Free Trial Brief - District Court of California - California

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KAREN P. HEWITT United States Attorney PAUL S. COOK Assistant U. S. Attorney California Bar No. 79010 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5687 [email protected] Attorneys for the United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 CARLOS ESTRADA-JIMINEZ, 14 15 16 17 The United States of America, by its counsel, Karen P. Hewitt, 18 United States Attorney, and Paul S. Cook, Assistant United States 19 Attorney, hereby files its trial memorandum in the above-referenced 20 case. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 Defendant. ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3209-JLS DATE: April 7, 2008 TIME: 9:00 a.m. GOVERNMENT'S TRIAL MEMORANDUM

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1 2 A. 3 4 Indictment

I STATEMENT OF THE CASE

On November 11, 2007, Defendant was indicted in a one count Indictment with being a Deported Alien Found in the United States, in 5 violation of Title 8, U.S.C., Sections 1326 (a) and (b). 6 B. 7 A jury trial is scheduled for April 7, 2008 at 9:00 a.m. before 8 the Honorable Janis L. Sammartino, United States District Judge. 9 United States expects its case-in-chief to last approximately one day. 10 C. 11 Robert Rexrode, has been appointed to represent Defendant. 12 D. 13 Defendant is in custody. 14 E. 15 It is anticipated that Defendant will require the assistance of 16 a Spanish-speaking interpreter. 17 F. 18 Defendant has not filed a jury waiver. 19 G. 20 The Court heard Defendant's pre-trial motions on January 11, 21 2007. 22 Misinstruction of the Grand Jury; to Dismiss Due to Failure to Allege 23 All Elements; To Strike Surplusage; to Produce Grand Jury Transcripts. 24 The Court granted the Government's request for fingerprint exemplars. 25 The Court will hear Defendant's Motion to Suppress Statement and the 26 Voluntariness Hearing on April 7, 2008. 27 28 2
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Trial Status

The

Defense Counsel

Defendant's Custody Status

Interpreter

Jury Waiver

Pretrial Motions

The Court denied Defendant's Motions: To Dismiss Due to

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H.

Stipulations

The parties have not entered into any stipulations at this time. I. Discovery

The United States has and will continue to comply with its discovery obligations. The Defendant has not provided any reciprocal discovery to date. II STATEMENT OF FACTS On Friday, August 24, 2007, at 10:30 a.m., USBP Agents responded

9 to a radio call from a Remote Video Surveillance System Operator that 10 two people were seen headed north from the secondary border fence in 11 an area approximately 100 yards north of the U.S./Mexico border, five 12 miles east of San Ysidro Port of Entry and one mile west of the Otay 13 Mesa port of Entry. Agents on All Terrain Vehicles (ATVs) went to the 14 area known as Druckers Lane and began to search parking lots used to 15 store large truck trailers. Agents first found one of the individuals 16 (not 17 surveillance camera operator had lost sight of the Defendant as he was 18 headed toward a fence separating an adjacent parking lot. 19 continued to search, and eventually found the Defendant hiding in the 20 wheel well area of another parked trailer in an adjacent parking lot. 21 The Defendant was questioned in the field and admitted that he was a 22 Mexican citizen. 23 entered the United States from Mexico without valid immigration 24 documents. 25 Beach Border Patrol Station where he was initially advised of his 26 immigration administrative rights. 27 28 3
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the

Defendant)

hiding

on

top

of

a

parked

trailer.

The

An Agent

The Defendant also admitted that he illegally

He was taken into custody and processed at the Imperial

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A subsequent record check revealed that Defendant had a criminal history and several prior deportations/removals from the United States. At 2:32 p.m., Defendant was advised that the prior

administrative rights were no longer applicable, as criminal charges were being brought against him. He was advised of his right to

Consular Notification, but declined to have the Mexican Consulate notified. Defendant was advised of his Miranda rights in Spanish.

Defendant indicated he understood his Miranda rights, agreed to speak to the Agents without an attorney present, and signed a waiver to that effect. In a video recorded interview, Defendant again admitted that

he was a citizen of Mexico, born in Tijuana, who had been previously deported and had no permission to be in the United States. He also

admitted that he was trying to go to Los Angeles, California. Defendant had previously been removed from the United States pursuant to an Immigration Judge's order on November 4, 1996. He

illegally returned to the United States on November 7, 1996, was charged and subsequently pled guilty, on April 2, 1997, to a violation of Title 8 U.S.C. § 1326. Defendant was again ordered deported from

the United States by an Immigration Judge on March 25, 1997, and was removed, pursuant to that Order, on April 7, 1998, after he served his sentence for the 1996 § 1326 conviction. He has illegally re-entered He was

this country and been removed two more times since 1998.

removed from the United States on April 19, 2001, at Calexico, California, and again on July 13, 2007, after being apprehended on July 8, 2007, in the same Drucker's Lane area where he was found in the present case.

