United States of America v.  Eliazer Madrigal-Valadez

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4681 
ELIAZER MADRIGAL-VALADEZ,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:07-cr-00199-HEH)
Argued: January 29, 2009
Decided: April 1, 2009
Before GREGORY and DUNCAN, Circuit Judges, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by
designation.
Reversed by published opinion. Senior Judge Alarcón wrote
the opinion, in which Judge Gregory and Judge Duncan con-
curred.
COUNSEL
ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Richmond, Virginia, for

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Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Pub-
lic Defender, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, Sara
E. Chase, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
OPINION
ALARCÓN, Senior Circuit Judge:
In this appeal, Eliazer Madrigal-Valadez ("Madrigal")
seeks reversal of the district court’s judgment, following a
bench trial, that he was guilty of entering Fort Lee, a military
installation, for a purpose prohibited by law, in violation of 18
U.S.C. § 1382.1
Section 1382 provides in relevant part:
Whoever, within the jurisdiction of the United
States, goes upon any military, naval, or Coast
Guard reservation, post, fort, arsenal, yard, station,
or installation, for any purpose prohibited by law or
lawful regulation;
. . .
Shall be fined under this title or imprisoned not more
than six months, or both.
1The district court found Madrigal not guilty of the possession of a
fraudulent identification document with the intent to defraud the United
States to allow him to enter Fort Lee.
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While the term is not used in § 1382, the courts have referred
to this crime as a trespass. See, e.g., United States v. Bonilla,
648 F.2d 1373, 1378 (1st Cir. 1981) (holding that persons
with advance notice that their entry is prohibited "may be
criminally prosecuted under section 1382 for an initial tres-
pass.").
The indictment alleges that Madrigal "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."
We reverse the district court’s judgment because we con-
clude the placing of a sign, setting forth entrance requirements
some distance from a public highway on the Fort Lee access
road leading to a security guard post does not provide notice
of the requirements to enter the military installation.
We are also persuaded that a person, who has previously
entered the United States without examination or inspection,
or at a place not designated by immigration, does not violate
18 U.S.C. § 1382 or 8 U.S.C. § 1325(a) by subsequently
entering a military installation within the jurisdiction of the
United States.
I
A
The evidence presented at trial, when viewed in the light
most favorable to the Government as the prevailing party, can
be summarized as follows: On May 4, 2007, Madrigal drove
to Fort Lee, an army installation in Virginia, to transport his
passenger, a soldier, back to his army base. That was his sole
purpose.
To approach the security guard post, Madrigal turned off
the public highway onto a Fort Lee access road that led to it.
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A sign was posted along the Fort Lee access road some dis-
tance from the highway. The parties conceded during oral
argument that the sign is on the military base. The sign set
forth the entry requirements in English. A photograph of the
sign was admitted as Exhibit C. Exhibit C reads as follows:
ENTRY REQUIREMENTS
DOD DECAL & ID CARD OR DRIVERS LICENSE,
VEHICLE REGISTRATION, PROOF OF INSURANCE
ENTRY IMPLIES
CONSENT TO SEARCH UPON REQUEST
CONSENT TO BREATH / BLOOD ALCOHOL
TEST
MANDATORY USE OF SEAT BELTS
MOTORCYCLIST / BICYCLIST MUST WEAR
HELMETS
NO PRIVATELY OWNED WEAPONS
NO LOUD MUSIC / NO SOLICITATION
Madrigal drove past the sign to the Fort Lee security guard
post. Any car that does not have a DOD decal must go to the
inspection pit area where visitors’ permits are issued if proper
identification is presented. Madrigal’s automobile did not
have a DOD decal.
A security guard asked Madrigal to present an identifica-
tion card. Madrigal presented an identification card that had
not been issued by a government agency. The card contains
the words "not an official identification card." Madrigal was
arrested at the inspection pit by a military police official for
presenting a fraudulent identification document.
Madrigal did not speak English. He was interviewed by an
officer who speaks Spanish. The officer filled out a Field
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Interview Sheet. Madrigal provided his name, date of birth,
and that his place of birth was Mexico.
A Department of Army civilian police officer interrogated
Madrigal. He told the officer that he was a citizen of Mexico.
The officer contacted Immigration and Customs Enforcement
to ascertain Madrigal’s status in the United States. He was
informed that there was no record showing that Madrigal was
in the United States.
B
On May 8, 2007, Madrigal appeared at a preliminary and
detention hearing before a magistrate judge. He was charged
with presenting an identification card with the intent to
defraud the United States in violation of 18 U.S.C.
§ 1028(a)(4). A military police officer testified that the identi-
fication card presented by Madrigal to a Fort Lee security
guard was not a valid identification card. The magistrate
judge held that the Government had demonstrated that there
was probable cause to believe that Madrigal presented a false
identification document to enter Fort Lee.
