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The mens rea required to secure an 8 U.S.C.S. § 1326 conviction for being unlawfully found in the U.S. is limited. The U.S. Court of Appeals for the Tenth Circuit has sought to follow the thrust of modern American jurisprudence and has clarified the required mens rea, often by reference to the Model Penal Code's helpfully defined terms. Accordingly, the Tenth Circuit has announced that the only mens rea required to establish a violation under § 1326's provision prohibiting those previously denied the right to be in the U.S. from entering the country is a showing that the defendant's acts were intentional. No intent to break the law-whether characterized as specific intent or general criminal intent-must be proved. Moreover, the intent to do the act of entering the country will suffice to support a conviction under § 1326's provision making it unlawful to be found in the U.S. after a prior deportation. Simply put, the Tenth Circuit has recognized that laws pertaining to border control are matters over which the U.S. Congress holds plenary power, are generally subjected by Congress to stringent public regulation, and are often treated as nearly (though not quite, given that a mens rea element is required) matters of strict liability. Under such regulatory statutes, it has not been required that the defendant know the facts that make his conduct fit the definition of the offense.
At a bar in Palomas, Mexico, Alfredo Hernandez-Hernandez, a Mexican citizen twice deported from the United States, consumed a sufficient amount of alcohol and marijuana to blackout. The next thing he knew, Hernandez was in the United States without any recollection how he got there and, in short order, arrested for illegally reentering the country. Hernandez proffered not only his own testimony, but also that of a doctor who sought to testify that Hernandez’ history of alcoholism caused him to suffer "intoxicant amnesia." Further, Hernandez proffered that a fellow detainee was prepared to testify that Hernandez was highly intoxicated and disoriented on the day of his arrest. Contesting that he had not shown the relevance of his proffered evidence, Hernandez argued that his proof bore on the mens rea element of the crime. Hernandez appealed from the U.S. District for the District of New Mexico, wherein he was convicted pursuant to 8 U.S.C.S. § 1326(a) for being found in the U.S. illegally after a prior deportation. He argued that his Fifth And Sixth Amendment rights were violated when the Government's motion in limine seeking to exclude evidence that Hernandez, due to his voluntary intoxication, had no memory of how he ended up in the U.S. was granted.
Did the district court's decision to exclude from trial evidence of Hernandez' intoxication and resulting amnesia violate his constitutional right to present a defense?
The court held that the only mens rea required to secure a § 1326 conviction for being unlawfully found in the U.S. was a showing that Hernandez' acts were intentional. No intent to break the law- whether characterized as "specific intent" or "general intent"- had to be proved. Hernandez' argument that § 1326 required at least an intent to undertake the physical act that resulted in his crossing the border, coupled with his argument that there was a complete vacuum in his memory, failed. His presence in the U.S. gave rise to an inference that such was intentional, and his invitation to the jury to guess how he got there did not satisfy the requirements for relevance under Fed. R. Evid. 401.