Case: 15-10471     Date Filed: 08/16/2016   Page: 1 of 4


                                                               [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 15-10471
                             ________________________

                      D.C. Docket No. 3:14-cr-00102-BJD-JRK-1



UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

versus

RAUL PATRICIO MENDIETA,

                                                    Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                   (August 16, 2016)

Before TJOFLAT, ROSENBAUM and ANDERSON, Circuit Judges.

PER CURIAM:

         Raul Patricio Mendieta is subject to a final order of removal from the United

States and is set to be deported to his home country of Bolivia based on two
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convictions of crimes of moral turpitude, which brand him a member of the class

of aliens deportable under 8 U.S.C. § 1227(a)(2)(A)(ii). In the months after his

removal order became final, Mendieta repeatedly stonewalled Immigration and

Customs Enforcement (“ICE”) agents’ efforts to remove him from the United

States. Mendieta declined to sign travel documents necessary for his return and

lied to ICE agents about his ability to speak English. After he refused to board a

flight to Bolivia, Mendieta was served on three separate occasions with a copy of

ICE Form I-229(a), which informed him that he could be subject to criminal

penalties if he “willfully fails or refuses to make timely application in good faith

for travel or other documents necessary to [his] departure” or “takes any other

actions designed to prevent or hamper” his departure from the United States in

violation of 8 U.S.C. § 1253(a)(1)(B) and (C). 1 Nevertheless, Mendieta continued

to defy ICE officials’ removal efforts. As a result of his defiance, a grand jury

returned a one-count indictment charging Mendieta with violating 8 U.S.C.

§ 1253(a)(1).



       1
          That statute reads, in relevant part, that “[a]ny alien against whom a final order of
removal is outstanding by reason of being a member of any of the classes described in section
1227(a) of this title, who— . . . (B) willfully fails or refuses to make timely application in good
faith for travel or other documents necessary to the alien’s departure, [or] (C) connives or
conspires, or takes any other action, designed to prevent or hamper or with the purpose of
preventing or hampering the alien’s departure pursuant to such . . . shall be fined under title 18,
or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes
described in paragraph (1)(E), (2), (3), or (4) of section 1227(a) of this title), or both.” 8 U.S.C.
§ 1253(a)(1).
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       Prior to trial, the United States filed a motion in limine to prevent Mendieta

from introducing evidence that he had resisted ICE officials’ removal efforts upon

the advice of his attorney, Martin Beguiristain.2 The District Court, concluding

that an alien’s purported good-faith reliance on advice of counsel in thwarting ICE

removal efforts is irrelevant in a § 1253(a)(1) prosecution, granted the United

States’ motion.

       At trial and in the absence of the jury, Mendieta called Beguiristain to the

stand to proffer the advice Beguiristain had given him, i.e., why Mendieta had

resisted the ICE agents’ attempts to remove him from the United States.

Beguiristain testified that he advised Mendieta that he should request the agents to

call Beguiristain if they attempted to deport him. Beguiristain also testified that he

did not tell Mendieta that he should refuse to sign travel documents or disobey the

orders of ICE agents. The Court rejected Mendieta’s proffer, concluding that his

refusal to cooperate with the final order of removal was not in reliance on the

advice of counsel.

       After the Government rested its case, Mendieta testified in his own defense.

At the conclusion of his testimony on direct examination, his attorney approached

the bench and announced that he had refrained from asking Mendieta about the

advice Beguiristain had given him due to the Court’s ruling on the testimony

       2
         Martin Beguiristain represented Mendieta in his collateral challenges of the convictions
that rendered him deportable, but not in the instant case.
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Beguiristain had proffered.3 The jury found Mendieta guilty of violating

§ 1253(a)(1), and the Court sentenced him to prison for 60 months.

       Mendieta now appeals his conviction. He argues that the District Court

denied him his Sixth Amendment right to present witnesses in his defense 4 in

barring Beguiristain from testifying in accordance with his proffer and that this

ruling, in turn, precluded him from showing that he could not have “willfully”

violated 8 U.S.C. § 1253(a)(1).5 We are not persuaded for two reasons. First, as

Beguiristain’s proffer discloses, he did not advise Mendieta to decline to sign

documents or otherwise refuse to cooperate with ICE agents, the conduct that gave

rise to Mendieta’s indictment. Second, assuming for sake of argument that good-

faith-reliance-on-advice-of-counsel is a defense to negate the willfulness element

of a § 1253(a)(1) offense, because Mendieta’s attorney did not proffer what

Mendieta would have said after listening to Beguiristain’s testimony, we have no

way of knowing whether Mendieta had a good-faith-reliance defense.

       AFFIRMED.




       3
          But counsel did not proffer the testimony Mendieta would have given after hearing
Beguiristain’s testimony before the jury.
        4
          The Sixth Amendment states, in relevant part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his
favor.” U.S. Const. amend. VI.
        5
          Mendieta also argues that the Court’s ruling denied him due process of law in violation
of the Fifth Amendment.
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