Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 CR 243 -- Milton I. Shadur, Judge.
Bauer, Cudahy, and Posner, Circuit Judges. Posner, Circuit Judge, dissenting.
This is an appeal from a judgment of conviction entered against the defendant, Rolf Wilhelm Otto Anton, for violating 8 U.S.C. § 1326, Reentry of Deported Alien. For the reasons explained below, we reverse that judgment.
The statute under which the defendant was charged provides:
(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,
shall be guilty of a felony, and upon conviction thereof, be punished by imprisonment of not more than two years, or by a fine of not more than $1,000, or both.
At trial, the Government introduced evidence indicating: (1) that the defendant is an alien; (2) that he had previously been arrested and deported; (3) that he was subsequently found in the United States; and (4) that a review of the records of the Immigration and Naturalization Service reflected that the Attorney General had not given Anton permission to reapply for admission to the United States. The defendant introduced evidence indicating that he reasonably believed he had obtained the necessary permission prior to his reentry. Essentially, he testified that after his original deportation he had a series of dealings with officials in the American Consulate as well as contacts with the INS office in Chicago and with the office of the Attorney General; and, as a result of those events, he obtained a new visa with which he gained readmission to the United States through a normal INS checkpoint. The Government challenged the relevancy of that evidence, arguing that the only question was whether Anton had actually received the express consent of the Attorney General.*fn1
At the close of testimony the district court adopted the following instruction:
In order to sustain . . . the offense charged in the indictment, the Government must prove each of three propositions beyond a reasonable doubt: First, that at the time alleged in the indictment the defendant was an alien. Second, that the defendant was arrested and deported from the United States to the Federal Republic of West Germany in pursuance of law on or about September 7, 1979. Third, that thereafter on or about October 16, 1980 the defendant was found unlawfully present in the United States in the Northern District of Illinois as charged. . . . In order to find that the defendant was unlawfully present in the United States, you would have to find from your consideration of all the evidence that the Government has proved beyond a reasonable doubt that before leaving from a place outside the United States to enter the United States, the defendant did not obtain the express consent of the Attorney General of the United States to reapply for admission to the United States. For that purpose you are instructed that you are not to take into consideration any evidence as to consent claimed by the defendant to have been obtained from any Government official who was not acting under the authority of the Attorney General, or any evidence as to consent claimed by the defendant to have been obtained after he had left a place outside the United States.
(Transcript of Proceedings of 7/21/81 at 299-300 (emphasis added).) This in effect precluded the defendant from arguing his "reasonable belief" defense.
Subsequently the jury found the defendant guilty of the offense charged. After denying the defendant's motion for a new trial, the court entered judgment to that effect. This appeal follows.
The defendant asserts that the district court denied him a fair trial by instructing the jury that, in determining whether he was unlawfully in the United States, it could not consider evidence relating to his belief that he had the consent of the Attorney General to reenter. He contends that such a belief, if reasonable, is a viable defense to the charge under section 1326.
The district court refused to recognize the defense, which is essentially one of mistake, on the ground that the crime charged "requires no showing of intent." Because we agree that a mistake defense is possible only if there is some "mental state required to establish a material element of the crime" that the mistake can negate, see W. LaFave & A. Scott, Criminal Law 356 (1972), our first inquiry must be whether the premise that criminal intent plays no part in the crime charged is sound.
On its face section 1326 does not mention intent. That omission, however, is not alone sufficient to establish that intent is irrelevant. United States v. United States Gypsum Co., 438 U.S. 422, 438, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978). When the terms of a statute are not clear and unequivocal, a reviewing court must construe the legislative intent of the enactment to resolve the ambiguity. United States v. Balint, 258 U.S. 250, 66 L. Ed. 604, 42 S. Ct. 301 (1922). The first step in that process is to consider the relevant legislative history. Prussian v. United States, 282 U.S. 675, 75 L. Ed. 610, 51 S. Ct. 223 (1931). In this case, that history is silent on the question at issue. See 1952 U.S. Code Cong. & Ad. News 1653. Thus it becomes necessary to turn to "principles derived from common law as well as precepts suggested by the American Law Institute [in the Model Penal Code]" for guidance. United States v. Bailey, 444 U.S. 394, 406, 62 L. Ed. 2d 575, 100 S. Ct. 624 (1980).
In reaching its conclusion that section 1326 has no intent requirement, the district court did not independently construe the statute in light of such factors. Rather, it adopted the analysis set forth in Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. ...