Opinion
EP-00-CR-636-DB.
July, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Raul Rocha-Gonzalez's Motion to Suppress, filed in the above-captioned cause on June 19, 2000. The Government filed a Response to Defendant's Motion on June 29, 2000. On June 30, 2000, the Court held a hearing on the matter.
After careful consideration of the evidence and arguments presented, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.
FACTS
On March 15, 2000, El Paso County Sheriffs Department ("EPCSD") Deputy David Hargrove ("Hargrove") was on patrol in and around the Vinton, Texas, area. At approximately 6:30 that evening, Hargrove saw a pickup truck on East Vinton Road that did not have its headlights on and initiated a traffic stop on that basis. Hargrove spoke with the driver, who identified himself as Moises Martinez ("Martinez") and produced a New Mexico drivers' license but could not produce any proof of liability insurance. Hargrove ultimately cited Martinez for "driving without headlights when required" and "failure to maintain financial responsibility." In the meantime, Hargrove asked the passenger for his name and date of birth. The passenger, Defendant, identified himself as Raul Rocha, born March 30, 1965.
According to the testimony, because the passenger indicated he does not speak English and Hargrove does not speak Spanish, Martinez translated Hargrove's questions to the passenger and the passenger's responses to Hargrove.
Using that information, Hargrove then made a routine records check on the two occupants with EPCSD dispatch through the National Criminal Information Center ("NCIC"). The dispatcher responded that the NCIC had a "hit" indicating that one Raul Rocha-Gonzalez born March 30, 1965, was a "deported felon." Further, the dispatcher broadcast a physical description of that individual listed as a deported felon, as follows: five feet, nine inches tall; one-hundred fifty pounds; medium complexion; scar on right knee; scar on face; discoloration on abdomen; and needle marks. Based on that description, Hargrove believed Defendant to be that individual listed as a deported felon.
A short while later, another EPCSD deputy, a Deputy Martinez ("Deputy Martinez") arrived at the scene. Deputy Martinez spoke with Defendant in Spanish and found out that Defendant has a scar on his right knee, of which he informed Hargrove. Upon hearing this, Hargrove took Defendant into custody. After a "pat-down," Hargrove handcuffed Defendant and placed him into his patrol car.
Next, Sergeant Andres Ortega ("Ortega") arrived at the scene and also spoke with Defendant in Spanish, confirming the information Defendant previously relayed to Hargrove through Martinez. Ortega contacted the United States Border Patrol ("Border Patrol"), the agency which issued the NCIC "hit." Ortega informed the Border Patrol that the EPCSD was holding an individual they believed to be an illegal alien. Ortega then directed Hargrove to take Defendant to the EPCSD substation in Vinton until a Border Patrol agent could arrive to take custody of Defendant.
Once at the station, Border Patrol Agent Victor Gribben ("Gribben") arrived to take custody of Defendant. In response to Gribben's questions, Defendant gave his name, "Raul Rocha" and citizenship, "Mexican." Gribben further asked Defendant if he had any "papers" (i.e., permission to be in the United States), to which Defendant responded "no." At that point, Gribben took Defendant to the Immigration and Naturalization Service ("INS") Paso Del Norte ("PDN") processing station. There, Defendant was fingerprinted, and those fingerprints were run through the INS "IDENT" system, which includes a database of previously deported aliens. The IDENT system identified Defendant as the Raul Rocha-Gonzalez who previously was deported. Based on that information, Gribben gave Defendant a written warning of his constitutional rights — a Miranda warning — which Defendant read, indicated he understood and signed. Defendant waived the right to remain silent and to have an attorney present during questioning, and thereafter signed a written statement prepared by Senior Parol Agent David Cobos ("Cobos"). Through that statement, Defendant admitted that he was illegally present in the United States, is a citizen of Mexico, and previously was deported.
Through an April 12, 2000, Indictment, the Grand Jury charged Defendant with a single count of illegal reentry in violation of 8 U.S.C. § 1326. The instant Motion to Suppress followed.
DISCUSSION
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). Thus, the Fourth Amendment protects an individual's reasonable expectation of privacy from certain types of government intrusion. See Katz, 389 U.S. at 350, 88 S.Ct. at 510.
What is reasonable under the Fourth Amendment depends upon the circumstances and nature of the seizure. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A citizen-police encounter may be consensual, see Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984), a brief investigatory detention, see Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968), or an outright arrest or "seizure." See Dunaway v. New York, 442 U.S. 200, 214, 99 S. Ct. 2248, 2257, 60 L.Ed.2d 824 (1979). A person has been "seized" within the meaning of the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).
