Opinion
LAURA E. DUFFY, United States Attorney, ANDREW J. GALVIN, Assistant United States Attorney, San Diego, California, Attorneys for United States of America.
BENJAMIN J. CHEEKS, Defense Counsel, Luis Miguel Pina-Velazquez, Defendant.
STIPULATION OF FACT AND JOINT MOTION FOR RELEASE OF MATERIAL WITNESS(ES) AND ORDER THEREON
WILLIAM V. GALLO, Magistrate Judge.
IT IS HEREBY STIPULATED AND AGREED between the plaintiff, UNITED STATES OF AMERICA, by and through its counsel, Laura E. Duffy, United States Attorney, and Andrew J. Galvin, Assistant United States Attorney, and defendant LUIS MIGUEL PINA-VELAZQUEZ, by and through and with the advice and consent of defense counsel, Benjamin J. Cheeks, that:
1. Defendant agrees to execute this stipulation on or before the first preliminary hearing date and to participate in a full and complete inquiry by the Court into whether defendant knowingly, intelligently and voluntarily entered into it.
2. The material witnesses, Elias Montejo-Mendez, Miguel Velasquez-Velasquez, Francisco Orozco, Miguel Perez-Guzman, Francisco Beltran, Martin Vazquez-Vazquez, and Juan Ramon Orozco-Marquez, in this case:
a. Are aliens with no lawful right to enter or remain in the United States;
b. Entered or attempted to enter the United States illegally on or about February 9, 2014;
c. Were found in vehicles driven by the defendants near Calexico, California and that defendant knew or acted in reckless disregard of the fact that they were aliens with no lawful right to enter or remain in the United States;
d. Were paying or having others pay on their behalf an amount between $3, 000-$3, 500 to others to be brought into the United States illegally and/or transported illegally to their destination therein; and,
e. May be released and remanded immediately to the Department of Homeland Security for return to their country of origin.
3. The vehicle driven by defendant in this case;
a. Was seized as evidence and is held by the Department of Homeland Security;
b. May be released as evidence and immediately disposed of by the Department of Homeland Security.
4. After the court has ordered the material witnesses released, pursuant to this stipulation and joint motion, if defendant does not plead guilty to a violation of 8 U.S.C. § 1324, for any reason, or thereafter withdraws his guilty plea to that charge, defendant agrees that in any proceeding, including, but not limited to, motion hearings, trial, sentencing, appeal or collateral attack, that:
a. The stipulated facts set forth in paragraph 2 above shall be admitted as substantive evidence;
b. The United States may elicit hearsay testimony from arresting agents regarding any statements made by the material witness(es) provided in discovery, and such testimony shall be admitted as substantive evidence under Fed.R.Evid. 804(b)(3) as statements against interest of (an) unavailable witness(es);
c. Understanding that under Crawford v. Washington, 124 S.Ct. 1354 (2004), "testimonial" hearsay statements are not admissible against a defendant unless defendant confronted and cross-examined the witness(es) who made the "testimonial" hearsay statements, defendant waives the right to confront and cross-examine the material witness(es) in this case; and,
d. Defendant waives the opportunity to examine the vehicle or object to its unavailability in this case.
5. By signing this stipulation and joint motion, defendant certifies that defendant has read it (or that it has been read to defendant in defendant's native language). Defendant certifies further that defendant has discussed the terms of this stipulation and joint motion with defense counsel and fully understands its meaning and effect.
Based on the foregoing, the parties jointly move the stipulation into evidence and for the immediate release and remand of the above-named material witness(es) to the Department of Homeland Security for return to their country of origin.
It is STIPULATED AND AGREED this date.
ORDER
Upon joint application and motion of the parties, and for good cause shown,
THE STIPULATION is admitted into evidence; and
IT IS ORDERED that the above-named material witness(es) be released and remanded forthwith to the Department of Homeland Security for return to their country of origin, subject to the disposition in USA v. Flores-Bara Service, 17 CR751AJB.
SO ORDERED.