Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit
10-17-1994
USA v. McCalla Precedential or Non-Precedential:
Docket 93-1908
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Recommended Citation "USA v. McCalla" (1994). 1994 Decisions. Paper 157. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/157
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 93-1908 ___________
UNITED STATES OF AMERICA
vs.
HURBY SEPTIMUS MCCALLA aka TERRANCE GEORGE BEECHAM aka MICHAEL G. SMITH a/k/a THOMAS HARDING
Hurby McCalla, Appellant ___________
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 93-cr-00128-1) ___________
Argued August 11, 1994 Before: MANSMANN, COWEN and McKEE, Circuit Judges. (Filed October 14, 1994) ___________
Michael R. Stiles United States Attorney Walter S. Batty Assistant United States Attorney Eric W. Sitarchuk, Esquire (ARGUED) Suite 1250 Office of United States Attorney 615 Chestnut Street Philadelphia, PA 19106
COUNSEL FOR APPELLEE
Steven A. Morley, Esquire (ARGUED) Benjamin Franklin House Suite 400 834 Chestnut Street Philadelphia, PA 19107
COUNSEL FOR APPELLANT ___________
OPINION OF THE COURT __________
MANSMANN, Circuit Judge.
A jury convicted Hurby Septimus McCalla pursuant to 8
U.S.C. § 1326 for his unauthorized reentry into the United States
as an alien who had previously been deported after an aggravated
felony conviction. At the time of his deportation, McCalla was
given a standard Form I-294 notice which warned that his reentry
into the United States without first procuring the permission of
the United States Attorney General would expose him to a maximum
prison sentence of two years. The two year penalty indicated on
the form was a misstatement of the actual statutory maximum
penalty of up to 15 years imprisonment. The main issue we
address is whether the government should have been precluded
under the theory of fair warning, the rule of lenity, or the
doctrine of entrapment from seeking a sentence in excess of two
years and ultimately, whether the district court erred in
sentencing McCalla to a prison term which substantially exceeded
the two years described in the notice.
I.
Hurby Septimus McCalla1 was deported on or about
April 9, 1991. At that time, he received and signed Immigration
and Naturalization Service Form I-294, which stated:
1 . McCalla has used a variety of aliases. He was convicted in New Jersey Superior Court on May 3, 1988, for possession of a controlled dangerous substance with intent to Should you wish to return to the United States you must write [the United States Department of Justice, Immigration and Naturalization Service] or the American Consular Office nearest your residence abroad as to how to obtain permission to return after deportation. By law (Title 8 of United States Code, Section 1326) any deported person who within five years returns without permission is guilty of a felony. If convicted he may be punished by imprisonment of not more than two years and/or a fine of not more than $1,000.00.
S.A. 1 (emphasis added).
The INS Form I-294 given McCalla had not been revised
to reflect changes in section 1326 of Title 8, U.S.C., which had
occurred on November 18, 1988 and November 19, 1990. The 1988
amendment to section 1326 added a subsection (b), providing for
enhanced penalties where the defendant has had prior felony
convictions. A second amendment in 1990 increased the associated
maximum fine from $1,000 to $250,000 in accordance with 18 U.S.C.
§ 3571(b)(3). Consequently, the portions of section 1326
(..continued) distribute and distribution of a controlled dangerous substance under the name Michael G. Smith. As a result of that conviction, McCalla was deported from the United States on April 9, 1991, under the name Terrance George Beecham. On April 15, 1992, McCalla was arrested in Philadelphia, Pennsylvania, under the name, Thomas Harding. Apparently, on June 30, 1992, McCalla was again arrested, this time under the name, Dennis Clark, but a fingerprint analysis identified him to be the same person as Thomas Harding. On January 21, 1993, McCalla admitted that his true name is Hurby Septimus McCalla. A combination of comparison photographs and fingerprint analyses compiled from local police department records and FBI records established that all of the above names, and other names or spellings, refer to one and the same Hurby Septimus McCalla. applicable to McCalla at the time of his deportation were as
follows: (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 . . . or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States . . . 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,
shall be fined under Title 18, or imprisoned not more than 2 years, or 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.
8 U.S.C. § 1326 (as amended Nov. 18, 1988, Pub. L. 100-690, 102
Stat. 4471; Nov. 29, 1990, Pub. L. 101-649, 104 Stat. 5059).
On or about April 15, 1992,2 McCalla was found in
Philadelphia, having reentered the United States without first 2 . The indictment charged that McCalla was found in Philadelphia, Pennsylvania, on or about April 15, 1992, under circumstances which brought his presence in the United States to the attention of local police authorities. He was at a night club when a security guard noticed he was carrying a loaded applying to the Attorney General of the United States for
admission and receiving her express consent pursuant to section
1326. He was thus charged with a violation of section
1326(b)(2).
