In overruling appellant's motions in arrest of judgment, for a new trial and for acquittal notwithstanding the verdict, District Judge Chesnut wrote an elaborate opinion. This opinion is reported in 104 F. Supp. 771. We think he ruled correctly on both these questions and that it is not necessary to add materially to what was said in that opinion.
In United States v. Oris, 598 F.2d 428, 430 (5th Cir.), cert. denied, 444 U.S. 945, 100 S.Ct. 304, 62 L.Ed.2d 313 (1979), we held that the charge that a defendant was "unlawfully present" in the United States with a specific intent to disobey the law, by definition, requires a finding that there was no Attorney General consent, whether this be an element of the offense or an affirmative defense. United States v. Lazarescu, 104 F. Supp. 771, 777-78 (D.Md.), aff'd, 199 F.2d 898 (4th Cir. 1952); United States v. Bakouros, 160 F. Supp. 173, 175-76 (E.D.Pa. 1958); see United States v. Curnew, 788 F.2d 1335, 1337 (8th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 438, 93 L.Ed.2d 387 (1986) (discussing ยง 1326(2)(B)); see also United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 2151 n. 2, 95 L.Ed.2d 772 (1987); United States v. Patterson, 446 F.2d 1358, 1359 (5th Cir. 1971) (per curiam). In Oris we refused to disturb a guilty verdict even though consent was a hotly-contested issue.
In any event, the view has prevailed with respect to arrivals of the type here involved that freedom from official restraint must be added to physical presence before entry is accomplished. United States v. Lazarescu, D.C.Md. 1952, 104 F. Supp. 771, affirmed, 4 Cir., 1952, 199 F.2d 898; cf. United States ex rel. Schirrmeister v. Watkins, 2 Cir., 1949, 171 F.2d 858. Taking a contrary position, the defendant would further postpone the occurrence of his entry in legal contemplation until the time when he exercised his freedom from restraint by physically landing at Baltimore.
The original jurisdiction to hold and exclude rests upon the custody of his person acquired at the time of his arrival, and this original jurisdictioncontinues until the question of his right to be admitted has been determined in his favor and the proceedings before the immigration officials may be regarded as closed." See, too, Patton v. Tod, 297 F. 385, 396 (2d Cir., 1924); United States v. Vasilatos, 209 F.2d 195, 197 (3d Cir., 1954); United States v. Lazarescu, 104 F. Supp. 771 (D.Md., 1952). As to plaintiff's claim that his removal from the ship by the Marshal and the exercise of criminal jurisdiction over him by the government removed him from the jurisdiction for exclusion purposes of the Immigration Service, it is contrary to almost all of the cases that have considered the problem.
There, the defendant seaman, under indictment for the same crime charged in this action, came to the United States from foreign at Baltimore, Maryland. He contended that he did not get off the ship at Baltimore, but that he remained on it as it proceeded coastwise to Norfolk where he left the ship and landed. Judge Chesnut in passing upon this contention said as follows, 104 F. Supp. 771, 776: "that it was the intent of Congress that the status of an alien seaman should be determined after inspection at the first port of entry, and that the determination of the Inspector of his admissibility then and there is entry into the United States within the meaning of the statutes."