Free Trial Brief - District Court of California - California

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KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant United States Attorney California Bar No. 166022 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7843 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. PEDRO CRUZ-TERCERO, Defendant. ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3021-WQH DATE: TIME: March 18, 2008 9:00 a.m.

GOVERNMENT'S TRIAL MEMORANDUM

COMES NOW, the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Christopher P. Tenorio, Assistant United States Attorney, and hereby files its trial memorandum. // // // // // // // // //

Case 3:07-cr-03021-WQH

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1 2 3 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 A. INDICTMENT

I. STATUS OF THE CASE

Defendant Pedro Cruz-Tercero ("Cruz") is charged in a one-count indictment, returned November 7, 2007, with Deported Alien Found in the United States, in violation of Title 8, United States Code, Section 1326(a) and (b). B. TRIAL STATUS

A jury trial is scheduled for Tuesday, March 18, 2008, at 9:00 a.m. before the Honorable William Q. Hayes, United States District Court Judge. C. The estimated length of trial is one day.

STATUS OF COUNSEL

Cruz is represented by counsel Christian De Olivas. D. CUSTODY STATUS

Cruz is in custody. E. INTERPRETER

The Government will not require an interpreter for witnesses, however, Cruz may require one for interpreting testimony. F. JURY WAIVER

Cruz has not filed a jury waiver. G. PRE-TRIAL MOTIONS

On December 31, 2007, Cruz filed motions to compel discovery and grant leave to file further motions. On January 28, 2008, Cruz filed motions to dismiss the indictment for failure to allege essential elements and to suppress statements. The Government filed its On

response and opposition to Cruz's motions on February 4, 2008. the same date, the Government fingerprint exemplars.

moved for reciprocal discovery and

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On February 4, 2008, the Court granted the Government's motions and continued Defendant's motions. On March 3, 2008, Cruz filed motions in limine to disallow 609 evidence regarding other crimes, allow reference to punishment

enhancement, and allow U.S. Border Patrol agents to testify at trial. Cruz also filed additional motions to suppress statements due to violation of Miranda, and suppress statements due to invalid waiver. The Government filed its response in opposition to Defendant's motions on March 5, 2008. H. STIPULATIONS

To date, the parties have not entered into any stipulations. I. DISCOVERY

The Government has complied with its discovery obligations and will continue to do so. received. II. STATEMENT OF FACTS A. PRESENT OFFENSE To date, no reciprocal discovery has been

On October 16, 2007, at approximately 3:45 a.m., Border Patrol Agents Jason Wardlow and Daniel Alvarado encountered Defendant Pedro Cruz-Tercero driving a white 1995 Ford Econoline van on Highway 76. The agents knew that the area where Defendant was driving is a route commonly used by alien smugglers to circumvent the I-15 Border Patrol checkpoint. The van sped up as it passed the agents. The agents

lost sight of the van for approximately 30 minutes, but later found it parked with its doors open. After 10 minutes, the agents

responded to sounds in nearby brush and located Defendant. //

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Agent Wardlow identified himself as a Border Patrol Agent. Pursuant to an immigration inspection, Defendant stated that he was the driver of the van and that he was a Mexican citizen with no immigration documents to permit him to be or remain in the United States. The agents arrested Defendant and transported him to the

Murrieta Border Patrol Station. At the station, at approximately 5:45 a.m., Agent Alvarado advised Defendant of his Miranda rights, which Agent Wardlow

witnessed.

At 7:45 a.m., Defendant made a video-taped statement in

which he admitted his prior convictions and that had not applied for readmission into the United States. Defendant was subsequently indicted on November 7, 2007 for Deported Alien Found in the United States, in violation of Title 8, United States Code, Section 1326(a) and (b). B. PRIOR HISTORY 1. Criminal History

Defendant's prior criminal convictions include the following. On January 21, 2000, Defendant was convicted on of Assault of a Person with a Semi-automatic Firearm (felony), in violation of California Penal Code § 245(b), in the Superior Court of San Diego County. Defendant was sentenced to three years probation and 270

days in jail. Defendant's probation was revoked on October 18, 2001, and he was sentenced to six years of prison. On October 15, 2001, Defendant was convicted of Possession of a Controlled Substance, in violation of California Health and Safety Code § 11377(a), in the Superior Court of San Diego County.

Defendant was sentenced to four years in prison. //

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2.