At trial, the court precluded defense counsel from
raising to the jury the issue of whether McCalla could be
properly charged pursuant to 8 U.S.C. § 1326(b) in light of the
errors contained in Form I-294. The jury returned a guilty
verdict on the single count indictment. At sentencing, McCalla
argued that the government was bound to the misstatements made in
Form I-294 in seeking his sentence, and therefore that the
government was precluded from seeking a sentence in excess of 2
years despite the 15 year maximum imprisonment provided in
section 1326(b)(2). Nonetheless, the court calculated McCalla's
offense range at 100 to 125 months pursuant to the United States
Sentencing Guidelines, and imposed a sentence of 112 months
imprisonment with three years supervised release following
completion of his prison sentence and a financial penalty in the
amount of $50.00.3
(..continued) pistol and telephoned the police, who subsequently arrested him. The complaint alleged that McCalla was found in the United States on or about January 20, 1993. That date coincides with the date he was placed in the custody of the Immigration and Naturalization Service after completing sentences for local offenses. 3 . The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This is an appeal from a final judgment of conviction and order of sentence pursuant to 28 U.S.C. § 1291. II.
The issue of whether due process mandates that the
government be limited to the maximum sentence promulgated by the
government's own inaccurate notice of the current law is one of
first impression in this circuit.
McCalla argues that due process, fundamental fairness
and the rule of lenity militate against imposition of a prison
sentence in excess of that which the government has clearly
represented it could be. He further argues that the public
policy supporting the doctrine of entrapment would preclude the
government from receiving a "benefit" from its act of
misrepresentation. Thus McCalla seeks to have this case remanded
to the district court for resentencing within a two-year sentence
limitation.
Our sister courts of appeals have recently rejected the
arguments which McCalla raises before us. In United States v.
Perez-Torres, 15 F.3d 403 (5th Cir. 1994), a case involving the
very same act of misrepresentation on the part of INS, the Court
of Appeals for the Fifth Circuit held: Form I-294 is not a criminal statute. Hence, the defect [the defendant] complains of lies not in the underlying statute, but rather in a provision of a document with no relevant legal force. As [the defendant] concedes, section 1326 clearly and unambiguously articulated the penalties associated with a reentry offense. Thus, regardless of the inaccuracy of Form I-294, the statute under which [the defendant] was convicted provided notice adequate to satisfy the requirements of due process.
Id. at 406. Similarly, in reversing the decision of its district
court, the Court of Appeals for the Ninth Circuit held in United
States v. Sanchez-Montoya, 1994 U.S. App. LEXIS 18,742, *2 (9th
Cir. July 26, 1994) that,
[N]either due process nor principles of equitable estoppel precludes imposing a prison term exceeding two years for illegal reentry on a defendant who had been advised erroneously by the INS before deportation that the maximum penalty for that offense was two years. [citing United States v. Ullyses- Salazar, No. 93-50144, Slip op. 6543, 6549, 6551-52 (9th Cir. June 20, 1994)]. We also conclude[] that such circumstances do not constitute a valid basis for a downward departure. [Citing id. at 6553.]
Accord United States v. Samaniego-Rodriguez, 1994 W.L. 401595
(7th Cir. Aug. 4, 1994) (Form I-294 cannot give rise to a due
process violation and section 1326 unquestionably satisfies all
due process requirements); United States v. Shaw, 1994 W.L.
244362 (7th Cir. June 7, 1994) (pre-deportation warning that
reentry is punishable by a maximum of two years does not render
the 46-month sentence imposed a violation of due process).
We agree with our sister courts of appeals. Although
the inaccuracy in Form I-294 was regrettable, perhaps
inexcusable, due process requires that it is the criminal statute which must clearly set forth the activity which constitutes a
crime and the punishment authorized for committing such a crime.
See United States v. Batchelder, 442 U.S. 114, 121 (1979) (a
statute which ambiguously specifies criminal conduct or the
penalties authorized upon conviction raises a constitutional question). Section 1326(b)(2) clearly comports with the due
process requirement of fair notice.
Similarly, the rule of lenity applies to ambiguous
criminal statutes. Simpson v. United States, 435 U.S. 6, 14-15
(1978) (ambiguities in either the substantive or sentencing
provisions of criminal statutes justify application of lenity);
United States v. Schneider, 14 F.3d 876, 879 (3d Cir. 1994)
(lenity only applies where reasonable doubt persists concerning
ambit of statute even after review of statutory text, structure,
legislative history and polices). Section 1326(b)(2) is not
ambiguous and we decline to employ the rule of lenity to override
the indisputable terms of the criminal statute.
