Free Response in Opposition - District Court of California - California

Case 3:07-cr-03470-BEN

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KAREN P. HEWITT United States Attorney PAUL L. STARITA Assistant U.S. Attorney California State Bar No. 219573 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-6507 Email: [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA Plaintiff, v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3470-BEN HEARING DATE: TIME: April 28, 2008 2:00 p.m.

13 14 JULIO BELTRAN-LAY, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES' RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE: (1) (2) (3) (4) (5) SUPPRESS STATEMENTS; SUPPRESS FRUITS OF ARREST; EXCLUDE EXPERT WITNESS; EXCLUDE PRIOR BAD ACTS; AND CONDUCT ATTORNEY VOIR DIRE.

TOGETHER WITH STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES

COMES NOW the plaintiff, the UNITED STATES OF AMERICA, by and through its counsel, KAREN P. HEWITT, United States Attorney, and Christopher M. Alexander, Assistant United States Attorney, and hereby files its Response and Opposition to Defendants' above-referenced motions. This Response and Opposition is based upon the files and records of the case together with the attached statement of facts and memorandum of points and authorities. // // // //

Case 3:07-cr-03470-BEN

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I STATEMENT OF THE CASE On December 27, 2007, a federal grand jury in the Southern District of California returned an Indictment charging Defendant Julio Beltran-Lay ("Defendant") with being a deported alien found in the United States after deportation in violation of 8 U.S.C. § 1326. On January 8, 2008, Defendant was arraigned and entered a not guilty plea. II STATEMENT OF THE FACTS THE INSTANT OFFENSE On Monday, October 22, 2007, at approximately 5:15 a.m., Sector Radio broadcasted a citizen's report of an individual detained near the R.J. Donovan Correctional Facility. The prison is located approximately one mile east of the Otay Mesa, California, Port of Entry and approximately two miles north of the international border with Mexico. Border Patrol Agent Edgar Hunt responded to the call. When Agent Hunt arrived, Correctional Officer Sergeant J. Averett had Defendant detained approximately 200 yards east of the guard shack. Sergeant Averett stated that he stopped Defendant because he was trespassing and thought he might be an inmate trying to escape from the facility. After a brief interview, Sergeant Averett determined that Defendant was not an inmate. Agent Hunt approached Defendant, identified himself as a Border Patrol agent, and asked Defendant routine immigration questions. Defendant claimed that he was a "United States citizen." Defendant could not provide any identification to support his claim. Agent Hunt asked Defendant common knowledge questions regarding the United States. Defendant was unable to provide accurate answers. The answers Defendant provided were confused and contradictory. Defendant was detained and transported to the Chula Vista Border Patrol stations for processing. At the station, Defendant was entered into the Automated Biometric Identification System. This provided Defendant's true identity and some of his prior criminal and immigration histories. These checks indicated Defendant had been removed to Mexico from the United States, through the San Ysidro, California, Port of Entry, on October 10, 2007. Defendant's criminal history also showed a

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conviction for robbery. A complete set of rolled fingerprints was submitted to WIN/AFIS and confirmed Defendant's identity. At approximately 10:19 a.m., Agent Hunt advised Defendant in the Spanish language of his right to contact the Mexican Consulate as witnessed by Agent Juan Sanchez. Defendant stated that he understood this right and did not wish to speak with the consulate. Defendant was also advised that his administrative rights did not apply and that he was being charged criminally. Furthermore, he was advised that a voluntary return to Mexico would not be granted. At approximately 10:21 a.m., Agent Hunt advised Defendant in the Spanish language of his Miranda warnings as witnessed by Agent Sanchez. Defendant stated that he understood his rights and invoked his right to remain silent. At this time, all questioning stopped. B. DEFENDANT'S CRIMINAL AND IMMIGRATION HISTORY Defendant was convicted on April 14, 2006, of robbery in violation of California Penal Code § 211 and received 2 years in prison. Accordingly, on September 26, 2007, Defendant was