Here, Defendant asks the Court to suppress "any identification information, statements made by the Defendant and other evidence which are [sic] the `fruit' of the seizure and search of the Defendant," including "Defendant's post-arrest statements and verbal admissions, and . . . evidence of name or fingerprint comparisons." In that vein, Defendant takes three different approaches to suppressing that evidence. First, Defendant challenges the initial stop of the pickup in which he was a passenger, arguing that Hargrove's stated reason for stopping the vehicle — failure to maintain headlights after sunset — is unreasonable as pretext. Second, Defendant argues that the scope of the roadside detention and questioning of Defendant went beyond the need justified by the initial stop. Finally, Defendant contends that he was interrogated while in custody without having first been Mirandized.
A. The Initial Traffic Stop
The Government contends that Hargrove conducted a valid investigatory detention. Defendant, on the other hand, argues that Hargrove had no reason to stop the truck based on the stated reason that the truck did not have its lights on after sunset, and therefore, the initial stop was unreasonable. The Court agrees with the Government.
As a general matter, because "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment]," Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted), "[a]n automobile stop is . . . subject to the constitutional imperative that it not be `unreasonable' under the circumstances." Id.; see also United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
Where, as here, a defendant is stopped for violating the traffic laws, courts have analyzed the case under Terry. See Shabazz, 993 F.3d at 435. Under Terry, a court will examine the "totality of the circumstances" to determine whether the stop was warranted. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). The inquiry "is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879.
Police officers may conduct a brief, non-intrusive detention if the officers can justify their actions based on having a "reasonable suspicion" of criminal activity. See id. at 20-22, 88 S.Ct. at 1879-80. In order to establish reasonable suspicion, the officers must provide specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant an intrusion. See United States v. Sharpe, 470 U.S. 675, 682-83, 105 S.Ct. 1568, 1573-74, 84 L.Ed.2d 605 (1985). These facts may be obtained through the officer's personal observation. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332. With respect to traffic stops, "[t]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 517 U.S. at 810, 116 S.Ct. at 1772.
Here, the Government has plainly met its burden to demonstrate that Hargrove had reasonable suspicion to perform a Terry stop. At approximately 6:30 p.m., Martinez was driving without using any headlamps. Under Texas law, every vehicle must turn on its headlamps "at nighttime," TEX. TRANSP. CODE ANN. § 547.302(a) (West 1999), which "means the period beginning one-half hour after sunset and ending one-half hour before sunrise. Id. § 541.401(5) (West 1999). Hargrove testified that, because Martinez did not have his headlamps operating, and because he believed at the time of the stop that headlamp use was required, Hargrove initiated the traffic stop. Based on the totality of the circumstances, the Court finds that Hargrove had reasonable suspicion to believe that the driver of the pickup, Martinez, had violated provisions of the Texas Transportation Code, and, therefore, the initial stop does not offend the Constitution.
At the hearing, Defendant introduced evidence to show that on March 15, 2000, sunset in the El Paso area took place at precisely 6:14 p.m. according to the United States Naval Observatory. Defendant contends that at that time headlights were not required because the stop took place only fifteen minutes after sunset, not thirty. While perhaps technically correct, Defendant's contention is misplaced. The Court will not hold police officers to any such scientifically accurate determination of when "sunset" occurred on a particular day. Rather, any person, scientist or not, can look at the sky and estimate when the sun has set, and a deviation of some fifteen minutes or more is rather expected. Moreover, Subtitle C of the Texas Transportation Code, wherein §§ 541.401(5) and 547.302 are codified, quite clearly is designed to promote safety on Texas roads. Thus, Hargrove's zealousness in enforcing the headlamp requirement, if any, is not unreasonable. Finally, Hargrove testified at the hearing that he understood nighttime to mean one-half hour before sunset, not after. Frankly, the Court, too., is quite surprised that § 541.401(5) proves Hargrove's understanding of the headlamp requirement incorrect. Thus, it is clear to the Court that Hargrove's mistake was an honest one.
B. The Scope of the Stop — Questioning Defendant
Defendant next asserts that the stop, even if reasonable in the first instance, exceeded the scope of Hargrove's reason for stopping the vehicle and, as such, was unreasonable. Specifically, Defendant contends that Hargrove's questions regarding Defendant's name and date of birth do not relate to Martinez's failure to display headlamps and, hence, "there were no articulable facts on which to base a reasonable suspicion that Defendant was at that time committing a crime or possessing evidence of a crime." The Court disagrees.
First, the Fifth Circuit repeatedly has rejected the contention that "mere questioning during a traffic violation stop, even on a subject unrelated to the initial purpose of the stop itself, is a violation of the Fourth Amendment." United States v. Davis, 61 F.3d 291, 300 (5th Cir. 1995). "Detention, not questioning, is the evil at which Terry's second prong is aimed." Id. Here, there are no facts to indicate that Defendant was not free to leave the scene after the initial stop of Martinez's pickup truck and before the NCIC records check. As the passenger, Defendant could not be cited for failing to use headlamps or failure to maintain financial responsibility. Rather, Hargrove merely asked Defendant to identify himself, which any police officer rightly can do. Cf. I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (noting that "interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure").
