U.S. v. Hernandez-Noriega, (10th Cir. 2004)

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 04-5037

v.

(N.D. Oklahoma)



JORGE HERNANDEZ-NORIEGA,



Defendant-Appellant.

(D.C. No. 03-CR-17-K)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY, HENRY,

and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted

without oral argument.

A jury convicted Jorge Hernandez-Noriega on one count of being found in

the United States after deportation without having received permission from the

Attorney General to reenter, in violation of 8 U.S.C. § 1326. Mr. Hernandez-Noriega now

appeals, arguing that the evidence was insufficient to support his

conviction. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The indictment charged Mr. Hernandez-Noriega with being found within

the United States on or about January 6, 2003. The record reflects that he was

arrested in Tulsa, Oklahoma, for public intoxication on that date. See Rec. vol. I,

doc. 1, at 2. It is undisputed that Mr. Hernandez-Noriega was originally removed

from the United States in 1998 and was subsequently removed from the United

States in 2001. It is also undisputed that agents from the United States Bureau of

Citizenship and Immigration Services (formerly the Immigration and

Naturalization Service (INS)) interrogated Mr. Hernandez-Noriega in the United

States on January 24, 2003. It is further undisputed that during the interrogation,

Mr. Hernandez-Noriega waived his right to remain silent. In a sworn statement,

he admitted that he was previously deported from the United States and that he

reentered the United States illegally.

II. ANALYSIS

In order to sustain a conviction under 8 U.S.C. § 1326, the government

must prove that (1) the defendant is an alien; (2) who was arrested and deported;

and (3) thereafter voluntarily reentered the United States; (4) without the

permission of the Attorney General. United States v. Miranda-Enriquez, 842

F.2d 1211, 1212 (10th Cir. 1988). Mr. Hernandez-Noriega argues on appeal that

the evidence was insufficient for a rational jury to conclude beyond a reasonable

doubt that he was "found" in the United States after deportation, the third

element of the statute under which he was convicted.

We review the record de novo for sufficiency of the evidence. United

States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004). Evidence is sufficient to

support a conviction if a reasonable jury could find the defendant guilty beyond a

reasonable doubt, given the direct and circumstantial evidence, along with

reasonable inferences therefrom, taken in a light most favorable to the

government. Id. We evaluate the sufficiency of the evidence by "considering the

collective inferences to be drawn from the evidence as a whole." Id. (quoting

United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997)).

Mr. Hernandez-Noriega correctly argues that the government satisfies the

"found" element of § 1326 when it "discovers" a deported alien within the United

States. See United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 1994)

("The 'found in' language of § 1326(a) informs an alien who has been previously

deported and returns to the United States without the permission of the Attorney

General that he or she will be deemed guilty of an offense upon discovery within

the United States."), overruled on other grounds, United States v. Aguirre-Tello,

353 F.3d 1199 (10th Cir. 2004) (en banc). He stresses that the "found" element

is complete at the moment authorities discover an alien's presence in the United

States and know the presence is illegal, but is not a continuing offense that lasts

past the moment when those two factors converge.

This assertion is accurate:

The mere need for a confluence of factors [discovery in the United

States and knowledge that presence is illegal] before the offense is

complete, however, does not mean that the offense is a continuing one

past the occurrence of the last factor. . . . [W]e see no indication that

Congress intended being "found" itself to be treated as a continuing

offense so that an alien whom the authorities have once taken into

custody with knowledge of the illegality of his presence may be

repeatedly deemed to have been "found" at some later time or times.

United States v. Rivera-Ventura, 72 F.3d 277, 282 (2d Cir. 1995).

Nevertheless, the fact that being "found" is not a continuing offense does

not entitle Mr. Hernandez-Noriega to relief. The statute simply requires that he

be "found" in the United States "at any time" after being deported. See 8 U.S.C. § 1326 (making it a violation if an alien "enters, attempts to enter, or is at any

time found in the United States" without permission). The government presented

ample evidence that Mr. Hernandez-Noriega was interrogated in the United States

on January 24, 2003. While Mr. Hernandez-Noriega's argument that authorities

did not "discover" him in the United States on that date may raise an interesting

metaphysical question, it cannot withstand common-sense scrutiny. He was

plainly in the United States on January 24 when he was interrogated. At that

point, authorities "found" him; they knew he was in the United States (indicated

by his presence at the interrogation), and they knew his presence was illegal

(based on his sworn statement).

