United States v. Jose Guadalupe Zavala-Mendez

This is a “found in” case where the previously deported alien presented himself at a border station.

Facts

Zavala-Mendez was a passenger in a car that crossed into Alaska on the Alaska Highway from the Yukon Territory on a January night. He had no right to enter the United States, because he had been deported and the Attorney General had not given him permission to reenter. 1 At the border station Zavala-Mendez lied and said he had a green card. But he gave his true name, and it came up on the border station computer showing that he had been deported. He was therefore detained and driven to Anchorage, 430 miles away, where his fingerprints could be scanned and compared to the fingerprints in his alien file. The prints matched.

Zavala-Mendez was convicted of being “found in” the United States after having previously been deported. 2 He was not indicted for attempting to enter the United States. 3 His only defense is legal, that he could not be “found in” the United States when all he did after crossing the border was to go straight to the border station and present himself for entry.

Like all American border stations, the Alaskan facility is inside the United States, so by the…

dissenting.

By implicitly incorporating an intent element into what is essentially a strict liability crime, the majority’s decision threatens to undermine a well-established line of Ninth Circuit cases holding that an alien enters the United States for the purposes of a “found in” conviction once he sets foot on U.S. soil, unless he has been under constant surveillance from the moment he crosses the border. Since Zavala-Mendez remained “free[ ] to go at large and mix with the population,” United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir.2001) (citation omitted), for a discernible, albeit circumscribed period of time, I would affirm the district court’s denial of Zavala-Mendez’s Rule 29 motion for acquittal. I respectfully dissent.

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Section 1326 sets forth three separate offenses a deported alien may commit en route to the United States. A previously deported alien violates § 1326 if he “enters, attempts to enter, or is at any time found in, the United States.” 8 U.S.C. § 1326 (a)(2). We have described being “found in” the United States as a “passive state, not requiring proof of a voluntary act.” United States v. Parga-Rosas, 238 F.3d 1209, 1214 (9th…

411 F.3d 1116 UNITED STATES of America, Plaintiff-Appellee, v. Jose Guadalupe ZAVALA-MENDEZ, Defendant-Appellant. No. 03-30321. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 7, 2004. Filed June 15, 2005. Kevin F. McCoy, Assistant Federal Defender, Anchorage, AK, for the appellant. Jo Ann Farrington, Assistant U.S. Attorney, Anchorage, AK, for the appellee. Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CR-03-00037-a-JKS. Before: HALL, KLEINFELD, and WARDLAW, Circuit Judges. KLEINFELD, Circuit Judge: 1 This is a "found in" case where the previously deported alien presented himself at a border station. Facts 2 Zavala-Mendez was a passenger in a car that crossed into Alaska on the Alaska Highway from the Yukon Territory on a January night. He had no right to enter the United States, because he had been deported and the Attorney General had not given him permission to reenter. 1 At the border station Zavala-Mendez lied and said he had a green card. But he gave his true name, and it came up on the border station computer showing that he had been deported. He was therefore detained…