C
Madrigal was indicted by a grand jury in the United States
District Court for the Eastern District of Virginia on May 21,
2007. He was charged in count one with possessing a fraudu-
lent Virginia Identification Card with the intent to defraud the
United States "to allow him access on Fort Lee" in violation
of 18 U.S.C. § 1028(a)(4). In count two, the indictment
alleged 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.)"
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D
Madrigal waived trial by jury. He was found guilty of count
two on June 19, 2007. The district court found Madrigal not
guilty of count one. In explaining its disposition of count two,
the district court reasoned as follows:
I think this defendant entered the base on May the
4th. He did not have the proper identification and
authority to enter. But more importantly, his pres-
ence there was illegal as he was in the United States,
and I believe that the trespass statute is sufficiently
broad to conclude [sic] it, and I find him guilty of
Count 2.
The district court sentenced Madrigal to time served. The
court also ordered that upon his release from custody, Madri-
gal should be turned over to the United States Immigration
and Customs Enforcement for removal to Mexico.
II
A
Madrigal filed a timely appeal from the district court’s final
judgment in this matter. In its brief, the Government has
alerted this Court to the fact that Madrigal has served his sen-
tence and was not subject to supervised release. The parties
do not dispute that he was found to be removable in immigra-
tion proceedings and was permitted to leave the United States
voluntarily.
The Government also forthrightly suggested in its brief that
"under existing precedent, defendant’s challenge to his con-
viction has not become moot" because he may be subject to
collateral consequences if his conviction is not set aside.
Appellee’s Br. at 4.
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During oral argument, Madrigal’s counsel argued that if the
conviction is not reversed, it will affect his ability to receive
permission to enter 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 Par-
ker 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.
B
Madrigal contends that the evidence was insufficient to
demonstrate that he received notice of the entry requirements
before he entered the Fort Lee military installation.
In determining whether the evidence was sufficient to sup-
port a conviction, a reviewing court must determine whether
"any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt." Jackson v.
Virginia, 443 U.S. 307, 319 (1979). "We review the suffi-
ciency of the evidence to support a conviction by determining
whether there is substantial evidence in the record, when
viewed in the light most favorable to the government, to sup-
port the conviction." United States v. Pasquantino, 336 F.3d
321, 332 (4th Cir. 2003). Issues of law are reviewed de novo.
United States v. Leftenant, 341 F.3d 338, 342 (4th Cir. 2003).
This circuit has not addressed the question whether, in a
prosecution for violating § 1382, the Government must prove
that a person must have notice that entry upon a military
installation is prohibited. Those circuits that have confronted
this issue have concluded that notice is a necessary element
of § 1382 when the indictment alleges that the accused vio-
lated an entry requirement.
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In United States v. Bonilla, the First Circuit reversed con-
victions under § 1382, in part, because the naval base failed
to provide notice that entry was prohibited. 648 F.2d at 1382-
83. The court explained that naval officers gave no verbal
warnings to the defendants, the reservation had no fences, and
no signs were posted to give the defendants warning that entry
onto the military installation was prohibited. Id. at 1379-80 &
n.14.
The court held in Bonilla that "when a section 1382 prose-
cution proceeds on the basis that the defendant has entered a
restricted military reservation ‘for the purpose of’ unautho-
rized entry, we think it must be shown that the defendant had
knowledge or notice that such entry was, in fact, prohibited."
Id. at 1377.
In United States v. Floyd, 477 F.2d 217, 220 (10th Cir.
1973), the record showed that the defendants gathered to pro-
test the war in Vietnam at a closed military installation. A
sign was posted outside the base that warned that it was
unlawful to enter without permission of the base commander.
Id. at 223. The defendants crossed a white line that signified
entry onto the base. Id. at 220. An Air Force officer con-
fronted the defendants. He read the following statement to the
protesters:
THE INSTALLATION COMMANDER, COL.
JOHN C. HOLLEY, UNITED STATES AIR
FORCE, DENIES YOU PERMISSION TO ENER
[sic] THIS MILITARY INSTALLATION OR TO
BE PHYSICALLY PRESENT ON ITS PROP-
ERTY.
YOU ARE TRESPASSING ON A MILITARY
INSTALLATION OF THE UNITED STATES. BY
ORDER OF THE INSTALLATION COM-
MANDER YOU WILL IMMEDIATELY REMOVE
YOURSELVES FROM THIS MILITARY INSTAL-
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LATION. IF YOU DO NOT IMMEDIATELY
COMPLY, YOU WILL BE ARRESTED AND
PROSECUTED BY THE FEDERAL AUTHORI-
TIES. YOU ARE ADVISED THAT PURSUANT
TO TITLE 18 USC 1382, ‘WHOEVER, WITHIN
THE JURISDICTION OF THE UNITED STATES,
GOES UPON ANY MILITARY, NAVAL, OR
COAST GUARD RESERVATION, POST, FORT,
ARSENAL, YARD, STATION, OR INSTALLA-
TION, FOR ANY PURPOSE PROHIBITED BY
LAW OR LAWFUL REGULATION . . . SHALL
BE FINED NOT MORE THAN $500 OR IMPRIS-
ONED NOT MORE THAN SIX MONTHS, OR
BOTH.’