There is a variance between January 6, the date charged in the indictment,

and January 24, the date on which the government's evidence indicated Mr.

Hernandez-Noriega was in this country. It is sufficient for our inquiry into the

jury's verdict that January 24 is "reasonably near" January 6, because the

indictment charged Mr. Hernandez-Noriega with being found "on or about"

January 6. See United States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998)

("[w]hen an indictment uses the terminology 'on or about,' proof of a date

reasonably near to the specified date is sufficient."); Rec. vol. I, doc. 3, at 1. The

jury instructions also properly instructed the jury that "on or about" means

"reasonably near." Rec. vol. I, doc. 14, at 17.

In determining whether the date of the evidence in the case is "reasonably

near" to the date alleged in the indictment, our inquiry turns on whether the

defendant's substantial rights were prejudiced by the variance:

The true inquiry, therefore, is not whether there has been a variance in

proof, but whether there has been such a variance as to "affect the

substantial rights" of the accused. The general rule that allegations and

proof must correspond is based upon the obvious requirements (1) that the

accused shall be definitely informed as to the charges against him, so that

he may be enabled to present his defense and not be taken by surprise by

the evidence offered at the trial; and (2) that he may be protected against

another prosecution for the same offense.

Berger v. United States, 295 U.S. 78, 82 (1935); United States v.

Tsinhnahijinnie,

112 F.3d 988, 991 (9th Cir. 1997) ("A defendant is entitled to know what he is

accused of doing in violation of the criminal law, so that he can prepare his

defense, and be protected against another prosecution for the same offense.").

Here, the variance between January 6 and January 24 did not prejudice Mr.

Hernandez-Noriega's substantial rights. The government's evidence indicated

that he was found in this country on January 24. If believed, this evidence was

sufficient to convict Mr. Hernandez-Noriega under § 1326.

Where, as here, time is not an element of the offense, and where "the

phrase 'on or about' is used in an indictment in connection with a specific date . .

. , if the prosecution proves that the offense was committed within a few weeks

of the date, the proof will be deemed sufficient to hold [the] defendant

responsible for the charge." United States v. Charley, 189 F.3d 1251, 1272-73

(10th Cir. 1999) (quoting Kokotan v. United States, 408 F.2d 1134, 1138 (10th

Cir.1969)). Indeed, "[a] variance between the date alleged in the indictment and

the date of the commission of the offense as shown by the evidence is generally

not fatal." United States v. Harmon, 486 F.2d 363, 366 (10th Cir. 1973). When

we take the evidence and inferences therefrom in the light most favorable to the

government, we have no doubt that a reasonable jury could conclude that a time

period of three weeks encompasses dates that are "reasonably near" one another

in these circumstances.

Finally, we are also convinced on this record that the government

presented ample evidence from which a reasonable jury could conclude that Mr.

Hernandez-Noriega violated 8 U.S.C. § 1326. In a sworn statement, he admitted

each element of the charges against him. These admissions, standing alone,

would not be enough to convict him, however, because "[a] conviction based on

an extrajudicial incriminating statement cannot be sustained unless the

government introduces substantial evidence which would tend to establish the

trustworthiness of the statement. It is sufficient if the corroboration supports the

essential facts admitted sufficiently to justify a jury inference of their truth."

United States v. Jones, 933 F.2d 807, 809 (10th Cir. 1991) (citations, alteration,

and quotations omitted).

Mr. Hernandez-Noriega's statement, however, did not stand alone. The

government introduced several documents from his "A-file" and testimony from

three witnesses, all of which indicated that Mr. Hernandez-Noriega had

previously been deported, had not received permission from the Attorney General

to return, and was within the United States. Considering the evidence and

collective inferences to be drawn from the evidence as a whole, taken in a light

most favorable to the government, a reasonable jury could find beyond a

reasonable doubt that Mr. Hernandez-Noriega violated 8 U.S.C. § 1326.

III. CONCLUSION

For the reasons stated herein, we AFFIRM the judgment and sentence of

the district court.

Entered for the Court

Robert H. Henry

Circuit Judge

FOOTNOTES

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*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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