The Heck with the Ninth Circuit: Second Circuit Rules that Crime of Attempted Reentry Following Deportation Is Not a Specific Intent Offense

United States v. Daniel Rodriguez, Docket No. 04-4157-cr (2d Cir. July 20, 2005) (Straub, Wesley, and Sessions, D.J.) (Op. by Straub): Ladies and gentlemen, we have a circuit split. In this decision, the Circuit rules that the crime of attempted reentry into the United States following deportation, in violation of 8 U.S.C. § 1326(a), is not a specific intent offense, and thus that the Government need not charge or prove that the defendant knew that his conduct was unlawful, knew that he needed the permission of the Attorney General to reenter, or knew that he did not have such permission when he intentionally attempted to reenter. Rather, the Government need only prove that the defendant intentionally attempted to reenter (as opposed to, e.g., being transported into the good ol’ U.S.A. while in a comatose state against his will). This reading of the attempted reentry offense — in accordance with that already accepted by the First, Fifth, and Eleventh Circuits — conflicts with that adopted by the Ninth Circuit in United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000).

This outcome should come as no surprise to anyone familiar with the Circuit’s law concerning the reentry offense generally. In numerous cases arising in slightly different contexts, the Court has ruled that the “completed” reentry offense is a general intent crime in which the only mens rea required is the intent to return voluntarily, and no more. See, e.g., United States v. Champegnie, 925 F.2d 54 (2d Cir. 1991); United States v. Martus, 138 F.3d 95 (2d Cir. 1998). Ignorance of the law, or a good-faith belief in the legality of one’s reentry, is no defense. And, indeed, Martus even stated — albeit in dicta since the crime there was a completed reentry rather than an attempted one — that “the government need only prove a voluntary act of reentry or attempted reentry by the defendant that is not expressly sanctioned by the Attorney General.” 138 F.3d at 97 (emphasis added). The instant case adopts this dicta as its holding, and it thus becomes the law of the Circuit. Op. at 4-5.