the First Circuit __________________________

No. 00-1068

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

PLÁCIDO CABRAL, ETC.,

Defendant, Appellant. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

_____________________

Before

Torruella, Chief Judge, Lipez, Circuit Judge, García-Gregory,* U.S. District Judge.

_____________________

Yasmín Irizarry, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, was on brief, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Chief, Criminal Division, Assistant United States Attorney, and Nelson Pérez- Sosa, Assistant United States Attorney, were on brief, for appellee.

_____________________

* Of the District of Puerto Rico, sitting by designation. June 12, 2001

_____________________

-2- GARCÍA-GREGORY, District Judge. Plácido Cabral was

convicted, following a jury trial, for attempting to re-enter the

United States after having been previously arrested and deported, in

violation of

. On appeal, Cabral argues that the

district court erred in denying his motion for acquittal because he did

not attempt to re-enter the United States, and because he lacked a

specific intent to do so, as the statute allegedly requires. Cabral

also contends that the district court erred by failing to instruct the

jury on specific intent as an element of the offense. We affirm.

BACKGROUND

In 1988, Cabral was arrested and deported to the Dominican

Republic. Prior to his deportation, the immigration authorities

explained to him the process by which he could seek permission to re-

enter the United States, which included obtaining consent from the

United States Attorney General before commencing travel to the United

States. When Cabral showed up at the detention facility prior to his

deportation, he did not have his alien resident card with him; thus, he

did not turn it over before returning to the Dominican Republic.

Following his deportation, the INS revoked Cabral’s resident alien

status, thereby invalidating his card, which had a 2002 expiration

date.

On May 19, 1999, Cabral arrived at the immigration booth at

the San Juan International Airport. Cabral handed the immigration

-3- inspector his invalid alien resident card, a Dominican passport lacking

any type of visa or other authorization to enter the United States, and

a Customs Declaration form featuring a Puerto Rico address as his

alleged “Place of Residence.” Cabral did not advise the authorities

about his deportation status at that time. When the immigration

inspector entered Cabral’s information into the system, he learned that

a person with Cabral’s name and birthdate had been previously deported.

As a result, Cabral was taken to a secondary inspection area. Once

there, the immigration inspectors retrieved from him a one-way ticket

from the Dominican Republic to Puerto Rico, and $4.10 in cash. Cabral

carried no credit cards.

The inspector asked Cabral whether he had experienced any

previous problems with the authorities, particularly the immigration

authorities. Cabral replied he had not. After taking his fingerprints

and advising him that a positive FBI match would be regarded as lying

to a federal law enforcement officer, the inspector asked Cabral

whether he wished to reconsider his answer. Cabral did so and

acknowledged his prior deportation. Cabral also admitted that he had

been advised about the need to obtain the express consent of the

Attorney General prior to re-entering the United States. Cabral

admitted that he had not yet sought a waiver, but said he wished to do

so at that time. Cabral was thereafter placed under arrest for

illegally seeking re-entry into the United States.

-4- On September 2, 1999, after a two-day trial, the jury found

Cabral guilty of violating

. The district court

sentenced Cabral to a prison term of 96 months, with a three-year

supervised release term.

STANDARD OF REVIEW

In determining the sufficiency of the evidence, “we view the

facts and witness credibility determinations, as well as draw

reasonable inferences, in favor of the government.” United States v.

Freeman,

(1st Cir. 2000). As long as the evidence,

taken as a whole, warrants a judgment of conviction, the evidence is

legally sufficient. Id.; see United States v. Olbres,

(1st Cir. 1995). Since Cabral timely objected to the district court’s

failure to instruct on specific intent as an element of the offense,

his challenge is subject to harmless error review. Scarfo v. Cabletron

Sys. Inc.,

(1st Cir. 1995).

DISCUSSION

The government charged Cabral with a violation

, which prohibits attempted re-entry into the United States by a

deported alien. In order to obtain a conviction for this offense, the

government was required to prove four elements:(1) that Cabral was an

alien at the time of the alleged offense;(2) that he had previously

been arrested and deported; (3) that he attempted to enter the United

States; (4) that he had not received the express consent of the

-5- Attorney General of the United States to apply for readmission to the

United States since the time of his previous arrest and deportation.

See United States v. Cardenas-Alvarez,

(5th Cir.

1993).

