10-574-cr
United States v. Boothe


                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January
1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule
32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal
Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must
serve a copy of it on any party not represented by counsel.


        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 11th day of January, two thousand eleven.

PRESENT:
            AMALYA L. KEARSE,
            RALPH K. WINTER,
            PETER W. HALL,
                        Circuit Judges.
_______________________________________________

UNITED STATES OF AMERICA,
                                          Appellee,

                          v.                                                10-0574-cr

RUDOLPH BOOTHE, also known as Andrew Boothe,
also known as William Isaac,
                              Defendant-Appellant.
______________________________________________

FOR APPELLEE:                                      CHRISTOPHER D. FREY , Assistant United States
                                                   Attorney (Katherine Polk Failla, Assistant United
                                                   States Attorney, Of Counsel, on the brief) for Preet
                                                   Bharara, United States Attorney for the Southern
                                                   District of New York.

FOR DEFENDANT-APPELLANT:                           DAVID GORDON , New York, New York.




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       Appeal from a judgment of the United States District Court for the Southern District of

New York (Pauley, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED, that the judgment of the district court is AFFIRMED.

       Rudolph Boothe appeals from the denial of his motion to raise an entrapment by estoppel

defense at his trial on the charge of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1).

The district court denied Boothe’s motion on the ground that the entrapment by estoppel defense

was not applicable where there were no facts showing that the government affirmatively misled

Boothe to believe he had permission to enter the country or that he reasonably relied on the

alleged misrespresentation. “[I]t is well established that [t]he legal sufficiency of a proffered

defense is a question of law and therefore is reviewed de novo.” United States v. Gole, 158 F.3d

166, 168 (2d Cir. 1998) (internal quotation marks omitted). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

       The defense of entrapment by estoppel is available to defendants “where the government

procured the defendant’s commission of the illegal acts by leading him to reasonably believe he

was authorized to commit them.” United States v. Giffen, 473 F.3d 30, 39 (2d Cir. 2006). The

defendant must show that “the government, by its own actions, induced him to do those acts and

led him to rely reasonably on his belief that his actions would be lawful by reason of the

government’s seeming authorization.” Id. at 41. Accordingly, in order to raise an entrapment by

estoppel defense to the crime of illegal reentry, Boothe must show that he had reentered the

country “‘in the mistaken but reasonable, good faith belief that he ha[d] in fact been authorized to

do so,’” by the government in its communications with him. Id. at 41-42 (quoting United States

v. Abcasis, 45 F.3d 39, 43 (2d Cir. 1995)).



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       When Boothe called the government’s toll-free number to hear the status of his case, the

automated message stated, according to the parties’ stipulation, that “an immigration judge

ordered your deportation on March 19, 1998, at 26 Federal Plaza” and that the “Board of

Immigration Appeals dismissed your case.” Boothe sought to introduce evidence that, upon

hearing the Board of Immigration Appeals (“BIA”) had dismissed his case, he believed this

meant that the BIA had vacated the immigration judge’s order of deportation. He would argue

that the government led him to believe the case against him was dismissed and, as a result, he

reasonably believed he was no longer subject to the deportation order.

       For purposes of our analysis, we assume the automated message confused Boothe as to

whether “your case” meant “the case against you” rather than “your appeal” and hence confused

him as to whether he remained subject to an order of deportation. Nevertheless, the fact that

Boothe was subsequently taken into immigration custody, was shown a warrant for his

deportation on the basis of the immigration judge’s final order of deportation (which he also

signed in acknowledgment), was provided with an official warning that he could not reenter the

country for a period of ten years without express permission—and would be subject to felony

charges if he did so—and was in fact deported to Jamaica, was without question sufficient to put

a reasonable person on notice that he was still subject to a deportation order and that reentry into

the United States was not authorized. Boothe has not presented sufficient facts to support a

defense of estoppel by entrapment. The district court did not err in precluding it.

       We have considered all of Boothe’s contentions on this appeal and have found them to be

without merit. The judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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