Criminal Practice – Illegal reentry extends to venue where defendant is ‘found’

Listen to this article

Because illegal reentry is a continuing crime, a violation may be prosecuted where the defendant enters or attempts to enter the United States, as well as at any place that he is present until found. Because the defendant was “found” in the Eastern District of Virginia, venue was appropriate there.

Background

Andres Abelino Ayon-Brito was prosecuted and convicted in the Eastern District of Virginia of reentering the United States without permission after having been removed, in violation of 8 U.S.C. § 1326(a). He appeals the district court’s denial of his pretrial motion to dismiss the indictment based on improper venue.

Section 1326(a) provides that any previously deported alien who “enters, attempts to enter, or is at any time found in, the United States” without first receiving permission shall be punished. Ayon-Brito argues that even though the indictment alleged that he was first “encountered” after his reentry by law enforcement officers in the Eastern District of Virginia, it also alleged, as an element of the offense, that he was “found” in the Middle District of Pennsylvania where he was first accurately identified. Therefore, he asserts, the crime charged was committed in the Middle District of Pennsylvania, and venue was appropriate only there.

In denying Ayon-Brito’s motion challenging venue, the district court concluded that his violation of § 1326(a) was a continuing offense that began when he reentered the United States and continued wherever he was present until he was found and arrested. The court thus held that because Ayon-Brito also committed the crime in Virginia, he could be prosecuted and tried in Virginia.

Analysis

The question presented in this case is where was Ayon-Brito’s violation of § 1326(a) committed—or, when posed with the language of 8 U.S.C. § 1329, where did it occur. And the answer to that question turns on the nature of the offense, focusing on its elements.

The elements of the offense are: (1) that the defendant is an alien; (2) that he was deported or removed from the United States; (3) that he thereafter reentered (or attempted to reenter) the United States and (4) that he lacked permission to do so. Under this formulation, the “found” term in the statute is not employed to define an element.

Or stated somewhat differently, the “reentry” element of the crime is established whenever the alien is found, “wherever he is… The crime is being in the United States.” In this way, “entry” is “embedded” in the term “found” because “an ‘entry’ into the United States is required before a person is ‘found in’ the United States.” “Found” is thus simply a prosecutorial authorization broadening the proof sufficient to establish “reentry.”

Moreover, because “found” does not itself refer to an act or conduct of the defendant, it does not describe a conduct element. It has been long established “that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus.” And the actus reus of a § 1326 violation is the defendant’s “[re-entering] the United States without permission.” In short, the conduct element of a § 1326 violation is “entry” (or “attempted entry”), not “found.”

With this understanding of “found” in § 1326(a), it is apparent that Congress included the term to extend the scope of the conduct element “entry” to when and where the alien is found, thus creating a continuing offense centered on the alien’s entry into the United States and presence therein until found. This follows from the operative language of § 1326(a), which punishes the conduct of a previously deported alien who “enters [or] attempts to enter” the United States until “at any time,” he is “found in[] the United States” as a result of the entry.

At bottom, § 1326(a) creates a continuing offense, which begins with a previously deported alien’s reentry (or attempted reentry) into the United States and continues until the alien is found. And because Congress created a continuing offense, “the locality of the crime … [extends] over the whole area through which force propelled by an offender operates.” For purposes of venue, therefore, a violation of § 1326(a) may be prosecuted not only where the defendant enters or attempts to enter the United States but also at any place that he is present thereafter until he is found.

Affirmed.

United States v. Ayon-Brito (Lawyers Weekly No. 001-137-20, 11 pp.) (Paul V. Niemeyer, J.) Case No. 19-4403. From E.D. Va. (Anthony John Trenga, J.) Geremy C. Kamens for Appellant. Heather Diefenbach Call for Appellee.