Finally, the defense of entrapment serves to protect
against a deception on the part of the government that induces a
criminal act by "actually implant[ing] the criminal design in the
mind of the defendant." United States v. Russell, 411 U.S. 423,
436 (1973). Furthermore, a claim of entrapment requires proof
that the defendant lacked predisposition to commit the crime.
Id. (entrapment defense requires government inducement and lack
of predisposition); see also United States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990), cert. denied, 501 U.S. 1207 (1991).
Neither of those elements is shown here. Form I-294 did not
mislead McCalla as to what constituted the specific criminal act;
nor do we regard the misstatement as to the punitive sentence
relevant to proving McCalla's predisposition. McCalla willfully
reentered the United States despite the government's express notice that such reentry would constitute a felony. Public
policy militates against equity here.4
III.
McCalla raises other claims which we find meritless.
McCalla claims, for example, that the use of his prior aggravated
felony conviction to enhance his punishment was in violation of
the ex post facto clause. We hold, however, that because the
violation of section 1326(b) occurred subsequent to the effective
date of the statutory amendment which provided for an enhanced
punishment, there was no ex post facto violation. The date of
McCalla's prior criminal conduct is not relevant for purposes of
an ex post facto analysis here. See Gryger v. Burke, 334 U.S.
728, 732 (1948); United States v. Arzate-Nunez, 18 F.3d 730, 734
(9th Cir. 1994) ("[f]or purposes of analyzing . . . statutes
increasing penalties for future crimes based on past crimes, the
relevant `offense' is the current crime, not the predicate
crime").
McCalla also asserts that evidence of the circumstances
under which his reentry came to the attention of authorities and
of his subsequent arrest processing was unduly prejudicial and
improperly admitted into evidence, and hence that he is entitled
4 . At trial, defense counsel argued that the government should be estopped from proving any elements of section 1326(b)(2) calling for a penalty in excess of two years, the implication being that McCalla detrimentally relied in good faith upon the government's misrepresentation in deciding to risk the commission of a felony. McCalla precluded a finding of good faith, however, by his willful violation of the criminal law. to a new trial. McCalla further contends that he was denied the
effective assistance of counsel because defense counsel failed to
object to the allegedly improper introduction of this evidence.
In ruling on the motion in limine, the court held that the
evidence was admissible to the extent that it was a foundation
for an understanding of the sequence of events which established
McCalla's surreptitious and voluntary presence in the United
States. Furthermore, in light of McCalla's various aliases, the
evidence helped to establish his identity. We hold that it was
well within the district court's sound discretion to permit the
evidence, and in light of the overwhelming case against McCalla,
we do not find any evidence of prejudice or a manifest
miscarriage of justice requisite to a finding of ineffective
assistance of counsel raised first on direct appeal. Moreover,
testimony concerning the basis of McCalla's prior sentence, given
on redirect examination in response to questions asked during
cross-examination, was invited, and admission of that evidence
does not constitute plain error.
Finally, McCalla asserts that the deportation hearing
which he was afforded in 1991 did not comport with due process or
the statutes and regulations apropos to such hearings. He argues
that the alleged deficiency of his deportation hearing precludes
using his prior deportation as the basis of the section 1326
charge against him. Specifically, McCalla asserts that the use
of a telephonic hearing directly contravened the mandate of 8
U.S.C. § 1252(b), which governs the determination of
deportability. McCalla further alleges that the deportation order was predicated upon a record of conviction which the
immigration judge never saw, instead relying solely on McCalla's
admission and the representations of the prosecutor that such a
record exists and as to its contents.5
We acknowledge that a severely deficient deportation
proceeding which effectively deprives the defendant of his right
of direct appeal may preclude use of that deportation as a
predicate to prosecution under section 1326. See, e.g., United
States v. Mendoza-Lopez, 481 U.S. 828, 838 (1984) ("where the
defects in an administrative proceeding foreclose judicial review
of that proceeding, an alternative means of obtaining judicial
review must be made available before the administrative order may
be used to establish conclusively an element of a criminal
offense"). McCalla has failed to demonstrate, however, that he
was effectively deprived of his right of direct appeal and we
will not dismiss the section 1326 charge against him.
5 . We note here that in granting the government's motion to preclude evidence of the alleged invalidity of McCalla's deportation, the court held that McCalla had waived his right to collaterally attack the validity of his deportation proceeding because he had not raised any due process challenge to the indictment prior to trial in accordance with the time provisions set forth in Federal Rule of Criminal Procedure 12 and Local Rule of Criminal Procedure 11. See Memorandum Order of the District Court, Criminal Action No. 93-128 (May 11, 1993, at p. 9, S.A. 151). Nevertheless, the court heard the merits of that claim and ruled that McCalla had failed to meet his burden to establish a due process violation. S.A. 151-58. IV.
For the foregoing reasons, the judgment of sentence
entered on September 17, 1993, against Hurby Septimus McCalla in
the United States District Court for the Eastern District of
Pennsylvania will be affirmed.
