
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1115                                    UNITED STATES,                                      Appellee,                                          v.                                  DEVON WAYNE SMITH,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Boudin, Circuit Judge,                                        _____________                             and Keeton,* District Judge.                                          ______________                                _____________________               Peter Bruce Krupp,  Federal Defender Office,  by Appointment               _________________          of the Court, for appellant.               James Francis Lang, Assistant  United States Attorney,  with               __________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                  September 7, 1994                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA,  Chief  Judge.    Defendant-Appellant  Devon                                ____________          Wayne Smith entered a conditional plea of guilty to an indictment          charging  him  with   illegally  reentering  the  United   States          following  a deportation order subsequent  to a conviction for an          aggravated  felony,  in  violation  of 8  U.S.C.      1326(a) and          (b)(2).  On appeal,  Smith asserts that the district  court erred          in  denying  his  motion to  dismiss  (1)  the entire  indictment          because  the government unduly burdened his ability to appeal the          deportation order  underlying the offense,  and (2) that  part of          the indictment  based on  his prior aggravated  felony conviction          because that conviction was vacated after the government indicted          Smith in this case.  We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    On  January  5,  1983,  Smith, a  citizen  of  Jamaica,          entered the United  States at  Miami, Florida, as  a visitor  for          pleasure with authorization to  stay until the end of  the month.          On  October  1,  1984,  Smith  was  charged  with  possession  of          marijuana with intent to distribute in Dorchester, Massachusetts.          Smith  was convicted  of this offense  in Boston  Municipal Court          ("BMC") on January 30, 1985.                    On August  28, 1985, the Immigration and Naturalization          Service ("INS") initiated  deportation proceedings against  Smith          on  the   grounds  that  Smith's  conviction   subjected  him  to          deportation  under  Section  241(a)(11)  of the  Immigration  and          Nationality  Act  ("INA"),  8  U.S.C.     1251(a)(11).    Several          hearings were  held on this matter beginning in July of 1987.  At                                         -2-          one  of  these hearings,  the  INS brought  an  additional charge          against Smith:  remaining in  the United  States longer  than the          one-month period of time granted upon his original  admission, an          offense  subjecting Smith to  deportation under Section 241(a)(2)          of  the  INA,  8 U.S.C.    1251(a)(2).    Smith  admitted he  was          deportable  on  this  additional  ground, but  he  contested  his          deportability on the original    241(a)(11) charge because he was          attempting  to have the BMC  conviction vacated.   Smith chose to          challenge  the    241(a)(11)  charge, despite  the  fact that  he          admitted to  his deportability on other  grounds, because certain          forms  of relief  that are  available under    241(a)(2)  are not          available  once   a  defendant   is  found  deportable   under             241(a)(11).                    Smith's initial  efforts to  vacate the BMC  conviction          were  unsuccessful, and  on June  30, 1988, an  immigration judge          found  Smith  was  deportable  under  both      241(a)(2)  and             241(a)(11) and ordered Smith's  deportation.  Smith appealed this          ruling on the  ground that  the judge improperly  relied upon  an          uncertified copy of the BMC conviction.                    On September  25, 1989,  while the appeal  was pending,          INS agents arrested  Smith for  an alleged gun  offense.   Agents          found two 9 mm handguns in Smith's possession after responding to          information provided  by the Mirimar, Florida,  Police Department          that  Smith had  been interviewed  and found to  possess weapons.          The  INS knew  that  Smith  had  been  convicted  of  carrying  a          concealed  firearm  in  October   of  1988  (Smith  pleaded  nolo                                                                       ____                                         -3-          contendere  to that  charge  and  an  adjudication of  guilt  was          __________          "stayed and withheld")  and that Smith had  been briefly detained          by the  INS in May of 1989  after being found in  possession of a          knife during an INS sweep.                    After  the September  1989 arrest,  the INS  took Smith          into custody  and held him  in lieu  of posting  a $25,000  bond.          Smith was never officially charged for the gun offense underlying          the arrest.  Smith then  moved for a bond determination.   An INS          hearing officer ruled  on the  motion and ordered  that Smith  be          detained without bond.  Smith then requested a redetermination of          the ruling before  an immigration  judge.  On  October 18,  1989,          following a hearing, an  immigration judge denied Smith's request          for a change in his custody status.                    Central to  this appeal is Smith's  allegation that the          INS  detained  him without  bail in  order  to unduly  burden his          ability to pursue his  pending immigration appeal, and  to coerce          Smith  into waving that appeal.  Smith offered no direct evidence          to support this allegation.  