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United States v. Calderon-Minchola

June 12, 2007


The opinion of the court was delivered by: Judge Conner


Presently before the court is defendant's motion for judgment of acquittal or, in the alternative, for a new trial (Doc. 43). For the reasons that follow, the motion will be denied.

I. Factual Background

On March 22, 1983, defendant Denis Segundo Calderon-Minchola, a native and citizen of Peru, was admitted to the United States as an immigrant (i.e., a lawful permanent resident). He was convicted of aggravated assault and criminal conspiracy in the Philadelphia County Court of Common Pleas on July 21, 1997 and sentenced to a term of incarceration of two and a half to ten years. (Gov't Ex. 1 at 3.)*fn1 On February 9, 2005, defendant was issued a Notice to Appear charging him with removability under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act. (Id. at 1-2.) He was ordered removed from the United States on January 24, 2006 (Gov't Ex. 2), and his appeal to the Board of Immigration Appeals ("BIA") was dismissed on May 17, 2006 (Gov't Ex. 3). Thus, defendant's order of removal became final on May 17, 2006. See 8 C.F.R. §§ 241.1; 1241.1(a).

On June 14, 2006, defendant was taken to the Peruvian Consulate in New Jersey for the issuance of a travel document, but he refused to sign the travel document. (Tr. Officer Michael Chiliberti Direct Examination.) The next day, Officer Michael Chiliberti served defendant with a document warning defendant of the consequences of his failure to depart the United States and a document titled "Instruction Sheet to Detainee Regarding Requirement to Assist in Removal."*fn2 (Id.; Gov't Ex. 5.) The instruction sheet states:

The following is a list of things you are required to complete within 30 days of receiving this form, in order [to] comply with your obligation to assist in obtaining a travel document:

Apply for a travel document/passport from your embassy or consulate, or directly from your government in your native country, or any other embassy or consulate of your native country in another country.

Comply with all instructions from all embassies or consulates requiring completion of documentation for issuance of a travel document. . . . (Gov't Ex. 5.) Approximately one month later, defendant was videotaped stating that he would not sign any travel documents. (Gov't Ex. 8.)

Defendant was indicted by a grand jury on September 13, 2006. (Doc. 1.) The one-count indictment charged defendant with hindering his removal from the United States, in violation of 8 U.S.C. § 1253(a)(1)(B), which states:

Any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 1227(a) of this title, who . . . willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure . . . shall be [guilty of a crime].

8 U.S.C. § 1253(a)(1)(B). After entering a plea of not guilty (Doc. 8), a jury trial was held on April 2 and 3, 2007 (Docs. 35, 36, 38). As part of the final instructions to the jury, the court explained the third element that the government was required to prove beyond a reasonable doubt:

For the third element of the offense-that the defendant willfully failed or refused to make a timely application for a travel or other document necessary for his departure from the United States-the term "willfully" describes the alleged state of mind of the defendant. It means that he was conscious and aware of his actions, realized what he was doing or what was happening around him, and did not act because of ignorance, mistake, or accident. An act is done willfully if done voluntarily and intentionally, and with the intent to do something the law forbids. The term "necessary for his departure" refers to those documents necessary for a lawful departure from this country and a lawful entrance into another.

There is no requirement that the Board of Immigration Appeals hold removal proceedings in abeyance based on the mere possibility that a collateral proceeding, such as a habeas corpus proceeding, could have an impact on the alien's immigration status.

(Tr. Court's Final Instructions to Jury.)*fn3 Counsel for defendant raised no objections to the final instructions given to the jury.*fn4 During trial, defendant argued, without legal support, that the term "timely" in the third element dealt with exhaustion of legal remedies, including habeas corpus proceedings. In other words, defendant contended that it was premature to require him to cooperate in removal proceedings ...

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