Id. at 220-21. The defendants ignored the order. They sat
down in the middle of the street and refused to leave. Id. at
221. The defendants were convicted of a violation of § 1382.
In affirming the conviction, the Tenth Circuit explained its
holding as follows:
They were warned by the sign, the five security
guards, and the fence around the installation. In any
event there can be no question that the sign and the
security guards gave the appellants actual notice that
they could enter only with the permission of the base
commander. The record is clear that they were
informed of the denial of their right of entrance
before they entered the base.
Id. at 223-24.
In United States v. Hall, 742 F.2d 1153, 1154 (9th Cir.
1984), the Ninth Circuit affirmed the conviction of peace
demonstrators who entered a military base without permission
of the base commander. The record showed that signs were
placed along a perimeter fence which contained a notice that
entry was prohibited without permission of the base com-
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mander. Id. at 1155. Military security officers repeatedly
announced over a public address system that entry was pro-
hibited without permission of the base commander. Id. The
court held that "going upon a military base with knowledge
that such entry is unauthorized violates the statute." Id.2
In the matter sub judice, Madrigal had no warning before
leaving the highway to enter the Fort Lee access roadway that
leads visitors to the Fort Lee guard post that such entry was
prohibited or restricted. The warning that there are require-
ments to enter Fort Lee was not visible until after a visitor
already had entered the Fort Lee access roadway to the secur-
ity guard post. Furthermore, the security guards did not
inform Madrigal that he could not proceed beyond the secur-
ity guard post because he did not have a DOD decal on his
vehicle and an identification card, or a driver’s license.
Instead of ordering Madrigal to leave Fort Lee because he did
not have an identification card or a driver’s license, the secur-
ity guards called upon military police officers to arrest Madri-
gal for presenting a fraudulent identification card.
The record does not demonstrate that Madrigal had notice
of the requirements restricting entry into Fort Lee before he
left the highway and drove up the Fort Lee access road to the
security guard post. Accordingly, we reject the Government’s
contention that the notice requirement was satisfied when the
sign became visible to Madrigal as he passed it on the road
to the security guard post.
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
2Each of these cases held that notice of entry requirements is necessary
before a person can be held to have violated §1382. Since warning of the
entry requirements was not visible from the public highway in this matter,
we do not address the question in this appeal regarding the type of notice
that is required to demonstrate a violation of §1382.
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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."
C
The district court also held that Madrigal’s presence on the
Fort Lee military installation violated § 1382 because "he is
not legally in the United States." J.A. 99-100. As noted above,
the indictment alleges that Madrigal "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." The
Government argued in its brief before this court that "[t]he
defendant’s status as an illegal alien also satisfies the require-
ments of § 1382." Appellee’s Br. 10. No statute, regulation,
or any court decision is cited for this novel proposition. Fur-
thermore, the Government’s argument also ignores the undis-
puted 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 pursu-
ant to 8. U.S.C. § 1325(a).3 Madrigal apparently violated
3Section 1325(a) provides as follows:
Any alien who (1) enters or attempts to enter the United States
at any time or place other than as designated by immigration offi-
cers, or (2) eludes examination or inspection by immigration offi-
cers, or (3) attempts to enter or obtains entry to the United States
by a willfully false or misleading representation or the willful
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§ 1325(a) prior to May 4, 2007, the date he drove a soldier
back to his military base.4 Thus, while Madrigal violated
§ 1325(a) when he entered the United States, he did not vio-
late 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.
CONCLUSION
Because the evidence is insufficient to demonstrate that
Madrigal had notice of the requirements for entry before he
drove onto the Fort Lee access road, or that the entry by an
undocumented alien of a military installation is a crime pro-
hibited by federal law, we hold that the judgment must be
reversed.
REVERSED
concealment of a material fact, shall, for the first commission of
any such offense, be fined under Title 18 or imprisoned no more
than 6 months, or both, and, for a subsequent commission of any
such offense, be fined under Title 18, or imprisoned not more
than 2 years, or both.
4There is no evidence in the record that Madrigal illegally entered or
was found in the United States after he was denied admission, excluded,
deported, or removed in violation of 8 U.S.C. § 1326(a). Thus, we do not
reach the separate question whether such status might satisfy the purpose
requirement of § 1382.
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