He does point out, however, that the          record does not indicate that Smith  was ever notified of the gun          charges  against him -- charges which were never formally made in          the first place -- or that Smith was ever given an opportunity to          be heard  on the  alleged gun  charges underlying his  detention.          Smith also points out  that, at some  point in November of  1989,          Smith was  transferred from an  INS detention center  in Florida,          where  his family, business, and lawyer were located, to El Paso,          Texas.  Smith's counsel affirmatively asserts in the brief and in                                         -4-          prior  motions   before  the  court  that  Smith   never  had  an          opportunity to rebut the  gun charges, but this assertion  is not          supported by an affidavit from Smith himself, or from anyone else          involved in the bond hearings.1                      In  any   event,  faced   with  a  lengthy   period  of          incarceration  during  the pendency  of  his immigration  appeal,          Smith, in consultation with  his attorney in El Paso,  decided to          withdraw  his  appeal  and  submit  to  deportation.    A  motion          withdrawing the  appeal, signed  by Smith  and his  attorney, was          filed on November 21, 1989, and Smith was deported to Jamaica.                    In March of 1992, Smith  reentered the United States at          Miami.  He was subsequently arrested by INS agents in Dorchester,          Massachusetts  on  March 22,  1993.   A  federal grand  jury then          returned  the  indictment  for  this   case  on  May  13,   1993.          Meanwhile,   in  October   of  1993,   Smith's  current   counsel          successfully vacated the original  1985 BMC conviction upon which          Smith's deportation was originally based.                    Smith moved  to dismiss  the indictment in  the present          case  by collaterally  attacking  the deportation  order and  the          aggravated felony underlying the charged offenses.  A hearing was                                        ____________________          1  There is no evidence in the record concerning  what was argued          before the immigration  judge or what basis  underlay the judge's          decision to uphold the  revocation of Smith's bail.   Thus, there          is no evidence indicating whether or not Smith was actually heard          on  the  gun  charges.    However,  Smith's  motion  for  a  bond          determination does acknowledge that Smith was detained by the INS          on  the basis  of a  gun charge.   Although  not critical  to the          resolution of  this appeal, one  could reasonably infer  from his          bond motion that Smith  did have an opportunity to  challenge the          gun charges at the bond hearings.                                         -5-          scheduled, but  Smith did not request an  evidentiary hearing for                                                    ___________          the  motion.    Following a  hearing  on  December  9, 1993,  the          district court  denied Smith's motion to  dismiss the indictment.          Smith's   counsel  subsequently  requested  approval  of  several          subpoenas  for   the  purpose  of  collecting   evidence  on  the          collateral attack issue with  the intent of litigating the  issue          at  trial.   Then, on  January 12,  1994,  the court  granted the          government's motion to exclude  all evidence of the circumstances          surrounding the  validity of the deportation  proceedings.  Later          that  same  day,  Smith  entered  a  conditional  plea  of guilty          pursuant to Fed. R.  Crim. P. 11(a)(2), reserving for  appeal the          issues presented here.                                    II.  ANALYSIS                                    II.  ANALYSIS          A.  Collateral Attack on Deportation: Coerced Waiver of Appeal          A.  Collateral Attack on Deportation: Coerced Waiver of Appeal              __________________________________________________________                    To establish  an offense  under   1326,  the government          must  prove that the defendant  has been previously  deported.  8          U.S.C.   1326(a)(1).  A defendant accused of violating   1326 may          collaterally  attack  the  underlying  deportation  order if  the          defendant can show that he or she was deprived of the opportunity          for meaningful judicial review of that deportation order.  United              __________________________                             ______          States v. Mendoza-L pez, 481 U.S. 828, 839 (1987)  ("Depriving an          ______    _____________          alien  of  the right  to have  the  disposition in  a deportation          hearing reviewed in a judicial forum requires, at a minimum, that          review be  made available in  any subsequent proceeding  in which          the  result of the deportation proceeding is used to establish an          element of a criminal offense.").                                         -6-                    Smith argues that his  right to collaterally attack the          underlying   deportation   under  Mendoza-L pez   was  improperly                                            _____________          foreclosed by the district court.  Smith originally  contended in          his  motion to dismiss that  the INS's detention  of Smith for an          uncharged gun offense effectively  denied him the opportunity for          meaningful judicial  review of  the  deportation proceeding,  and          therefore, the proceeding cannot properly serve  as the basis for          his indictment under 8 U.S.C.   1326.  After denying this motion,          the court ruled  that Smith  could not present  evidence on  this          issue  at  trial.   We  find  no error  in  the district  court's          actions.                    We have recently held that a defendant who deliberately          and voluntarily waived  his right to  appeal a prior  deportation          order  under the advice of counsel, is not deprived of meaningful          judicial  review  and  thus   may  not  collaterally  attack  the          deportation order during the   1326 criminal proceedings.  