Free Response to Motion - District Court of California - California

Case 3:07-cr-03470-BEN

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TIMOTHY A. SCOTT California Bar No. 215074 LAW OFFICES OF TIMOTHY A. SCOTT 1350 Columbia Street, Suite 600 San Diego CA, 92101 Telephone: (619) 794-0451 Facsimile: (619) 652-9964 email: [email protected] Attorneys for Julio Beltran-Lay

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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(HONORABLE ROGER T. BENITEZ)
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UNITED STATES OF AMERICA,
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) ) Plaintiff, ) ) v. ) ) Julio Beltran-Lay ) ) Defendant. ) __________________________________

Case No. 07cr3470-BEN Date: April 28, 2008 Time: 2:00 p.m. RESPONSE TO GOVERNMENT'S MOTIONS INLIMINE

I. Introduction
The Court is presented with the following issues in the government's motions inlimine: · Evidence regarding alienage and residency: Under established Ninth Circuit law,1 a defendant in a § 1326 trial is entitled to contest the element of alienage. Mr. Beltran-Lay has disclosed a fair bit of evidence that does so.2 The government's motions inlimine, however, seek to exclude "reference to why the defendant

See United States v. Meza-Soria, 935 F.2d 166 (9 th Cir. 1991); United States v. OrtizLopez, 24 F.3d 53 (9 th Cir. 1994). See Defendant's Motions to Pre-Admit Documents filed April 14, 2008 (moving to preadmit 1) baptism certificate showing place of birth as Los Angeles, California; 2) school records showing birthplace as California; and 3) certificate of no record of birth in Tijuana).
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reentered the United States" 3 and to "prohibit reference to prior residency." 4 The cases that the government cites in support of its argument are distinguishable from this alienage case, and cannot prevent Mr. Beltran-Lay from presenting evidence that he may well be a United States citizen. He therefore asks that these motions be denied to that extent that they impinge upon his right to challenge alienage. · Other Government Motions in Limine: The remainder of the government's motions generally do not identify specific pieces of evidence, instead restating general rules of evidence and seeking to preclude various categories of evidence that a defendant might raise at trial. The government's motions are generally either unopposed, or should be denied without prejudice as vague and/or moot.

III. Argument in Response
A. Mr. Beltran-Lay has no objection to the case agent's presence during trial. Mr. Beltran-Lay does not oppose the government's request to have the case agent present during trial. If necessary, Mr. Beltran-Lay requests the same opportunity for his lead investigator.

B.

Mr. Beltran-Lay will not argue "political, religious, or moral beliefs" about immigration law, but will exercise his right to challenge the element of alienage at trial. Citing United States v. Komisaruk,5 the government seeks to prevent "reference to why

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Government Motions inlimine at 4. Id. at 5. 885 F.2d 490 (9 th Cir. 1990).
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the defendant reentered the United States." 6 Komisaruk bears little relation to this case,7 however, so the government's motion should be denied. In United States v. Komisaruk 8 ­ a case involving a conviction for vandalizing an Air Force computer ­ the district court excluded the defendant's "political, religious, or moral beliefs," about nuclear war, concluding that they were irrelevant. The Ninth Circuit upheld the conviction, finding no error in the district court's ruling. Here, Mr. Beltran-Lay does not seek to offer any political, religious, or moral beliefs about United States politics or policies. The fairness of the immigration laws are not at issue, and Mr. Beltran-Lay will not offer his personal beliefs as to his right to be present in the United States. Komisaruk is thus factually dissimilar to this case, and does not control here. Instead, this case is governed by Ninth Circuit law holding that a § 1326 defendant is entitled to challenge the element of alienage, and to elicit evidence that might cast doubt on that part of the government's case. In United States v. Meza-Soria,9 for example, the Ninth Circuit held that a defendant is "entitled to put the government to its burden of proof on the issue of alienage" by introducing evidence that he or she is not an alien.10 As Meza-Soria makes clear, "[W]hen a person is charged with the felony of being an alien who has reentered the United States after being deported, the government must prove alienage beyond a reasonable doubt. The person is entitled to contest the government's evidence by submitting his own evidence of citizenship."
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Mr. Beltran-Lay seeks to do just that, offering: 1) the absence of a Mexican

birth certificate; 2) Mr. Beltran-Lay's baptismal certificate, created in the United States; and 3) public school records that designate his place of birth as California. This evidence is probative
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Government Motions at 4. For the Court's convenience, a copy of the Komisaruk opinion is attached as Appendix A.

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885 F.2d 490 (9 th Cir. 1980) 935 F.2d 166, 170 (9 th Cir. 1991). Id. at 170. 935 F.2d 166, 171 (9 th Cir. 1991) (emphasis added).
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of his alienage. It is therefore relevant and admissible and should be submitted to the trier of fact. The government's motion should be denied to the extent it would purport to limit this admissible evidence.

C.

