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United States v. Anton

decided: October 26, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROLF ANTON, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 860-1 -- James H. Alesia, Judge.

Cudahy and Flaum, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn*

Author: Cudahy

CUDAHY, Circuit Judge

Defendant Rolf Anton, no stranger to this court, appeals his conviction under 8 U.S.C. section 1326 of unlawfully being present in the United States after having been arrested and deported. We affirm.

I.

The facts of this case are not complex. Rolf Anton, a citizen of the Federal Republic of Germany, was arrested and deported in 1984, 1985 and 1986 for violating United States immigration laws. During each deportation proceeding, officials of the Immigration and Naturalization Service (the "INS") explained to Anton that any future appearances in this country without permission from the Attorney General would constitute a felony. Undeterred, Anton entered this country three days after his December 1986 deportation by walking across the American-Canadian border near Blaine, Washington. Finally, on November 6, 1987, Anton surrendered to an INS agent in Chicago and requested that he be sent back to West Germany. INS Special Agent Joseph Gardsbane arrested Anton that same day for violating 8 U.S.C. section 1326, and a jury sitting in the Northern District of Illinois returned a guilty verdict on March 15, 1988. Four months later, the district court sentenced Anton to a term of eight months imprisonment, with credit for time served.

Anton now challenges his conviction, claiming that the district court erred by excluding evidence concerning the amnesty provisions of the Immigration Reform and Control Act of 1986, Pub.L.No. 99-603, 100 Stat. 3359 (1986). Specifically, Anton charges that the district court's refusal to allow his attorney to cross-examine an INS agent on these amnesty provisions and its exclusion of certain documents amount to reversible error.

II.

At the core of Anton's analysis is our decision in United States v. Anton, 683 F.2d 1011 (7th Cir. 1982) ("Anton I"). There, we considered whether the provisions of section 1326 allow an alien to present a limited mistake of law defense to the charge of unlawfully being present in the United States. Section 1326 provides:

Any 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,

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.

8 U.S.C. ยง 1326.*fn1 In construing this provision, we explained that in order to demonstrate a violation of section 1326, the government must establish "(1) that the accused is an alien; (2) that he previously was arrested and deported according to law;*fn2 and (3) that he subsequently was found unlawfully in the United States." Anton I, 683 F.2d at 1016 (footnote supplied); see Pena-Cabanillas v. United States, 394 F.2d 785, 789 (9th Cir. 1968). Further, we held that even if the government could establish these three factors, a defendant might nonetheless successfully challenge his arrest by proving that he "reasonably believed that he had the consent of the Attorney General to re-enter the United States." Anton I, 683 F.2d at 1018 (emphasis in original). However, we limited this "mistake of law" defense to situations in which "the accused's mistake [is] objectively reasonable under the circumstances presented." Id.; see United States v. Moore, 627 F.2d 830, 833 (7th Cir. 1980), cert. denied, 450 U.S. 916, 67 L. Ed. 2d 342, 101 S. Ct. 1360 (1981); see also United States v. Witvoet, 767 F.2d 338, 340 (7th Cir. 1985) (reaffirming Moore). Because the ...


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