IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL ACTION

) NO.

xxxxxxxxxxxx )

__________________________________________)

DEFENDANT'S RESPONSE TO GOVERNMENT'S

MOTION IN LIMINE

COMES NOW xxxxxxxxxx, by and through undersigned counsel, and shows the following in response to the Government's Motion in Limine.

BACKGROUND

Mr. xxxxxxxxx is charged in a two-count indictment with violations of the immigration laws. Specifically, Mr. xxxxxxxxx is charged under 8 U.S.C. §1325 with making willfully false and misleading misrepresentations and willful concealment of material facts in seeking admission into the United States. Mr. xxxxxxxxx is also charged with unlawful entry after deportation in violation of 8 U.S.C. §1326.

Mr. xxxxxxxxx first entered the United States in 1985, when he came to Atlanta to study at Clarke-Atlanta University. Mr. xxxxxxxxx entered the country with an F-1 Student Visa. The Government contends that Mr. xxxxxxxxx was found working in the country, in violation of the terms of his Student Visa. At that time, Mr. xxxxxxxxx was asked to voluntarily depart the United States, which he did. The Government contends that Mr. xxxxxxxxx's Student Visa was cancelled, although there is no documentation in Mr. xxxxxxxxx's immigration file supporting this contention.

Mr. xxxxxxxxx returned to the United States in July of 1991, when he entered the country under the Visa Waiver Pilot Program. Under this program, a person is allowed to remain in the country for up to 90 days. Mr. xxxxxxxxx overstayed.

In August of 1992 Mr. xxxxxxxxx was questioned by INS agents. As a result of this interrogation, INS took action against Mr. xxxxxxxxx. The nature of the actions taken by the INS are at issue in this case. The Government contends that Mr. xxxxxxxxx was deported in August of 1992. Conversely, Mr. xxxxxxxxx does not believe he was deported in August of 1992. The defense expects to prove at trial that no deportation hearing was held in 1992. Moreover, Mr. xxxxxxxxx was never taken before an immigration judge. Finally, Mr. xxxxxxxxx expects to show at trial that in 1992 he was informed by INS agents that if he went back to England (his home country) he could immediately return to the United States.

Mr. xxxxxxxxx returned to the United States in September of 1992 and July of 1995. At the time of each entry, he presented his passport and was admitted into the United States.

At trial Mr. xxxxxxxxx expects to raise two defenses. First, Mr. xxxxxxxxx expects to show that he did not know that he was deported and that he did not know that his Student Visa had been cancelled. He filled out forms seeking entry into the country to the best of his ability, without realizing that he was filling out the forms incorrectly. Thus, Mr. xxxxxxxxx lacked the intent necessary to violate the law. Second, Mr. xxxxxxxxx intends to raise a defense of entrapment by estoppel. Mr. xxxxxxxxx will show that in 1992 INS agents informed him that he could return to the United States. Thereafter every time that Mr. xxxxxxxxx arrived in the United States and presented the passport under which he had been allegedly deported, he was granted permission to enter the country. Relevant case law authorizing Mr. xxxxxxxxx to raise these defenses is discussed below.

ARGUMENT AND AUTHORITY

"Generally, courts should not prohibit a defendant from presenting a theory of defense to the jury." United States v. Thompson, 25 F.3d 1558, 1564 (11th Cir. 1994). "[T]he defendant 'is entitled to have presented instructions relating to a theory of defense for which there is any foundation in evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.'" United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (quoting United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972).

I. Mr. xxxxxxxxx should be allowed to present evidence that he lacked the intent necessary to violate the law.

Mr. xxxxxxxxx is charged with violations of 8 U.S.C. §1325 and 1326. 8 U.S.C. §1325 states in relevant part:

Any alien who... obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact shall... be guilty of a misdemeanor....

The Eleventh Circuit, in its Pattern Jury instructions, states that "willfully ... means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids; that is with bad purpose either to disobey or disregard the law." 11th Cir. Pattern Jury Instruction 9.1. Clearly, a violation of 8 U.S.C. §1325 as charged in this case is a specific intent crime. The Defendant's state of mind is at issue. Accordingly, the defense should not be precluded from presenting evidence that bears on Mr. xxxxxxxxx's intent.

The Government contends that Mr. xxxxxxxxx should be precluded from presenting evidence of intent because 8 U.S.C. §1326 is a general intent statute. ⁽¹⁾ There is a split in the Circuits concerning whether 8 U.S.C. §1326 is a general intent statute or a specific intent statute. The Eleventh Circuit has not ruled on this issue.

The Seventh Circuit, for example, does not consider §1326 a general intent statute. To the contrary, the Seventh Circuit in United States v. Anton, 683 F.2d 1011 (7th Cir. 1982), held that specific intent was required under §1326. The defendant in Anton introduced evidence that he reasonably believed that he had obtained the necessary Attorney General's permission prior to his reentry. He testified that after his original deportation hearing he had a series of dealings with officials in the American Consulate as well as contacts with the INS 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 legal port of entry. In Anton, after finding that §1326 required a showing of specific intent, the court concluded that the defendant should be permitted to raise a mistake of law defense. Id. at 1014-1017.