United                                                                     ______          States v. Smith, 14 F.3d 662, 665 (1st Cir.  1994); United States          ______    _____                                     _____________          v.  Vieira-Candelario, 6  F.3d 12, 15  (1st Cir. 1993).   In this              _________________          case, Smith withdrew  his appeal of  the deportation order  under          the advice of counsel.  Smith argues, however, that the waiver of          his  appeal was  not  deliberate and  voluntary,  but rather  was          coerced, and thus  his case is distinguishable from the situation          in  Smith and Vieira-Candelario.   According to  Smith, the INS's              _____     _________________          action of imprisoning him  without allowing him to challenge  the          reason  for  his incarceration,  unconstitutionally  burdened his          ability to appeal because  it required him to suffer  an unlawful                                         -7-          imprisonment  in order  to pursue his  right to  judicial review.          The  only way to gain his rightful  freedom, Smith argues, was by          waiving his appeal and accepting deportation.                    There are  a  couple of  subsidiary issues  surrounding          Smith's appeal.   The first  one is  whether any waiver,  even if          coerced  under the  most horrendous  and fundamentally  unfair of          circumstances, would preclude a Mendoza-L pez-type challenge to a                                          _____________          subsequent criminal indictment under   1326.  We must assume that          there are some  circumstances in which a  coerced and involuntary          waiver of an appeal  constitutes a denial of the  opportunity for          meaningful  judicial review and thus cannot serve as a bar, under          Smith  and  Vieira-Candelario, to  a  collateral  challenge of  a          _____       _________________          deportation  order.   See  Mendoza-L pez,  481 U.S.  at  839 n.17                                ___  _____________          (noting that abuses such  as coerced confessions, biased judging,          and knowing  use of perjured testimony "could operate, under some          circumstances,   to   deny    effective   judicial   review    of          administrative determinations").                    The   next  question   is   whether  Smith's   specific          allegations,  if true,  could  constitute  sufficiently  coercive          circumstances  so  as to  effectively  deny  Smith of  meaningful          judicial review of his deportation order despite his waiver of an          appeal.  To the  extent Smith alleges that the  INS purposefully,          as opposed  to mistakenly or inadvertently,  detained him without          probable cause, and without formally charging him or allowing him          to subsequently challenge the charges for  which he was allegedly          detained,  for  the deliberate  purpose  of  pressuring him  into                                         -8-          withdrawing  his  appeal  and   expediting  his  deportation,  he          presents  allegations that  conceivably  might  be sufficient  to          raise  a  Mendoza-L pez  issue  in a  subsequent  criminal  case.                    _____________          Although Smith  could still  pursue his  appeal while in  prison,          even under such egregious circumstances as the ones he alleges, a          court might not be precluded from finding that such circumstances          violated  the  requirement  that  Smith  be  afforded  meaningful          judicial review.                    That  leaves  the  issue of  whether  Smith  adequately          presented the matter  to the district court  in a way  that would          allow  the court to make  a finding that  Smith's allegations are          true.  There  is no evidence in the record  to support any aspect          of  Smith's  allegations that  he  was coerced  into  waiving his          appeal  of the deportation order.  On the contrary, what evidence          does exist indicates that Smith was lawfully detained for weapons          violations, that he was given two  opportunities to challenge his          detention, including  a hearing before an  immigration judge, and          that the INS  reasonably believed  it had cause  to detain  Smith          because Smith had been picked up for previous weapons  violations          and because  he was found with two 9 mm  handguns.  The fact that          no formal gun  charges were  brought against Smith  and the  fact          that  Smith was transferred from Miami to  El Paso do not rise to          the level of evidence of deliberate coercion by the INS.  In sum,          there  is no evidence to support a  finding that Smith was denied          meaningful judicial review of his deportation order.                    Smith nevertheless contends that (1) the district court                                         -9-          did not even  consider the merits of his  coercion claim, and (2)          he  tried to present evidence  in support of  his allegations but          the  district court prevented  him from doing so.   As an initial          matter,  the court  made no  factual findings  or  explicit legal          findings  when  it denied  Smith's motion  to  dismiss.   At that          point,  however, Smith had presented  no evidence --  not even an          affidavit  from Smith himself -- to support his claim of coercion          by the INS.  Smith also  failed to request an evidentiary hearing          in conjunction with his motion to dismiss.  Having thus failed to          establish any factual basis for his claim, the district court was          warranted in rejecting Smith's motion  for dismissal out of hand.          See D. Mass. Loc.  R. 7.1(A)(2); United States v.  Levasseur, 704          ___                              _____________     _________          F. Supp. 1158, 1168 (D.Mass. 1989).                    Smith  argues  that even  if  his  motion was  properly          dismissed,  he still had a right to present evidence of the INS's          coercion  of Smith at trial  as an affirmative  defense under the          Mendoza-L pez  doctrine.  