Immigration History

Defendant was previously ordered deported on March 12, 2001. Defendant was most recently deported on February 16, 2005 through Calexico, California. III. WITNESSES The Government expects to call the following witnesses in its case-in-chief, although it reserves the right to change the order of these witnesses, substitute witnesses, add witnesses or omit one or more of these witnesses. 1. 2. 3. 4. 5. Border Patrol Agent Jason Wardlow Border Patrol Agent Daniel Alvarado Immigration Enforcement Agent Gregory Floyd Fingerprint Expert David Beers Senior Patrol Agent Jorge Salazar IV. EXHIBIT LIST The following is a tentative exhibit list of evidence. The

Government does not necessarily intend to seek admission of all these items, and may amend the list to include additional items. 1. 2. 3. 4. 5. 6. 7. Immigration Fingerprint Card (10/16/07) Record of Deportable Alien (I-213) (10/16/07) Final Disposition Report (R-84)(10/16/07) Warrant of Removal/Deportation (I-205) (10/16/07) Warrant of Removal/Deportation (I-205) (1/18/05) Warning to Alien (I-294) (1/18/05) Final Administrative (1/28/05) Deportation Order (I-851-A)

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8. 9.

Notice of Intent to Issue a Final Administrative Removal Order (I-851) (1/21/05) Video of Defendant's Statement Transcript of Defendant's Statement V. JURY INSTRUCTIONS

3 10. 4 5 6 7 8 9 10 11 1) 12 2) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 // // // Committee on Model Criminal Jury Instructions - Ninth Circuit, Manual of Model Jury Instructions for the Ninth Circuit, § 9.5B [2007 Edition - West Publishing Co.][Alien-Deported Alien Found in the United States](modified) An alien is a person who is not a natural-born or naturalized citizen [or a national] of the United States. 5) 4) 3) 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; the defendant was found in the 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 the defendant was an alien at the time defendant's entry into the United States. of the the defendant was deported from the United States;

The Government will submit proposed jury instructions under separate cover, but will include the following regarding the charged offense: DEPORTED ALIEN FOUND IN THE UNITED STATES [Title 8, U.S.C., Section 1326(a) and (b)] - ELEMENTS:

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1 2 3 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 A. INTENT

VI. LEGAL ISSUES

To convict a defendant pursuant to a Section 1326 "found in" offense, the government must prove beyond a reasonable doubt that the defendant entered voluntarily and had knowledge he was committing the underlying act that made his conduct illegal ­ entering or remaining in the United States. United States v. Salazar-Gonzalez, 458 F.3d The general intent of a defendant to

851, 856 (9th Cir. 2006).

reenter the United States may be inferred, however, from the fact that the defendant was previously deported and subsequently found in the United States. United States v. Rivera-Sillas, 417 F.3d 1014, A

1021 (9th Cir. 2005), cert. denied, 126 S. Ct. 1094 (2006).

defendant found in the United States is presumed to have entered willfully and knowingly where he has not raised any evidence to the contrary. B. Id. at 1020-21. "OFFICIAL RESTRAINT"

The Government must prove that the defendant was found in the United States free from official restraint. See United States v.

Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000) (citing United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000)).

Nonetheless, where there is no evidence that government officials constantly or continuously surveilled an alien from the moment of entry, the unexplained presence of an alien some distance from the border is sufficient to establish that the alien entered voluntarily. United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir. 2001); United States v. Quintana-Torres, 224 F.3d 1157, 1159 (9th Cir. 2000).

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C.

PRIOR DEPORTATION

The lawfulness of a defendant's prior deportation is not an element of the offense under § 1326. United States v. AlvaradoThe Government

Delgado, 98 F.3d 492, 493 (9th Cir. 1996) (en banc).

need only prove that a deportation proceeding actually occurred and that the defendant was consequently deported. Medina, 236 F.3d 1028, 1031 (9th Cir. 2001). A deportation order or warrant is sufficient to establish the prior deportation. Id.; see also United States v. Bejar-Matrecios, United States v.

618 F.2d 81 (9th Cir. 1980) (holding a warrant of deportation is admissible as a public record, pursuant to F.R.E. 803(8)). A tape

recording or transcript of the prior deportation is not required to prove the prior deportation. Medina, 236 F.3d at 1030-31.