4

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Defendant has two convictions in 1987 for Auto Theft.

He was

convicted in 1988 for Burglary and in 1989 for Escape. As noted above he pled guilty on April 2, 1997, to Deported Alien Found in the United States. III WITNESSES The United States may call the following witnesses, although it

7 reserves the right to change the order of these witnesses, substitute 8 witnesses, add, or omit one or more witnesses. 9 1. 10 2. 11 3. 12 4. 13 6. 14 7. 15 8. 16 9. 17 10. 18 11. 19 20 21 22 23 24 25 26 27 28 IV EXHIBITS The United States will provide a complete exhibit list prior to trial and has allowed defense counsel to examine the exhibits before trial. The United States also requests time to examine the defense The United States intends to offer into Alexis Carrol - A-File Custodian David Beers - Fingerprint Expert DEO Horton (4/19/01 removal) DEO Aguirre (4/7/98 removal) DEO Michael Aguilar (7/13/07 removal) United States Border Patrol Agent Roman United States Border Patrol Agent Zazueta United States Border Patrol Agent Fregoso United States Border Patrol Agent Rodriguez United States Border Patrol Agent Llamas

exhibits before trial. evidence the following: 1. 2.

Photos of the arrest location Immigration Documents pertaining to Defendant 5
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V JURY INSTRUCTIONS The United States will file its proposed jury instructions under

3 separate cover. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. 4. 3. A. VI LEGAL ISSUES Elements of the Charged Offense

The Government must prove each of the following elements beyond a reasonable doubt: 1. 2. Defendant was deported from the United States; After deportation, the defendant voluntarily entered the United States; After the defendant entered the United States he knew that he was in the United States and knowingly remained; Defendant was found in United States without having obtained the consent of the Attorney General or the Secretary of the

Department of Homeland Security to reapply for admission into the United States; and Defendant was an alien at the time of his entry into the United States. See 9th Cir. Model Crim. Jury Instructions 9.5B (2007); see United States v. Salazar-Gonzalez, 458 F.3d 851, 856 (9th Cir. 2006). B. ALIENAGE The Ninth Circuit has held that "deportation documents are admissible to prove alienage under the public records exception to the hearsay rule." United States v. Hernandez-Herrera, 273 F.3d 1213, The Ninth Circuit also has described the type

1218 (9th Cir. 2001).

of documents that may be used as evidence of alienage: 6
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Although neither a deportation order, see United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997) (citing United States v. Ortiz-Lopez, 24 F.3d 53, 55 (9th Cir. 1994)), nor the defendant's own admissions, see United States v. Hernandez, 105 F.3d 1330, 1332 (9th Cir. 1997), standing alone, will support the conclusion that a defendant is an alien, here the government offered Ramirez-Cortez's prior deportation order, admissions Ramirez-Cortez made in his underlying deportation proceeding, and the testimony of an INS agent that his review of Ramirez-Cortez's immigration records reflected that Ramirez-Cortez was an alien. Based on this evidence, a rational trier of fact could have found beyond a reasonable doubt that Ramirez-Cortez was an alien. Cf. United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997) (finding sufficient evidence of alienage where the government's evidence consisted of a prior deportation order, the defendant's admissions to an INS agent that he was a Mexican citizen, and his admissions during the deportation hearing that he was not a United States citizen); United States v. Contreras, 63 F.3d 852, 858 (9th Cir. 1995) (holding that sufficient evidence supported the conviction when the government introduced a prior deportation order, the deportation hearing transcript, which indicated that the defendant admitted his Mexican citizenship under oath, and testimony of an INS agent that the defendant was a Mexican citizen). United States v. Ramirez-Cortez, 213 F.3d 1149, 1158 (9th Cir. 2000)

15 (emphasis added). 16 The Ninth Circuit has also affirmed the admission of Orders to 17 Show Cause, see Sotelo, 109 F.3d at 1449, admissions made during 18 deportation hearings, see id., and transcripts, see Contreras, 63 19 F.3d at 858. 20 evidence that was admitted at trial which supported a defendant's 21 §1326 conviction: 22 23 24 25 26 27 28 The prosecution also presented several documents from the prior deportation proceeding. During the deportation hearing, Sotelo admitted, through his lawyer, allegations in the order to show cause that he is not a citizen or national of the United States and he is a native and citizen of Mexico. The prosecution presented the order to show cause and an advisement of rights form, which Sotelo signed. The advisement of rights form stated that Sotelo admitted he was in the United States illegally. Finally, the prosecution presented the order of deportation and the 7
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In Sotelo, the Ninth Circuit described a list of