The government's motion to prohibit reference to Mr. Beltran-Lay's prior residency in the United States should also be denied to the extent that it impinges upon his ability to contest alienage. Citing United States v. Ibarra12 and the district court case, United States v. Serna-Vargas,13 the

government seeks to exclude prior evidence of residency in the United States.14 Those cases are distinguishable, however, and evidence of Mr. Beltran's residency remains relevant and admissible to the extent it relates to his alienage defense to this charge. In United States v. Ibarra15, a defendant sought to introduce evidence of prior residency, but failed to tie it to any valid defense at trial.16 The Ninth Circuit upheld the conviction, reasoning that because Ibarra had failed to demonstrate how the evidence could possibly affect the issue of his alienage, the district court properly excluded it as irrelevant. While this portion of the court's reasoning is correctly stated, it remains incomplete and inapplicable to the present case. Before the Ibarra court affirmed that the evidence Ibarra sought to introduce was irrelevant, it unequivocally confirmed that the defendant has the right to attack alienage: "[A] defendant can present evidence to rebut the government's showing of alienage but the defendant must at least make an offer of proof and have probative evidence to establish a triable issue of alienage before the evidence can be presented to the jury" the Court held.17 Because Mr. Beltran-Lay's proposed
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3 F.3d 1333, 1334 (9 th Cir. 1993). 917 F. Supp. 711 (C.D. Cal. 1996). See Government's Motions at 6. 3 F.3d 1333, 1334 (9 th Cir. 1993). A copy of this opinion, and the others cited in this section of the argument, are attached for the Court's reference. Id. at 1335.
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evidence relates directly to alienage, it is admissible under Meza-Soria, not precluded by Ibarra. The government's reliance on Ibarra is misplaced consequently. United States v. Serna-Vargas18 does not support the government's position either. There, the defendant attempted to re-litigate"de facto" citizenship as an affirmative defense. The district court simply confirmed that there is no "de facto" citizenship defense, and that these factors should have been litigated in the deportation hearing instead. Mr. Beltran-Lay's case, of course, does not pertain to "de facto" citizenship; it pertains to citizenship. A prior deportation does not preclude later evidence attacking alienage. As the Ninth Circuit held in United States v. Ortiz Lopez19 "[A]llowing deportation orders to establish the element of alienage in a later criminal trial would eviscerate the element altogether. It would impose criminal liability for `any person' who has been previously deported and reenters the United States. But the statute imposes criminal liability only on `any alien' who reenters after deportation."20 Consequently, a criminal defendant is entitled to attack alienage, an essential element of the alleged instant offense, despite prior deportation. Serna-Vargas does not hold to the contrary. For all of these reasons, Mr. Beltran-Lay should be permitted to put on his evidence attacking alienage. He asks that the government's motion be denied. D. Mr. Beltran-Lay does not presently intend to introduce evidence of poor INS recordkeeping. Mr. Beltran-Lay does not intend to pursue this issue at trial unless the government opens the door to it through its examination of witnesses on direct or cross. // // //

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917 F. Supp. 711 (C.D. Cal. 1996). 24 F.3d 53 (9 th Cir. 1994). Id. at 56 (emphasis added).
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E.

Evidence of Mr. Beltran's health, age, or education will only arise if relevant to testimony at trial, and he will not argue punishment. The government asks this Court to preclude reference to Defendant's "health, age,

education and potential punishment." To begin with, Mr. Beltran-Lay will not argue about the potential sentence that he might receive if convicted. Mr. Beltran-Lay does not believe that his health will be an issue either. Testimony or argument about age, education, or finances will only be presented if reasonably related to evidence in a defense case in chief or rebuttal. Ninth Circuit Model Jury Instruction § 3.1, which the government often cites in its papers, instructs jurors to "not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy." This proper limiting instruction will amply guard against any perceived prejudice from "sympathetic" evidence inextricably interwoven with the defense evidence, because, as the government often points out, juries are generally assumed to follow jury instructions. In sum, Mr. Beltran-Lay will not attempt to introduce otherwise inadmissible evidence, and the government should object at trial if it feels otherwise. The government's motion inlimine should be denied as moot and/or overbroad.

F.

Mr. Beltran-Lay does not intend to elicit expert testimony, but reserves the right to call an expert immigration witness to discuss the conditions under which Mr. Beltran-Lay would have made incriminating statements during administrative deportation. The government moves to exclude defense experts at trial. Mr. Beltran-Lay does not

presently plan to call any expert witnesses at trial. In an abundance of caution, however, Mr. Beltran-Lay gives notice that if the government seeks to elicit statements that Mr. Beltran-Lay made during his administrative deportation from the U.S., then Mr. Beltran-Lay may call an immigration attorney familiar with immigration proceedings in Fresno, California to testify as a fact witness. The witness would discuss the length and tone of these administrative interviews, the choices presented to persons subject to deportation, the pressure brought upon them to sign papers or face lengthy detention, and similar topics. This evidence may not constitute expert testimony at all, and it would only be in rebuttal. It would also be moot if the Court excludes
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statements, as Mr. Beltran-Lay has requested. Mr. Beltran-Lay discloses this evidence now, however, to the extent the government seeks to introduce statements at trial. G. Mr. Beltran-Lay submits on the admissibility of A-file documents, but asks that the rulings be applied consistently during cross-examination as well. The government moves to admit certain A-file documents at trial. Mr. Beltran-Lay submits on the issue. It is worth noting, however, that if the government seeks to introduce some portions of the A-file, it should not be surprised if Mr. Beltran-Lay seeks to highlight other portions of the same documents or file. Mr. Beltran-Lay should be permitted to do so under Fed. R. Evid. 106 (the rule of completeness), 803(6) (business records), and/or 803(8)(C) (public records introduced against the government).

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IV. Conclusion
For the foregoing reasons, these motions should be granted.

Dated: April 21, 2008

Respectfully submitted, s/ Timothy A. Scott

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TIMOTHY A. SCOTT Attorneys for Mr. Beltran-Lay