UNITED STATES of America, Plaintiff-Appellee, v. Heriberto BAHENA-CARDENAS, Defendant-Appellant

Heriberto Bahena-Cardenas appeals from the denial of his pretrial motion to dismiss a three count indictment charging him with violations of 8 U.S.C. § 1326 (b)(1) (being a deported alien found in the United States) and 18 U.S.C. § 911 (false claims as to United States citizenship). He renewed the motion as a motion for acquittal under Fed. R.Crim.P. 29 both at the end of the government’s case-in-chief and at the close of all the evidence. The motion was denied and Bahe-na-Cardenas also appeals from that denial. We have jurisdiction over this timely appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 1987 the Immigration and Naturalization Service (“INS”) began deportation proceedings against Bahena-Cardenas based upon his 1986 conviction for conspiracy to possess and to distribute heroin. In 1990, an immigration judge found him to be a citizen of Mexico and deportable. Bahena-Carde-nas appealed that decision to the Board of Immigration Appeals (“BIA”), and thus under the law, his deportation was stayed. In October of 1993 while his appeal was pending, an employee of the INS erroneously noted on his file that the BIA had affirmed the appeal causing a warrant of deportation to be…