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warrant of deportation.

deportation,

evidencing

Sotelo's

actual

Sotelo, 109 F.3d at 1449 (emphasis added). 3 C. 4 The Ninth Circuit has held that deportation "refers to the 5 removal from the country of aliens who are physically present in the 6 United States." 7 (9th Cir. 2001); see also United States v. Luna-Madellaga, 315 F.3d 8 1224, 1227 (9th Cir. 2003) (holding that §1326 speaks only of 9 "removal" and that the statute "plainly turns on the alien's physical 10 removal -- not the order of removal"). Thus, the Government need only 11 prove beyond a reasonable doubt that Defendant physically left the 12 country sometime between the time he was ordered deported and the time 13 he 14 Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (citation 15 omitted). 16 Homeland Security's Central Index System ("CIS") and Defendant's own 17 admissions will be used to prove he physically left the United States 18 before he was found in this country again. 19 D. 20 The Ninth Circuit has stated what is required for permission to 21 reapply: 22 23 24 25 26 27 28 The INS has promulgated regulations that govern the process by which the Attorney General will "[c]onsent to [a deported alien] reapply[ing] for admission[.]" 8 C.F.R. §212.2. These regulations include the requirement that a deported alien must have remained outside of the United States for a minimum of five consecutive years. Id. §212.2(a). Pina-Jaime did not meet this requirement. Nor did he submit the required form I-212 to the INS to obtain consent of the Attorney General to reapply for admission. [Citations omitted.] Accordingly, the Attorney General did 8
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PHYSICAL REMOVAL

United States v. Romo-Romo, 246 F.3d 1272, 1275-76

was

found

in

the

United

States.

See

United

States

v.

Here, the contemporaneous entry into the Department of

EXPRESS CONSENT

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not "expressly consent[ ] to [Pina-Jaime's] reapplying for admission" as required by the statute. See 8 U.S.C. §1326(a)(2). United States v. Pina-Jaime, 332 F.3d 609, 611-12 (9th Cir. 2003). As in Pina-Jaime, there is no evidence in this case that

4 Defendant has properly sought or actually obtained permission to enter 5 the United States. 6 lack of permission is irrelevant. 7 United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 8 2005), is instructive in that regard. 9 defendant sought to elicit testimony on cross-examination from a 10 witness for the United States regarding the following claims: (1) INS 11 computers are not fully interactive with other federal agencies' 12 computers; (2) over 2 million documents filed by immigrants have been 13 lost or forgotten; (3) other federal agencies have the ability and 14 authority to apply for an immigrant to come into the United States; 15 and (4) the custodian never checked with the other federal agencies 16 to inquire about documents relating to the defendant. 17 sustained objections to this line of cross-examination finding that 18 it was irrelevant. Id. The Ninth Circuit agreed stating that "[n]one 19 of that information is relevant on the facts of this case, because it 20 is uncontested that [the defendant] never made any application to the 21 INS or any other federal agency." 22 Defendant has not presented any evidence that he properly applied for 23 reentry. As in Rodriguez, any testimony from witnesses for the United 24 States regarding the types of checks performed to show the lack of an 25 application for reentry would be irrelevant. 26 27 28 9
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As a result, any cross-examination regarding the

In Rodriguez-Rodriguez, the

Judge Lorenz

Id.

Here, as in Rodriguez,

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E.

LAWFULNESS OF PRIOR DEPORTATION Since physical removal is all that is required, the lawfulness

of a defendant's prior deportation is not an element of the offense under §1326 and should not be presented to the jury. See United

States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996) (en banc). The Government need only prove that a deportation proceeding

actually occurred and that the defendant was consequently deported. United States v. Medina, 236 F.3d 1028, 1031 (9th Cir. 2001). F. ADMISSIBILITY OF IMMIGRATION DOCUMENTS The Government intends to offer documents from the "A-File" maintained by the Department of Homeland Security and its predecessors that correspond to the defendant's name in order to establish the defendant's alienage, prior deportations, and that he was subsequently found in the United from States without having sought The or obtained are

authorization

the

Attorney

General.

documents

self-authenticating "public records," or, alternatively, "business records." See Fed. R. Evid. 803(8)(B) and 803(6).