Although a defendant charged pursuant to § 1326 can preclude the Government proceedings from were relying so on a prior deportation that it in which the

procedurally

flawed

"effectively

eliminated the right of the alien to obtain judicial review," the mere absence of a tape recording or transcript of the deportation proceeding does not establish that the deportation was "fundamentally unfair." See id. at 1031-32 (citations omitted). Finally, because

the defendant must also prove prejudice as a result of a flawed deportation proceeding, a vague assertion that he might be able to locate some defect in the proceeding if a tape recording was

available is "no more than speculation to support his assertion of prejudice," and insufficient to meet his burden. Id. at 1032

(quoting United States v. Corrales-Beltran, 192 F.3d 1311, 1318-19 (9th Cir. 1999)). //

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D.

PRIOR CONVICTION

A prior aggravated felony conviction is not an element of section 1326(a) and should not be presented to the jury. See United

States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998) (citing Almendarez-Torres, 523 U.S. at 244). The Supreme Court has indicated that the Ninth Circuit's reasoning in Almendarez-Torres may have been incorrectly decided. See Apprendi v. New Jersey, 530 U.S. 466, 489-

90 (2000); United States v. Nordby, 225 F.3d 1053, 1057 n.1 (9th Cir. 2000). The holding in Almendarez-Torres remains controlling law, See United

however, until expressly overruled by the Supreme Court.

States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000). E. ADMISSION OF DEPORTATION DOCUMENTS 1. Public Records Exception

Although not conclusive, deportation documents are admissible to prove alienage pursuant to Rule 803(8), the public records exception to the hearsay rule. United States v. Hernandez-Herrera, As public records, no

273 F.3d 1213, 1217-18 (9th Cir. 2001).

foundation is required for their admission because the documents are "presumed trustworthy," thus placing the burden on the defendant to establish untrustworthiness. United States v. Loyola-Dominguez, 125

F.3d 1315, 1318 (9th Cir. 1997) (citations omitted). Pursuant to the admission of deportation documents pursuant to the public records exception, an Immigration agent may testify to explain the significance of each document removed from the defendantalien's A-file. Id. at 1317. Such testimony does not violate the

Confrontation Clause. Hernandez-Herrera, 273 F.3d at 1218. Further, the Confrontation Clause is not implicated where a defendant who fails to contest that he never made an application to Immigration

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authorities for reentry into the United States, is limited in his cross-examination of a witness regarding Immigration record-keeping procedures (including whether Immigration computers are fully

interactive with those of other federal agencies, that over 2 million filed documents have been lost or forgotten, whether other federal agencies have the ability or authority to apply for an immigrant to come in the United States, or whether other agencies were consulted). United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir.), cert. denied, 125 S. Ct. 2280 (2005). 2. Business Records Exception deportation documents may be admissible as

Alternatively, business records.

See United States v. Dekermenjian, 508 F.2d 812,

814 (9th Cir. 1974) (holding that deportation documents admissible in Section 1326 trial pursuant to 28 U.S.C. 1732, precursor statute to Federal Rule of Evidence 803(6)). A custodian of records or other qualified witness with knowledge of the making, keeping and

maintaining of the documents is necessary to testify regarding the methods of keeping the information. A custodian of records may

testify what a document means and describe the document without qualifying as an expert witness. See, e.g., United States v. Cooper, 375 F.3d 1041, 1045-46 (10th Cir. 2004) (permitting FDIC custodian of records to testify of record-keeping procedures, information reflected by computer records, and interpretations of contents of records). // // // //

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VII. PROPOSED VOIR DIRE QUESTIONS States requests that the following voir dire

questions be addressed to the jury panel in addition to the Court's standard jury questions: 1. Has anyone had an unpleasant experience with any law enforcement personnel? Has anyone had any disputes with any agency of the United States Government? Does anyone have strong feelings about the Border Patrol? Does anyone believe that immigration laws are too harsh? Has anyone had an unpleasant experience at the United States border? Does anyone not understand you are not prejudice, pity or sympathy in deciding Defendant is guilty or not guilty? to consider whether the

Does anyone have religious or moral beliefs which will make it difficult for them to decide whether a person is guilty or not guilty? Will anyone not follow the law as given by the Court, or disregard any idea of what you believe the law should be? If you are selected, would you want the government to prove its case by a higher standard of proof, say beyond any possible doubt?

DATED: March 12, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney

CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

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1 2 3 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 IT IS HEREBY CERTIFIED that: I, CHRISTOPHER P. TENORIO, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front v. PEDRO CRUZ-TERCERO, Defendant. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07CR3021-WQH

CERTIFICATE OF SERVICE

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 TRIAL MEMORANDUM on the following party by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them: Christian De Olivas, Esq. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 12, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney CHRISTOPHER P. TENORIO Assistant U.S. Attorney

s/Christopher P. Tenorio

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