The principal question on appeal is whether the evidence

supports a finding that Cabral attempted to re-enter illegally into the

United States. Cabral does not dispute that he was an alien at the

time of his arrest, that he had been previously arrested and deported

to the Dominican Republic, and that he did not receive advance consent

from the Attorney General of the United States prior to arriving at the

port of entry. Nonetheless, Cabral contends that his intent was not to

re-enter the United States but rather to request permission at the port

of entry. Had the immigration inspectors informed him that he could

not obtain permission to enter at the port of entry, he argues, he

would have returned to the Dominican Republic.

The evidence presented at trial belies Cabral’s contention.

Upon his arrival at the port of entry, Cabral made no immediate effort

to inform the authorities about his deportation status. Instead, he

handed immigration authorities an invalid alien resident card (which

appeared valid on its face and had a 2002 expiration date), a Dominican

passport without a visa, and a Customs Declaration form with a Puerto

Rico address as his putative place of residence. At no point during

the time he spent at the initial inspection area did Cabral indicate

-6- that he was merely there to request a waiver from the Attorney General.

It was only at the secondary inspection point – and even then after

some prodding - that Cabral finally divulged his deportation status.

An alien who has been deported and, without prior

authorization, voluntarily approaches a port of entry and makes a false

claim of residency has attempted to re-enter the United States and,

therefore, has the required intent to support a conviction under §

1326. See United States v. Gracidas-Ulibarry,

(9th

Cir. 1999); Cardenas-Alvarez,

. Here, the evidence

supports a finding that Cabral’s actions were designed to convince the

immigration authorities that he was entitled to enter the United

States. Cabral sought to pass himself off as a legal resident by

making a false claim of residency at the port of entry.1 Moreover,

Cabral’s suggestion that he merely intended to request a waiver from

the Attorney General and, if rebuffed, to return to the Dominican

Republic, is disingenuous. The evidence shows that Cabral had only a

one-way ticket from Santo Domingo to Puerto Rico and less than five

1 It should also be noted that, in light of Cabral’s deportation status, he was required to obtain a visa from the Dominican authorities, in addition to the Attorney General’s consent, prior to departing to Puerto Rico. A visa would not have been required, however, had Cabral shown his seemingly valid alien resident card. Thus, it appears likely that he was able to depart from the Dominican Republic without a visa by using his canceled alien resident card.

-7- dollars in his possession – simply not enough to return, even if he

wanted to do so.

Cabral’s actions at the port of entry show that he attempted

to deceive the immigration authorities into allowing him to re-enter

the country. He knew that he was required to obtain permission from

the Attorney General prior to coming to the United States, but failed

to do so. He knew (or should have known) that his alien resident card

was no longer valid, yet he tried to use it at the port of entry. In

all likelihood, Cabral realized that the chances that he would obtain

permission were slim, and he decided to take a calculated risk in order

to meet with his family. Unfortunately, his strategy backfired. He

now must face the consequences of his actions. The evidence amply

supports the jury’s finding that Cabral attempted to re-enter the

United States in violation of

.

Cabral next contends that the government was required to

prove that he had a specific intent to re-enter the United States, and,

as a corollary, that the district court should have instructed the jury

on specific intent as an element of the offense. Cabral’s argument that

§ 1326 contains a specific intent requirement has not been well

received by the courts. Of the ten circuit courts that have considered

whether the government is required to prove that a defendant had a

specific intent to reenter the United States, nine have said it is not.

See United States v. Soto,

(1st Cir. 1997); see

-8- also United States v. Martus,

(2d Cir. 1998)(per curiam);

United States v. Espinoza-Leon,

(4th Cir. 1989); United

States v. Guzman-Ocampo,

(5th Cir. 2000); United States v.

Hussein,

(6th Cir. 1982); United States v. Gonzalez-

Chavez,

(8th Cir. 1997); United States v. Ayala,

(9th Cir. 1994); United States v. Hernandez,

(10th

Cir. 1982); United States v. Henry,

(11th Cir. 1997); cf.

United States v. Anton,

(7th Cir. 1982)(2-1

decision)(Posner, J., dissenting).

We need go no further. Even if we decided to entertain the

specific intent issue (which appears to have been squarely rejected by

the Soto Court in any event), the evidence here is sufficiently strong

to support a finding that Cabral specifically intended to re-enter the

United States.

Accordingly, the district court’s denial of Cabral’s motion

for acquittal, and the decision not to instruct the jury on specific

intent as an element of the offense, was proper.

CONCLUSION

The judgment of the district court is affirmed.

-9-