The Ninth Circuit has held that A-file documents are admissible under the public records exception to the hearsay rule. See e.g.,

United States v. Hernandez-Herrera, 273 F.3d 1213, 1217-18 (9th Cir. 2001) ("We have held that deportation documents are admissible to prove alienage under the public records exception to the hearsay rule."); United States v. Loyola-Dominguez, 125 F.3d 1315, 1317 (9th

Cir. 1997) ("This court has held that warrants for deportation are generally admissible under Federal Rule of Evidence 803(8) and are not subject to the law enforcement exception to that rule."). In both the Hernandez-Herrera and Loyola-Dominguez cases, the defendant appealed 10
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his § 1326 conviction, arguing that the district court erred in admitting A-file documents such as the warrant of deportation and the Immigration Judge order. The Ninth Circuit upheld the admissibility

of these documents as public records. The Ninth Circuit has also explained that no foundation is required for the admissibility of A-file documents. As public The

records, such documents are presumed at law to be trustworthy. court explained in Loyola-Dominguez:

the public records exception is one of the few hearsay exceptions that does not require a foundation. Instead, documents that fall under the public records exception "are presumed trustworthy, placing `the burden of establishing untrustworthiness on the opponent of the evidence.'". . . . Because the case law clearly establishes that warrants of deportation are public records within the meaning of Rule 803(8), it was Loyola-Dominguez's obligation to demonstrate that the evidence was untrustworthy; he failed to do so. Loyola-Dominguez, 125 F.3d at 1318.

15 At trial, the Government will ask a Border Patrol agent to 16 provide some context for the A-file documents and their role in the 17 deportation process. 18 File and about some of the documents contained within the A-File. The 19 agent will also testify to results of database searches that she 20 personally conducted to determine whether the defendant applied for 21 or obtained authorization from the Attorney General of the United 22 States to enter into the United States. 23 be helpful to the jury, because the testimony will give the jury some 24 context against which to appreciate the significance of the A-file 25 documents. 26 27 28 11
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The agent will testify to the purpose of the A-

The agent's testimony will

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The Order of the Immigration Judge is a public records and therefore not excluded by the hearsay rule. See Fed. R. Evid. 803(8); United States v. Hernandez-Herrera, 273 F.3d 1213, 1217-18 (9th Cir. 2001); United States v. Loyola Dominguez, 125 F. 3d 1315, 1317-18 (9th Cir. 1997). 902(4). It is also self-authenticating under Fed. R. Evid. the Certificate of Non-Existence of Record

Similarly,

("CNR"), which will be used to establish Defendant had not applied for or received permission to re-enter the United States, is admissible as a self-authenticating, public record. See United States v.

Cervantes-Flores, 421 F.3d 825, 831-34 (9th Cir. 2005). G. EXPERT TESTIMONY

The Government intends to call a fingerprint expert as a witness for the purpose of identifying the defendant as the person who was previously arrested and deported. Such expert testimony should be

admitted to assist the jury in understanding that this defendant is an alien who was found in the United States after having been deported. See Federal Rule of Evidence 702; United States v. Alonso,

48 F.3d 1536, 1539 (9th Cir. 1995); United States v. Lennick, 18 F.3d 814, 821 (9th Cir. 1994). District Courts routinely admit expert testimony regarding

fingerprint identification. See United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996) (allowing admission of expert testimony on fingerprint identification); United States v. Sullivan, 246 F. Supp. 2d 700, 704 (E.D. Ky. 2003) (expert testimony regarding fingerprint

identification was found "sufficiently reliable under Daubert"); United States v. Llera Plaza, 188 F. Supp. 2d 549, 576 (E.D. Pa. 2002)

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(fingerprint expert could give expert opinion consistent with the Daubert decision and federal procedural rules). The Government has provided written notice of its intention to use expert testimony. This notice also included a written summary of

testimony the United States intends to use pursuant to Federal Rules of Evidence 702, 703, and 705, during the trial in the abovereferenced criminal matter. H. The Court Should Admit Evidence Of Defendant's Illegal Entries Pursuant To Fed. R. Evid. 404(b) Prior

