USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 96-1855
UNITED STATES OF AMERICA,
Appellee,
v.
ELIEZER LARA SOTO,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________
____________________
Richard N. Foley for appellant.
________________
Jean B. Weld, Assistant United States Attorney, with whom Paul M.
____________ _______
Gagnon, United States Attorney, was on brief for appellee.
______ ______________________
____________________
February 12, 1997
____________________
ALDRICH, Senior Circuit Judge. Defendant Eliezer
_____________________
Lara Soto (hereinafter defendant), a citizen of the Dominican
Republic, unlawfully entered the United States in 1986. He
was deported in November 1993. He subsequently obtained a
visa and reentered in August 1994 without having obtained the
necessary permission of the Attorney General, a violation of
8 U.S.C. 1326.1 After a three day jury trial, defendant
was found guilty.
I.
Prior to trial, defendant moved to quash or dismiss
the indictment by attacking the earlier deportation order
entered after a hearing in his absence, on the ground of lack
____________________
1. Title 8 U.S.C. 1326 provides that an offense against
the United States occurs when:
(a) [A]ny 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 . . . .
-2-
of notice. According to the defendant, he failed to receive
either of two letters sent by the Immigration and
Naturalization Service ordering him to appear first on
December 1, 1992 and again on January 5, 1993. The court
denied the motion, finding that certified mail notice had
been given to defendant's proper address with the return
receipt bearing his signature, which the court found genuine.
Nor would he have had any defense on the merits. We agree
that the deportation order was valid.
II.
Defendant's only other defense to the present
prosecution was his testimony that he entered in good faith,
believing that his visa constituted the required permission.
The court instructed the jury that it was not, and that good
faith was not a defense.
The district court noted that of all the circuits
considering this statute, only the Seventh Circuit in United
______
States v. Anton, 683 F.2d 1011, 1014 (7th Cir. 1982) (2-1)
______ _____
required the government to show specific intent. We are more
impressed with dissenting Judge Posner's thinking that an
alien who has broken our laws once should not be given the
benefit of the doubt. See id. at 1019-22 (collecting cases).
___ ___
It is appropriate that the reentry law have teeth. The
appeal is without merit.
Affirmed.
________
-3-
