Unpublished Disposition, 921 F.2d 282 (9th Cir. 1988)

MEMORANDUM^** 

Ramon Reyes-Carrera appeals his conviction for being a previously deported alien found in the United States, a violation of 8 U.S.C. § 1326. He claims that the district court's instruction to the jury that it could convict him if it found that he was voluntarily present in the United States on May 20, 1988, when he was arrested, was reversible error. Because the indictment charged him with being found in the United States on June 2, 1988, the date when an Immigration official discovered him in prison, Reyes-Carrera argues, the instruction in question effectively allowed the jury to convict him of a crime with which he was not charged.

Reyes-Carrera defended his case in the district court by asserting that on June 2, 1988, the date on which the indictment specified that he had been found, his presence in the United States was not voluntary because he was in prison serving a sentence for second degree burglary. When an alien is in jail in the United States, he argued, his mere presence in the country does not support the conclusion that he intended to be here.

At trial, the government introduced evidence that Reyes-Carrera was unlawfully present in the United States at the time of his arrest on May 20, 1988. The district court instructed the jury that if it found that Reyes-Carrera had been voluntarily present on May 20, it could convict him for being present in violation of section 1326 on June 2. Reyes-Carrera claims that this instruction requires reversal because it goes beyond the limits of the indictment. Because the indictment charged him with being unlawfully present on June 2, he contends, he should not have been required to answer for his presence on May 20.

Variance of the proof at trial from the charge specified in the indictment will warrant reversal only if that variance affects the substantive rights of the defendant. United States v. Pisello, 877 F.2d 762, 765 (9th Cir. 1989). The defendant must show that the variance resulted in prejudice to him. If the indictment and the conviction are based on the same "theories," differences in minor detail will not warrant reversal. Id. at 765-66.

Reyes-Carrera's assertions of prejudice lack merit. He contends that, in reliance on the indictment, he tailored his defense to the specific charge that he was unlawfully present in the United States on June 2, 1988, and was unprepared to defend against any other allegation. The fact that he was found in prison on June 2, however, implies that he was voluntarily present in the United States long enough to be arrested. That the indictment specified the date on which he was found by the Immigration authorities did not in any way prejudice Reyes-Carrera because he was not deprived of notice that he was being put on trial for the violation he committed by entering and remaining in the United States. Reyes-Carrera does not claim that, because the indictment misled him, he failed to put on proof that he would otherwise have given in defense to a charge that he was illegally present on May 20. His counsel cannot reasonably have expected that the government would not counter the assertion that his presence in the country on June 2 was not voluntary with the rejoinder that such presence could have resulted only from a prior, voluntary presence in violation of the law.

Furthermore, Reyes-Carrera's own argument that "being found" in the United States is not a continuing activity compels the conclusion that the indictment had to specify the date on which Reyes-Carrera was found, and not some prior date on which he is known to have been present, as the date of the crime. See United States v. Di Santillo, 615 F.2d 128 (3dCir. 1980) (for statute of limitations purposes, violation of section 1326 is not a continuing offense; rather, it occurs when immigration authorities note the presence of the alien in the United States). If the voluntariness of an alien's presence in this country cannot relate back to the moment at which he was arrested here, immigration authorities could never prosecute anyone whose status as a previously deported alien is noted after he is imprisoned for commission of a separate crime. That result is not what the statute envisions.

We therefore find that the district court did not err in instructing the jury that it could relate Reyes-Carrera's state of mind on June 2, 1988, back to May 20, 1988, when his presence in the United States was voluntary.

AFFIRMED.