The Government intends to introduce defendant's prior arrests on 10 November 7, 1996 and July 8, 2007 for illegal entry as "other act" 11 evidence under Fed. R. Evid. 404(b) to establish intent, knowledge, 12 and absence of mistake. 13 Evidence of other crimes, wrongs, or acts is not admissible under 14 Fed. R. Evid. 404(b) to prove the character of the defendant in order 15 to show action in conformity therewith. 16 crimes, wrongs, or acts is admissible under Rule 404(b) so long as its 17 introduction 18 opportunity, 19 absence of mistake or accident. 20 is "an inclusionary rule" under which evidence is inadmissable "only 21 when it proves nothing but the defendant's criminal propensities." 22 United States v. Diggs, 649 F.2d 731, 737 (9th Cir.), cert denied, 454 23 U.S. 970 (1981), overruled on other grounds, 24 McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 25 824 (1984). 26 if: 27 28 13
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However, evidence of other

is

for

other

purposes

such

as

proof

of

motive, or

intent,

preparation,

plan,

knowledge,

identity,

Fed. R. Evid. 404(b).

Rule 404(b)

United States v.

Evidence of other acts is admissible under Rule 404(b)

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A.

the evidence tends to prove a material element of the offense charged:

B. C.

the prior act is not too remote in time; the evidence is sufficient to support a finding that the defendant committed the other act; and

D.

(where knowledge and intent are at issue) the act is similar to the offense charged.

United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 10 2004) (citing United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir. 11 1994)); United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 12 1993) (evaluating admissibility under Rule 404(b) for materiality, 13 similarity, sufficiency, and temporal proximity). 14 Here, Defendant's prior arrests for illegal entry satisfies these 15 four elements. 16 intent and conscious desire to enter the United States. United States 17 v. Longoria, 624 F.2d 66,69 (9th Cir. 1980) (Court did not err in 18 admitting 19 illegal aliens two years prior because it was "highly relevant and 20 admissible to show the requisite knowledge, criminal intent, and lack 21 of innocent purpose"). 22 admission of other act evidence to prove absence or mistake or refute 23 an "innocent dupe" defense. See United States v. Ramirez-Jiminez, 967 24 F.2d 1321, 1325-26 (9th Cir. 1992) (evidence that defendant had been 25 previously observed at a residence used for harboring illegal aliens 26 admissible to show knowledge or reckless disregard in trial for 27 28 14
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First, the convictions are material to Defendant's

into

evidence

defendant's

conviction

for

transporting

The Ninth Circuit has also upheld the

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transporting illegal aliens); United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir. 1991). Second, the other act ­ especially

in the case of the July 8, 2007 arrest which occurred only one and a half months before the charged crime -- is not too remote in time. There is no bright-line rule requiring the Court to exclude other act evidence after a certain period of time has elapsed. See United

States v. Brown, 880 F.2d 1012, 1015 n. 3 (9th Cir. 1989). Third, the Government will present sufficient evidence of

Defendant's prior arrest for illegal entry. Other act evidence under Rule 404(b) should be admitted if "there is sufficient evidence to support a finding by the jury that the defendant committed the similar act." Huddleston v. United States, 485 U.S. 681, 685 (1988). The

testimony of a single witness satisfies the low-threshold test of sufficient evidence for purposes of Rule 404(b). See United States

v. Dhingra, 371 F.3d 557, 566-57 (9th Cir. 2004) (citing United States v. Hinton, 31 F.3d 817, 823 (9th Cir. 1994)). Here, the Government

will satisfy this low-threshold test of sufficient evidence through the testimony of the arresting U.S. Border Patrol agent. Fourth, Defendant's prior arrest for illegal entry is similar to the crime charged in this case. In fact, in July, 2007, Defendant was found in the United States at almost the same location he was arrested in the instant case. Finally, any prejudice could be minimized by a limiting

instruction to the jury instructing them to consider the other acts as it relates to Defendant's knowledge, intent, absence of mistake,

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and for no other purpose.

See United States v. Montgomery, 150 F.3d

983, 1001 (9th Cir. 1998) (an appropriate limiting instruction is a factor weighing in favor of admission of Rule 404(b) evidence). Date: April 3, 2008.

Respectfully submitted, KAREN P. HEWITT United States Attorney

PAUL S. COOK Assistant United States Attorney

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1 2 3 4 5 6 7 8 v.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 07cr3209-JLS

CERTIFICATE OF SERVICE

CARLOS ESTRADA-JIMINEZ, Defendant.

IT IS HEREBY CERTIFIED THAT: 9 10 11 12 13 14 1. 15 16 17 Executed on April 3, 2008. 18 19 20 21 22 23 24 25 26 27 28 17
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I, Paul S. Cook, 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 Government's Response and Opposition to Defendant's Motions on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. ROBERT REXRODE

I declare under penalty of perjury that the foregoing is true and correct.

s/Paul S. Cook PAUL S. COOK