The facts of this case are similar to the facts of the Anton case. Mr. xxxxxxxxx expects to prove at trial that in 1992 he was told by INS agents that as soon as he arrived to the United Kingdom he could return to the United States. Moreover, every time Mr. xxxxxxxxx presented his passport at a port of entry, he was allowed into the country. Mr. xxxxxxxxx expects to prove at trial that the Government, through the actions of the INS agents, consented to Mr. xxxxxxxxx's return to the United States. Finally, like in Anton, Mr. xxxxxxxxx had a reasonable belief that he could return to the United States at any time.

The Government relies primarily on United States v. Trevino-Martinez, to seek the exclusion of Mr. xxxxxxxxx's defense in this case. United States v. Trevino-Martinez, 1996 WL 306755 (5th Cir. 1996). To the extent that Trevino-Martinez does not involve 8 U.S.C. §1325, a specific intent crime, the case is inapposite. Moreover, as will be shown below, the case is in conflict with Eleventh Circuit precedent.

II. Mr. xxxxxxxxx is entitled to raise entrapment by estoppel as a defense.

In the alternative to intent, the Defendant will raise a defense of entrapment by estoppel. The defense of entrapment by estoppel is a viable defense even to a strict liability offense. United States v. Hedges, 912 F.2d 1397 (11th Cir. 1990). In Hedges the defendant was charged with taking government action while having a conflicting financial interest in violation of 18 U.S.C. §208(a). The Government argued that the defendant was precluded from raising an entrapment by estoppel defense. The Eleventh Circuit held that this was a permissible defense stating as follows:

The government next submits that Section 208(a) has no requirement of specific intent as a requisite mental state, and accordingly, reliance on advice of counsel is not a defense.... We have already pointed out that this is not a reliance on advice of counsel case. It is a reliance on a public officer's advice raising an entrapment by estoppel defense. This rests upon principles of fairness rather than the defendant's mental state and thus it may be raised even in strict liability offense cases.Hedges 912 F.2d at 1405.

Recently, the Eleventh Circuit again approved entrapment by estoppel as a viable defense. United States v. Thompson, 25 F.3d 1558. In Thompson, the Eleventh Circuit clearly intended for the defense of entrapment by estoppel to be used when a defendant reasonably believed he was granted authority to do an act which would otherwise be illegal. ⁽²⁾ In United States v. Talmadge, 829 F.2d 767 (9th Cir. 1987), the Ninth Circuit allowed the defense of entrapment by estoppel when a defendant was told by federal officials that he could legally possess firearms because his prior felony had been reduced to a misdemeanor.

As in the above cases, Mr. xxxxxxxxx relied upon statements made by Government agents in returning to the United States. Specifically, Mr. xxxxxxxxx relied on statements made by INS agents in August of 1992 advising him that he could return to the United States. This consent was further provided by Immigration and Naturalization Service officers when Mr. xxxxxxxxx was admitted on two subsequent occasions using the same passport that he was using in 1992 when he was allegedly deported. Under the facts of this case, the Defendant's reliance upon the representation of the Government should operate to estop the Government from convicting him. The United States Supreme Court has found that convicting a defendant in these circumstances where a defendant relies upon the representation of Government to do an act, implicates due process concerns under the Fifth and Fourteenth Amendments. Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed. 2d 487 (1965).

WHEREFORE, Mr. xxxxxxxxx requests that the Government's Motion in Limine be denied.

Dated: This ______ day of June, 1996.

______________________________

VIONNETTE REYES

ATTORNEY FOR AYODEJI xxxxxxxxx

STATE BAR NO. 601290

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL ACTION

) NO. xxxxxxxxxxx

AYODEJI xxxxxxxxx )

__________________________________________)

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Defendant's Response to Government's Motion in Limine upon:

Joe Plummer, Esquire

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, Georgia 30335

by hand delivery.

Dated: This ______ day of June, 1996.

______________________________

VIONNETTE REYES

ATTORNEY FOR AYODEJI xxxxxxxxx

STATE BAR NO. 601290

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

C:\wwwfpd\theoryde.wpd

1. In making this argument the Government ignores the fact that Mr. xxxxxxxxx is also charged with a violation of 8 U.S.C. §1325, a specific intent crime.

2. These two Eleventh Circuit cases are in conflict with Trevino-Martinez, the case relied upon by the prosecution in seeking to preclude Mr. xxxxxxxxx from raising an entrapment by estoppel defense. In Trevino-Martinez the court excluded the entrapment by estoppel defense because the defendant failed to show that he had been assured by Government agents that his actions in reentering the country were legal. Trevino-Martinez, p.4. Unlike the defense in Trevino-Martinez, Mr. xxxxxxxxx expects to make such a showing at his trial.