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Unlawfully entering the United States does not enable a conviction for visiting a military base

Apr 02, 2009 Unlawfully entering the United States does not enable a conviction for visiting a military base

Bill of Rights. (From the public domain.)

Why do good deeds so often go punished? Eliazer Madrigal-Valdez probably thought he was doing a soldier a favor by dropping him off at his military base in Fort Lee, Virginia.

Instead, when Mr. Madrigal was unable to produce a government-issued identification at the military base’s checkpoint, he was detained, interrogated, deemed to have been a Mexican citizen, found not to have a record of being lawfully in the United States, arrested, and prosecuted. As the Fourth Circuit tells it, Madrigal was convicted by bench trial on an indicted count alleging that "he ‘did knowingly and unlawfully attempt to enter upon the property of Fort Lee, Virginia, a military installation, for a purpose prohibited by law, to wit: entering onto the base as an illegal alien. (In violation of Title 18, United States Code, Section 1382.)’" U.S. v. Eliazer Madrigal-Valdez, ___ F.3d ___ (4th Cir., April 1, 2009). (By the way, a Lexis search reveals no federal statutes referencing the term "illegal alien". People are humans, not aliens.)

In reversing Madrigal’s conviction, the Fourth Circuit said: "We agree with our sister circuits that a person cannot be convicted of entering a military installation in violation of its entry requirements unless he or she has been provided with notice that entry is prohibited or restricted. Because there was no sign posted at the entry to the Fort Lee access road that set forth the entry requirements, Madrigal did not have notice that he could not enter Fort Lee because he did not have a driver’s license in his possession. We hold therefore that the district court erred in determining that the evidence was sufficient to find Madrigal guilty of entering Fort Lee in violation of §1382 because of its conclusion that "[h]e did not have proper identification . . . to enter.’"

The Fourth Circuit rejected the prosecution’s alternative ground for affirmance, about Madrigal’s having entered a military base without being lawfully in the United States: " The Government argued in its brief before this court that ‘[t]he defendant’s status as an illegal alien also satisfies the requirements of § 1382.’ Appellee’s Br. 10. No statute, regulation, or any court decision is cited for this novel proposition. Furthermore, the Government’s argument also ignores the undisputed evidence in the record that Madrigal’s sole purpose in entering the Fort Lee access road was to transport a soldier back to his military base. Entry into the United States at a place not designated by immigration officers, or without inspection is a crime pursuant to 8. U.S.C. § 1325(a).3 Madrigal apparently violated § 1325(a) prior to May 4, 2007, the date he drove a soldier back to his military base. Thus, while Madrigal violated § 1325(a) when he entered the United States, he did not violate that statute when he entered the Fort Lee access road. Our research has not disclosed any authority that makes the status of being in the United States after entering in violation of § 1325(a) a separate crime. Accordingly, contrary to district court’s alternative holding, Madrigal’s entry into the Fort Lee access road was not conduct that was prohibited by § 1325(a) or § 1382."

Finally, the Fourth Circuit found that this appeal was not moot, even though Madrigal had already voluntarily departed the United States: "In Sibron v. New York, the Supreme Court noted that ‘[t]he mere "possibility" that’ a conviction may result in collateral consequences ‘is enough to preserve a criminal case from ending "ignominiously in the limbo of mootness."’ Id. 392 U.S. 40, 55 (1968) (quoting Parker v. Ellis, 362 U.S. 574, 577 (1960) (dissenting opinion)). We agree with the parties that this appeal is not moot because he may be subject to collateral consequences if we decline to review the merits of his appeal."

In sum, Madrigal provides important defenses against a prosecution involving inadequate notice for entry upon government property, and for merely being on government property without being lawfully in the United States. Madrigal also reconfirms the Supreme Court’s holding that an appeal is not moot when the mere possibility exists that a conviction may result in adverse collateral consequences to the criminal defendant-appellant. Jon Katz

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