The opinion of the court was delivered by: Legge, District Judge.
ORDER ON DEFENDANT'S
MOTION TO DISMISS
NOW before the court is defendant Fermin Revuelta's motion to dismiss
counts one through three of the superseding indictment.
The superseding indictment contains five counts. The first charges that
defendant was an illegal alien in possession of a gun. Counts two and
three charge that defendant made false statements, regarding his alien
status, in the acquisition of a gun. Defendant now seeks to dismiss those
three counts, arguing that he was not an illegal alien. Defendant does
not now challenge counts four and five, charging conspiracy and attempt
to export firearms.
The issues have been briefed by the parties. Oral arguments were held
and the motion was submitted. The court has reviewed the moving and
opposing papers, supplemental briefs, the record filed in support and
opposition, the parties' arguments, and the applicable authorities. For
the reasons discussed below, the court denies defendant's motion to
In November 1992 defendant entered the United States illegally from
Mexico. Defendant married Maria de los Angeles Galvez in California on
June 3, 1993. On July 29, 1993 defendant's wife filed an immigrant visa
petition (INS Form 1-130) claiming defendant as beneficiary. That visa
petition stated that defendant had entered the United States illegally
("Entered Without Inspection" or "EWI") in November 1992. The petition
noted that defendant would apply for a visa after the petition was
The INS approved Mrs. Revuelta's petition on September 2, 1993 and
assigned defendant a "C21 classification," specifying defendant as the
spouse of a lawful permanent resident based upon a marriage of less than
two years. The visa petition was assigned a priority date of July 29,
1993. The priority date would be "published" sometime thereafter. Under
the regulations, defendant could not apply for an immigrant visa until
the Department of State Visa Bulletin on Availability of Immigrant Visa
Numbers published the date. It takes several years for the INS to publish
a date if the immigrant is prom an oversubscribed country such as Mexico
because Congress has limited the annual number of immigrants who can
change their status. The Visa Bulletin did not publish defendant's date
until April 1999.
On January 10, 1996, defendant purchased a pistol. On the ATF form that
defendant filled out when he purchased this gun (the form and responses
were in Spanish), he answered "No" to the question "Are you an alien
illegally in the United States?" On that same date defendant purchased
another pistol, and again answered on the ATF form "No" to the question
"Are you an alien illegally in the United States?" These events occurred
three years before defendant's priority date was published.
On April 12, 1999 the grand jury returned a three count indictment
against defendant, charging him with knowing possession of a handgun as
an illegal alien, in violation of 18 U.S.C. § 922 (g)(5), and two
counts of knowingly misrepresenting his alien status on the ATF forms, in
violation of 18 U.S.C. § 922 (a)(6). On July 19, 1999 the grand jury
returned the present five count superseding indictment against defendant
and his alleged coconspirator. The first three charges are identical to
the April 12, 1999 indictment. Court four charges both defendant and a
coconspirator with conspiracy to export firearms in violation of
18 U.S.C. § 371, and count five charges both defendant and a
coconspirator with exporting firearms, in violation of 22 U.S.C. § 2278
(b) and (c).
On April 22, 1999 defendant was taken into INS administrative custody,
and was subsequently released on bond. The INS served defendant with a
Notice to Appear, alleging that he was subject to removal on that date.
On May 22, 1999 defendant took the next step in obtaining lawful
residency status in the United States. He filed an INS Form 1-485,
Application to Register Permanent Residence or Adjust Status seeking
permanent resident status, based on his marriage and the then availability
of an immigrant visa application. To repeat, defendant's immigration visa
application became available to him in April 1999 when the INS published
his priority date of July 29, 1993. Defendant's Form 1-485 application
has been suspended until this case is resolved.
On September 10, 1999 defendant appeared at the INS hearing. He
admitted that he was not a native or citizen of the United States and
that he had entered this country illegally from Mexico. He also conceded
that he was removable, and indicated that Mexico would serve as his
designated country. Defendant subsequently moved to terminate the INS
removal proceedings; the motion was denied on March 30, 2000.
Defendant makes two arguments in support of his motion to dismiss
counts one through three of the superseding indictment. The arguments are
based on the factual record recited above, regarding defendant's status
in the United States.
Defendant's first argument is that case law compels the conclusion that
he was not an "illegal alien" at the time he purchased the firearms and
signed the ATF forms, and thus he did not violate 18 U.S.C. § 922
(g)(5) (1999) or 18 U.S.C. § 922 (a)(6) (1999). Second, defendant
argues that the INS Operating Instructions also compel the conclusion
that defendant was not an "illegal alien" at the time he purchased the
firearms and signed the ATF forms.
For the reasons discussed below, the court disagrees. The applicable
statutes and their legislative history compel the conclusion that
defendant was an alien without authorization to be in the United States
at the time of the acts charged, and he is thus chargeable under the
18 U.S.C. § 922 (g)(5) forbids an alien "illegally or unlawfully in
the United States" from possessing a firearm. 18 U.S.C. § 922 (a)(6)
provides that it is unlawful for any person to make "any false, fictitious
oral or written statement" in connection with the acquisition of a
firearm. Those statutes do not define when an alien is "illegally or
unlawfully" in the United States. Nor are those terms defined by the
Immigration and Nationality Act. That act defines only an "alien". See
8 U.S.C. § 1101 (a)(3) (1999).
Defendant argues that because he had taken all of the steps required of
him to secure his status as a permanent and lawful resident of this
country, he was not an illegal alien at the time he purchased the
firearms. Thus, he could not be charged under section 922(g)(5), and he
did not make knowingly false statements in violation of section
Defendant relies upon three cases to support ...