We find no support for this contention.          _____________          As with  motions  to suppress  evidence,  alleged  constitutional          infirmities in matters collateral to the elements of the  charged          offense involve complex questions  of both law and fact  that are          appropriately determined  by the court in  a preliminary hearing.          Cf.  Mendoza-L pez,  481 U.S.  at  832  (affirming circuit  court          __   _____________          opinion  that found due  process required a  "pretrial review" of          the underlying deportation).  Although the Ninth Circuit has held          that the Mendoza-L pez issue must go to the jury if the issue has                   _____________          not  previously been  addressed  before trial,  United States  v.                                                          _____________                                         -10-          Ibarra, 3 F.3d 1333, 1334 (9th Cir. 1993) -- a ruling about which          ______          we  express no  opinion  at  this  point  --  even  that  opinion          foreclosed  a relitigation of the issue if already decided by the                        __          court  on a  pretrial motion.   Id.   In this  case, the district                                          __          court granted a preliminary hearing on the Mendoza-L pez issue at                                                     _____________          which  Smith had the opportunity to fully and fairly litigate the          issue   before  the  court.    If  Smith  failed  to  request  an          evidentiary hearing or otherwise failed to take full advantage of          the  opportunity afforded  to  him by  the  district court,  such          failure  was of his own doing and  does not, by itself, warrant a          second bite at the apple.  Under such circumstances, Smith cannot          assert a  right to relitigate  the Mendoza-L pez issue  at trial.                                             _____________          Therefore,  the  court's dismissal  of  Smith's  motion, and  its          subsequent   exclusion   of   evidence   pertaining   to  Smith's          deportation proceedings are affirmed.          B.  Attack on Aggravated Felony Portion of the Indictment          B.  Attack on Aggravated Felony Portion of the Indictment              _____________________________________________________                    In  his motion to dismiss, Smith also argued that proof          of  a  prior aggravated  felony conviction  is  an element  of an          offense  under  8 U.S.C.     1326(b)(2).2   Because  Smith's only                                        ____________________          2  8 U.S.C.   1326 provides in relevant part:                      (a) Subject  to  subsection (b)  of  this                      section, any 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 . .                      .                      shall   be  fined  under   Title  18,  or                      imprisoned  not more  than  2  years,  or                                         -11-          aggravated felony conviction had been vacated by the state court,          Smith argued in the motion that the district court should dismiss          that  part  of the  indictment  which  referenced the  aggravated          felony provision,   1326(b)(2).  The district court rejected this          argument when it denied the motion.                    Subsequent to the proceedings in the district court, we          decided United States  v. Forbes,  16 F.3d  1294, 1297-1300  (1st                  _____________     ______          Cir. 1994),  in which we held that   1326(b) does not establish a          separate  offense,   but  rather   simply  provides   a  sentence          enhancement for those convicted under   1326(a) (the offense  for          reentry into  the United  States after  being deported),  who had          been convicted of an  aggravated felony before their deportation.          That  case controls the present issue.  Section 1326(b)(2) is not          a separate element of  an offense and therefore, the  vacation of          Smith's underlying  felony conviction cannot provide  grounds for          dismissal of the  indictment.  The  district court's ruling  must          therefore be upheld.                    Smith urges us to reconsider our holding in Forbes.  We                                                                ______          decline to upset that decision and, in any event, are not free to          do so as  a newly constituted  panel.  Broderick  v. Roache,  996                                                 _________     ______                                        ____________________                      both.                      (b)  Notwithstanding  subsection  (a)  of                      this section,  in the  case of  any alien                      described in such subsection --                      (2) whose deportation was subsequent to a                      conviction    for   commission    of   an                      aggravated  felony,  such alien  shall be                      fined  under  such Title,  imprisoned not                      more than 15 years, or both.                                         -12-          F.2d 1294, 1298  (1st Cir. 1993).  Furthermore,  we note that the          district  court prudently  sentenced Smith  as if  his aggravated          felony did not exist, by implementing a downward  departure that,          according to the court, "in effect strips out the conviction that          has been vacated."  Thus, even if the district court had erred in          refusing  to  dismiss  the   aggravated  felony  portion  of  the          indictment, which it did not, that error would have been harmless          because  Smith was  never  sentenced on  the allegedly  erroneous          count.  United States v. Long, 894 F.2d 101, 108 (5th Cir. 1990).                  _____________    ____                    Affirmed.                    ________                                         -13-
