The opinion of the court was delivered by: Herndon, Chief Judge
Before the Court is the Government's Motion in Limine to Prohibit Defendant From Introducing Evidence Regarding His "Good Faith Belief" That He Could Re-enter the United States Lawfully, Subsequent to His Previous Deportation (Doc. 30). Defendant Victor M. Flores-Gonzalez has timely filed his Response (Doc. 32), to which the Government has replied (Doc. 34) and Defendant sur-replied (Doc. 35), making the issue is ripe for determination.
Defendant has been charged with "Illegal Re-entry Into the United States by an Aggravated Felon" in violation of 8 U.S.C. § 1326(a) and (b)(2). The Government anticipates that Defendant will present evidence that he reentered the United States upon a "good faith belief" that he was permitted to do so when he presented and identified himself at a border crossing station and was allowed to re-enter this country. The Government now moves for: (1) a protective order prohibiting Defendant from introducing evidence at trial of his "good faith" belief that he could re-enter this country lawfully, subsequent to his previous deportation; and
(2) that the Court set a Final Pretrial Conference to allow the Parties to argue the issue (Doc. 30). Responding, Defendant similarly believes that the evidence in this case will show that he presented himself at the Paso Del Norte Port of Entry in El Paso, Texas. Defendant states that he presented truthful identification to the Border Patrol agent, specifically, his I-551 (or "green card"), and was allowed to re-enter the United States (Doc. 32, p. 1). Yet, Defendant contends his re-entry was legal.
To sustain a charge of illegal re-entry by an aggravated felon into the United States, the Government must prove each of the following elements beyond a reasonable doubt:
(1) the Defendant was an alien at the time of the alleged offense;
(2) the Defendant had previously been deported from the United States;
(3) the Defendant was previously deported due to a conviction for the commission of an aggravated felony;
(4) the Defendant knowingly and intentionally reentered the United States; and
(5) the Defendant did not obtain the express consent of the Attorney General of the United States to apply for readmission to the United States after having been deported.
8 U.S.C. § 1326(a); see also United States v. Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006); (Doc. 30, p. 2; Doc. 32, p. 4).
Citing to both United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir. 2001) and United States v. Rea-Beltran, 457 F.3d 695 (7th Cir. 2006), the Government contends that Defendant's "good faith belief" is not a legitimate defense against a violation of 8 U.S.C. § 1326, because it is regarded as a type of strict liability offense. Reviewing these cases and other relevant case law, the Court agrees that Seventh Circuit precedent clearly holds that a defendant's good faith but mistaken belief that he had permission to re-enter the United States after deportation is not a defense. See Carlos-Colmenares, 253 F.3d at 278 (overruling its holding in United States v. Anton, 683 F.2d 1011 (7th Cir. 1982) to align with positions taken by majority of other appellate circuits). The Court finds no contravening precedential case law or other statutory authority.
While "intent to re-enter" is an element (to safeguard against situations where a defendant may be transported into the country against his will), this is the extent of it. Id. What is not requisite is that the Government prove Defendant's intent to re-enter without the Attorney General's express consent. Id. The Seventh Circuit is very clear that a previously deported alien who wishes to re-enter this country legally should not try to confer the Attorney General's "express consent" from "ambiguous circumstances." Id. at 279. Carlos-Colmenares went so far as to state that even when a defendant was able to obtain a visa from the American Consulate, this would not amount to "express consent." Accordingly, "[a] person who has been deported from the United States can avoid any risk of violating 8 U.S.C. § 1326 just by not returning to the United States; he knows he is not welcome. If nevertheless he decides to return, he had better make sure he has the Attorney General's express consent." Id. at 279-80. Rea-Baltran is a more recent Seventh Circuit opinion, which follows the holding in Carlos-Colmenares that even a mistaken belief would not offer a defendant a defense to the charge of violating § 1326. Rea-Baltran, 457 F.3d at 702.
Defendant, in his Response, contends that a factual dispute exists regarding whether the Government can prove beyond a reasonable doubt that he failed to obtain the consent of the Attorney General to reapply for admission to the United States after his prior deportation (Doc. 32, p. 4). Further, Defendant believes this factual dispute should be left for a jury to determine. In support, Defendant asserts that his is not a case of "illegal re-entry." He claims he did not, for example, present false documents or give a false name to the Border Patrol agent when attempting to re-enter the United States at the port of entry. Nor did he attempt to elude inspection of immigration officials or use any other illegal means of re-entry into this country (Id.). Instead, Defendant contends that he presented ...