UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 94-5752

ELTON WELLINGTON DAVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-94-22-WN)

Argued: June 5, 1996

Decided: August 13, 1996

Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Joseph Nolan, Jr., PIERSON, PIERSON &
NOLAN, Baltimore, Maryland, for Appellant. Peter M. Semel, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Lynne A. Battaglia, United States Attorney, Baltimore,
Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Elton W. Davis, a previously deported alien, appeals his conviction
by a jury of reentering the United States without the permission of the
Attorney General, in violation of 8 U.S.C. § 1326(a). For the reasons
that follow, we vacate the conviction and remand for a new trial.

I.

Davis, a Jamaican national who had been granted permanent resi-
dent status, was deported in 1987 after being convicted of several
charges involving cocaine trafficking. The action was taken pursuant
to a warrant of deportation issued by the Immigration and Naturaliza-
tion Service, which commanded any officer or employee thereof "to
take into custody and deport" Davis.

An INS officer transported Davis to Miami, and had him affix his
right thumbprint to a space provided on the warrant. Upon ensuring
that Davis had boarded a flight to Kingston, the officer signed the
warrant in two places, attesting that he had taken the thumbprint and
had personally witnessed the departure.

In late November 1993, the INS received word that Davis had
returned and was living in Hagerstown, Maryland. Davis was arrested
and charged with illegally reentering the country. A jury convicted
Davis, and the district court sentenced him to 63 months in prison.
Davis appeals his conviction and sentence.

II.

8 U.S.C.A. § 1326 (West Supp. 1996) provides, in pertinent part:

          (a) [A]ny alien who --

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          (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 . . . the
          Attorney General has expressly consented to
          such alien's reapplying for admission . . .

          shall be fined under Title 18, or imprisoned not more than
          2 years, or both.

Subsection (b) allows for longer maximum terms of imprisonment for
those aliens who illegally reenter the country after being deported for
misdemeanor or felony convictions. An alien who, like Davis, is
deported for committing an aggravated felony, is subject to being
imprisoned for up to 20 years.

To obtain a conviction under § 1326, the government is required to
prove (1) that the defendant is an alien who was previously arrested
and deported, (2) that he re-entered the United States voluntarily, and
(3) that he failed to secure the express permission of the Attorney
General to return. United States v. Joya-Martinez, 947 F.2d 1141,
1143 (4th Cir. 1991); United States v. Espinoza-Leon, 873 F.2d 743,
746 (4th Cir.), cert. denied, 492 U.S. 924 (1989). The first require-
ment is actually a combination of three elements, i.e., an alien who
was previously arrested (or excluded) and deported. Cf. United States
v. Quezada, 754 F.2d 1190, 1192 (5th Cir. 1985) (listing five total
elements); United States v. Hernandez, 693 F.2d 996, 998 (10th Cir.
1982), cert. denied, 459 U.S. 1222 (1983) (same).

This focus of this appeal is on the arrest element. The term "arrest,"
as it is used in § 1326, refers only to the alien's detention subsequent
to an order of deportation; it includes neither the alien's seizure inci-
dental to his conviction of the offense upon which deportation is pred-
icated, nor any action that may be taken to secure the alien's presence
pending a determination of deportability. United States v. Wong Kim
Bo, 466 F.2d 1298, 1303-04 (5th Cir. 1972). To establish the requisite
criminal intent under § 1326, it is necessary for the government to
prove (1) that the alien knew that he had been deported, but (2) volun-
tarily returned nonetheless. The alien's detention in contemplation of

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his forced departure "provides great assurance that the alien under-
stands that he is being officially deported." Id. at 1304.

As proof of Davis's arrest, the government introduced at trial both
the warrant of deportation and the testimony of the INS officer who
signed it. The warrant alone may be sufficient -- if credited by the
factfinder -- to prove the arrest element. See Quezada at 1195. How-
ever, without objection, the district court instructed the jury:

          A warrant of deportation containing a defendant's thumb-
          print and indicating the date and location of his deportation
          establishes the arrest requirement contemplated by the stat-
          ute.

(emphasis supplied). Davis now maintains that, by not phrasing the
instruction in such a way as to afford the jurors the discretion to reject
the warrant, the district court deprived him of his constitutional right
to have the jury decide each and every element of the offense of
conviction.1 Although Davis's argument may appear to have consider-
able merit, we need not decide the question inasmuch as an even more
fundamental defect in the proceedings below requires that his convic-
tion be vacated.

III.

At the oral argument of this appeal, counsel for Davis pointed out
that the arrest element had not been alleged in the indictment. The
grand jury's charge was, in toto:

           On or about December 8, 1993, in the State and District of
           Maryland, ELTON WELLINGTON DAVIS, an alien, who
           had previously been deported subsequent to a conviction for
           commission of an aggravated felony as defined in 8 U.S.C.
           § 1101(a)(43), was found unlawfully in the United States,
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1 See, e.g., United States v. Johnson, 71 F.3d 139, 142-44 (4th Cir.
1995) (in prosecution for armed credit union robbery where the institu-
tion's federally insured status was an essential element of the crime, it
was fatal, structural error to instruct the jury that "You are told that the
[financial institution] is a credit union within the terms of [the] statute.").

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          specifically Hagerstown, Maryland, without having obtained
          the express consent of the Attorney General of the United
          States to reapply for admission into the United States. 8
          U.S.C. § 1326(b)(2).2

An indictment is fatally defective if (1) it neglects to allege all the
elements of the charged offense, or otherwise fails to fairly inform the
defendant of the charges against him; or (2) it does not enable him to
plead double jeopardy in defense of future prosecutions for the same
offense. Hamling v. United States, 418 U.S. 87, 117 (1974); United
States v. Sutton, 961 F.2d 476, 479 (4th Cir.), cert. denied, 506 U.S.
858 (1992). When a "notice" challenge to the indictment is not raised
until appeal, the indictment is liberally construed to determine
whether the necessary facts appear in any form, or can be fairly found
within its terms. Sutton at 479 (citations omitted).

Here, even the most liberal construction of the indictment would
permit no conclusion except that it utterly failed to allege that Davis
was arrested prior to being deported. Thus, as outlined in Section II,
supra, the indictment did not fairly inform Davis of the criminal
intent that the government would have to prove he possessed in order
to convict him of violating § 1326.

As a result of the defective indictment, Davis is entitled to have his
conviction vacated. Nevertheless, because the trial evidence was suf-
ficient to sustain Davis's conviction, the government may seek to
indict and try him anew. See, e.g., United States v. Starkes, 32 F.3d
100, 101 (4th Cir. 1994).3

VACATED AND REMANDED FOR A NEW TRIAL
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2 As we noted at the outset of Section II, supra, the arrest element is
contained in § 1326(a), not § 1326(b).

3 Because we vacate Davis's conviction, we do not consider his conten-
tion that he was improperly sentenced.




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