_________________________
MCKEE, Circuit Judge, dissenting.
While I agree with the majority in all other
respects, I respectfully dissent from Part II of the majority
opinion. The majority reasons that, despite the fact that the
government disseminated the inaccurate maximum penalty
information printed on form I-294 to McCalla (and countless other
deportees), McCalla's sentence in excess of two years does not
offend due process because the relevant statute gave notice to
all the world of its contents. Notice of the conduct
that a statute proscribes and the penalty prescribed for such
conduct are fundamental to due process of law. See McBoyle v. United States, 283 U.S. 25, 27 (1931). The statement on form I-
294, did not give McCalla accurate information and fair warning
regarding "what the law intends to do if a certain line is
passed." Id. Accordingly, traditional notions of fairness
inherent in the requirement of due process should preclude us from allowing McCalla to be sentenced to more than the two years
that the government represented to be the maximum sentence.
Although the government was justified in its
efforts to incarcerate McCalla based upon his illegal return to
this country, our holding today does not properly consider the
totality of the circumstances of McCalla's deportation and the
context in which he received the "information" in form I-294.
The record before us establishes that once it is determined that
an individual will be deported, the government makes flight
arrangements for the deportee. At the appointed time, the
deportee is escorted to the airport in handcuffs by two
deportation officers who fingerprint the deportee and are
responsible for making sure that the deportee signs the warrant
of deportation. Prior to departure the handcuffs are removed,
and the warrant of deportation is read to the deportee and then
given to him or her along with a copy of form I-294. He or she
is then put on the airplane, and the appropriate travel
documentation is given to an airline attendant.
In this coercive atmosphere the government clearly
intends for the deportee to read and rely upon the information
and warnings in each of the documents that are presented to him
or her. Indeed, McCalla was given form I-294 so that he would
take note of, and heed, the warnings it contained. We now allow
the government to successfully assert that the contents of the
form are irrelevant to McCalla's notice. We charge the defendant with knowledge because of
the unambiguous statute, yet we do not charge the government
agency responsible for enforcing this country's immigration laws
with the same notice, and we excuse the error in this form. It
stands reality on its head to suggest that the unambiguous
statute buried within one particular volume of the United States
Code sitting somewhere upon the shelves in far off law libraries
somehow reaches out to McCalla in these circumstances and trumps
the "information" in form I-294.
I fail to understand the logic or fairness of a
position which charges this defendant with knowledge based upon
the publication of a statute yet fails to attribute that same
knowledge to duly appointed agents of the Attorney General of the
United States, or the agency of the government responsible for
enforcing immigration laws. All parties seem to agree that the
INS did not intentionally mislead McCalla because the INS did not
realize that the information contained in form I-294 was wrong
when agents handed it to McCalla. Yet, this defendant who is not
responsible for enforcing the law, is charged with notice of the
change in the law.
Courts have traditionally held that one must know
the consequences of an action before one can be held criminally
accountable for the action. Thus, due process and fair notice
dictate that a defendant cannot be punished when the statute does
not clearly define the criminal conduct. McBoyle, 283 U.S. at 27. In addition, no penalty can be imposed if a statute does not
prescribe punishment for certain conduct. United States v. Evans,
333 U.S. 483, 495 (1948). Accordingly, under the circumstances
of this case, it is reasonable to limit the government to the
sentence that it has represented to be the maximum penalty. I
believe fundamental fairness requires nothing less.
The rationale asserted by the government and
adopted by the majority elevates the maxim that "ignorance of the
law is no excuse" to a mantra which has hindered realistic
analysis here. The Supreme Court recently had occasion to limit
the use of this "age old maxim" in Ratzlaf v. United States,
U.S. , 114 S. Ct. 655 (1994). Ratzlaf, though clearly
distinguishable, teaches that the existence of a statute cannot
serve to give notice of its contents for all purposes even when a
defendant engages in conduct known to be improper. Id. at 663.
McCalla was aware of the contents of 8 U.S.C. § 1326(b)(2) just
as the defendant in Ratzlaf was aware of the contents of the
statutes at issue in that case. Both defendants knew that they
were engaging in conduct that was improper. The Court in
Ratzlaf, however, held that the defendant could not be charged with knowledge that his conduct was a crime. See id. at 658.
Just as the defendant in Ratzlaf could not be charged with
knowledge of the criminal nature of his activity, the
circumstances surrounding McCalla's deportation should preclude
charging him with knowledge of 8 U.S.C. § 1326. Thus, absent controlling precedent to the
contrary, I believe that fundamental fairness limits the maximum
penalty to which this defendant should be subjected to that
amount of incarceration which the government told him he could
expect if he were to return illegally. Therefore, I most
respectfully dissent.