459 F.Supp.3d 345
D.P.R.2020Background
- Defendant Luis A. Florentino-Rosario, a Dominican national, was removed from the United States in September 2019 after being stopped at a Puerto Rico airport and given expedited removal papers.
- In October 2019 Florentino was interdicted on a vessel en route to Puerto Rico with 13 others; he had paid $2,000, acknowledged knowing Puerto Rico is part of the United States, and said he intended to enter the U.S. to seek work.
- Florentino was indicted under 8 U.S.C. § 1326 for attempted reentry after deportation, tried in February 2020, did not present evidence or argument at trial, and was convicted by a jury.
- Pre‑trial, the district court excluded a duress instruction and the defendant’s asylum petition; the court used the First Circuit pattern instruction on § 1326 (including an ‘‘intent to reenter’’/attempt instruction).
- Florentino moved under Fed. R. Crim. P. 29 for acquittal (arguing insufficient proof of subjective intent under De León) and alternatively under Rule 33 for a new trial based on alleged instructional and evidentiary errors; the court denied both motions.
Issues
| Issue | Government's Argument | Florentino's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove intent to enter (element of §1326 attempt) | Evidence (boat headed to Puerto Rico, payment, admissions) shows intent to enter; conviction proper | Insufficient evidence to prove subjective intent to enter as required by De León | Guilty verdict upheld; evidence sufficient to show intent to enter; gov't need not prove intent to enter illegally |
| Whether attempted reentry requires proof defendant intended an illegal entry (mens rea) | §1326 attempt requires intent to enter (purpose), not an added intent to violate immigration law | Relied on De León and Ninth Circuit authority to argue for subjective specific intent framing and that asylum motives negate intent | Court followed First Circuit approach: attempt requires purpose to enter but not intent to commit illegal entry; De León-style specific‑intent-to-enter view (not illegal intent) controls in this context |
| Refusal to give defendant's requested specific‑intent and Model Penal Code hierarchy instructions | Pattern instructions adequately required intent to enter; defendant not prejudiced | Requested instructions (De León text and MPC hierarchy) were necessary to present defense and distinguish purpose vs. knowledge | Refusal proper: De León language substantially covered; MPC hierarchy instruction not substantively correct or necessary; no substantial prejudice established |
| Exclusion of duress defense and asylum petition evidence | Duress not supported by record; asylum petition irrelevant and unduly prejudicial (risk of nullification) | Asylum petition and duress evidence show coercion/necessity and negate specific intent; should have been admitted and charged | Duress instruction denied for failure to produce evidence of imminence or lack of alternatives; asylum petition excluded as irrelevant to §1326 and more prejudicial than probative; exclusion affirmed |
Key Cases Cited
- De León v. United States, 270 F.3d 90 (1st Cir. 2001) (attempt requires subjective intent to achieve entry but not knowledge that conduct is criminal)
- Gracidas‑Ulibarry v. United States, 231 F.3d 1188 (9th Cir. 2000) (attempted illegal reentry requires intent to reenter without Attorney General consent)
- Rodríguez v. United States, 416 F.3d 123 (2d Cir. 2005) (statutory attempt need only require intent to enter, not intent to commit illegal entry)
- Cabral v. United States, 252 F.3d 520 (1st Cir. 2001) (upholding conviction for attempted reentry; rejecting necessity of a specific‑intent instruction)
- Bailey v. United States, 444 U.S. 394 (1980) (discussion of mens rea terminology and distinction between purpose and knowledge)
- Lebreault‑Feliz v. United States, 807 F.3d 1 (1st Cir. 2015) (elements and evidentiary threshold for duress/necessity defense)
- Berroa v. United States, 856 F.3d 141 (1st Cir. 2017) (standards for refusal to give a requested jury instruction)
- Pagán‑Romero v. United States, 937 F.3d 8 (1st Cir. 2019) (instructional error that increases government burden may be harmless)
- Dyer v. United States, 589 F.3d 520 (1st Cir. 2009) (definitions and distinction between specific and general intent)