
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-