administratively ordered deported to Mexico and, on October 10, 2007, Defendant was physically removed from the United States to Mexico. III POINTS AND AUTHORITIES A. DEFENDANT'S STATEMENTS SHOULD NOT BE SUPPRESSED Defendant claims that his statements made while in immigration custody on October 10, 2007 and his statement made on the day of the instant arrest requesting a voluntary return are inadmissible because these statements were involuntary and were given in violation of Miranda. The United States only intends on offering Defendant's statements made while in immigration custody on October 10, 2007, and addresses the admissibility of those statements below. A similar challenge was made in United States v. Solano-Godines, 120 F.3d 957, 961 (9th Cir. 1997). In Solano-Godines, two years before the government brought criminal charges of illegal reentry after deportation, the defendant appeared at a deportation hearing and made statements about his place of birth, citizenship, prior convictions, and prior lawful deportations without having been given a 2

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Miranda warning. Id. The Ninth Circuit held that the statements were not obtained in violation of Miranda. Id. at 960 ("Miranda warnings are not required before questioning in the context of a civil deportation hearing . . . because deportation proceedings are not criminal prosecutions, but are civil in nature."). Here, under similar circumstances, on October 10, 2007, after being released from State custody and taken into Immigration custody, Defendant was asked by Immigration authorities if he wished to contest his deportability and/or request withholding of removal to Mexico. Defendant did not wish to do so and signed the Notice of Intent to Issue a Final Administrative Removal Order admitting the allegation and charge in the Notice of Intent and acknowledging his desire to be removed to Mexico. Defendant was not in custody pending any potential criminal charges but was questioned solely for the purpose of a civil immigration proceeding. Accordingly, Defendant's request for a voluntariness hearing and his motion to suppress should be denied. B. DEFENDANT WAS NOT THE SUBJECT OF AN ILLEGAL ARREST Defendant previously moved to suppress the fruit of an alleged unlawful arrest and the United States timely responded to that motion. The United States respectfully incorporates that response by reference herein. C. THE UNITED STATES HAS PROVIDED ADEQUATE EXPERT NOTICE Defendant moves to exclude any additional experts or additional testimony that was not previously noticed. The United States only intends to offer expert witnesses and testimony previously noticed and referenced in Defendant's moving papers at page 8. However, the United States respectfully reserves the right to call additional expert witnesses in rebuttal if the need arises. At this point, the United States is not in the possession of any reciprocal discovery which would lead it to the conclusion that additional expert testimony would be necessary. D. EVIDENCE GOVERNED BY FEDERAL RULES OF EVIDENCE 404(B), 608 AND 609 The United States does not intend to offer any evidence governed by Federal Rules of Evidence, 404(b) and 608. However, the United States respectfully reserves the right to impeach Defendant with the fact of his prior felony conviction under Federal Rule of Evidence, 609. // 3

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E.

ATTORNEY-CONDUCTED VOIR DIRE Defendant requests the opportunity to personally voir dire the prospective members of the jury.

The United States has no objection to this request provided the United States is also allowed the opportunity to personally voir dire the prospective jurors. IV CONCLUSION For the foregoing reasons, the United States asks that the Court deny Defendant's motions, except where unopposed. DATED: April 21, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Paul L. Starita PAUL L. STARITA Assistant U.S. Attorney Attorneys for Plaintiff United States of America Email: [email protected]

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1 2 3 4 v. 5 JULIO BELTRAN-LAY, 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3470-BEN

CERTIFICATE OF SERVICE

Defendant. 7 8 9 IT IS HEREBY CERTIFIED THAT: 10 11 12 13 14 1. 15 16 17 None 18 19 20 21 22 23 24 25 26 27 28 Timothy Scott, Esq. Atty for Defendant

I, Paul L. Starita, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of United States' Response to Defendant's Motions In Limine, together with statement of facts, memorandum of points and authorities on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them.

I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case:

the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 21, 2008. /s/ Paul L. Starita PAUL L. STARITA

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