Here, Hargrove merely asked Defendant his name and date of birth, which Defendant forthrightly offered. The fact that Martinez translated Hargrove's questions into Spanish is wholly irrelevant. In short, there is no reason to prohibit Hargrove from identifying Defendant and running a routine records check on him, even though he was not the driver who created the violation. Thus, the Court finds Hargrove's questions directed to Defendant entirely reasonable.
Defendant further contends that the roadside detention went beyond the temporal scope of Hargrove's original justification as well, because "[t]he deputy had no basis for . . . detaining him beyond the time that was necessary to inform the driver he should turn his lights on." First, Defendant ignores the fact that Martinez committed a "moving violation" under the Texas Transportation Code. See Miller v. Texas Dep't of Pub. Safety, 375 S.W.2d 468, 473 (Tex.Civ.App. — Dallas), reversed on other grounds, 386 S.W.2d 760 (Tex. 1964). Hence, it is not reasonable to expect Hargrove merely to direct Martinez to turn on his headlamps and send him along. In fact, Hargrove ultimately cited Martinez for that offense and for failure to maintain evidence of financial responsibility. More importantly, the fact that Hargrove radioed EPCSD dispatch to run a records check on Defendant did not unnecessarily prolong the encounter since he was already doing so as to Martinez. Had the records check come back negative, the two would have been on their way and the scope of the traffic stop limited. Cf. United States v. Dortch, 199 F.3d 193, 200 (5th Cir. 1999) (finding scope exceeded where officers continued to question defendant even after records check turned up nothing). Hence, the Court finds that in briefly questioning Defendant, Hargrove did not extend the duration of the stop. Consequently, the Court is of the opinion that the requirements of Terry are satisfied and, therefore, Hargrove conducted a valid investigatory stop.
C. Warrantless Arrest
Defendant further contends that, even if the Terry investigatory stop was constitutional, the officers arrested Defendant without a warrant and, therefore, Defendant was illegally seized. The Court disagrees.
Even without an arrest warrant, an officer may arrest a suspect if he has "probable cause," based on facts and circumstances that would be sufficient to cause an officer of reasonable caution to believe the person committed, is committing or is about to commit a crime. See United States v. Carillo-Morales, 27 F.3d 1054, 1062 (5th Cir. 1994). As with the Terry analysis, a court examines the totality of the circumstances, see United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993), and the Government bears the burden to prove probable cause. See United States v. Ho, 94 F.3d 932, 936 (5th Cir. 1993).
Here, Hargrove had probable cause to arrest Defendant based on the NCIC broadcast. See United States v. Munoz, 150 F.3d 401, 411-12 (5th Cir. 1998) (quoting United States v. McDonald, 606 F.2d 552, 553-54 (5th Cir. 1979), "the cases uniformly recognize that NCIC printouts are reliable enough to form the basis for the reasonable belief which is needed to establish probable cause for arrest"); Brooks v. George County, Miss., 84 F.3d 157, 167 n. 12 (5th Cir. 1996) ("NCIC printouts provide a reliable basis for probable cause to arrest."). Moreover, Defendant voluntarily admitted to the Sheriff's officers that he was deported previously. Thus, notwithstanding the officers' unfamiliarity with the complexities of immigration law, the Court finds that a reasonable police officer would believe Defendant committed a violation of the immigration laws by being present in the United States, given the NCIC report that the person identified was a "deported felon." Accordingly, the Court is of the opinion that the warrantless arrest of Defendant does not violate the Fourth Amendment.
D. Pre-Miranda Statements
Next, although Defendant does not press the issue, the Court notes that there is an issue as to statements Defendant made before he received a Miranda warning.
It is well-established that Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), prohibits use during trial of statements made by a defendant during custodial interrogation unless procedural safeguards are employed to protect his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. The Miranda requirement is satisfied by a warning, nearly universally recognized, that a suspect has a right to remain silent, that anything he says can be used against him in a court of law, that he has a right to the presence of an attorney during questioning, and that an attorney will be provided for him if he cannot afford one. See Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.
Miranda's protections attach prior to any "custodial interrogation." United States v. Paul, 142 F.3d 836, 843 (5th Cir. 1998). Thus, if a defendant is not "in custody" when questioned, Miranda does not apply. See id.; see also United States v. Welsh, 417 F.2d 361, 363 (5th Cir. 1969). Similarly, conversations not akin to "interrogation" are not sufficiently offensive to suppress. See Paul, 142 F.3d at 843.
A suspect is "`in custody' for Miranda purposes when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed. 317 (1983); see also United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988).
A question amounts to "interrogation" when it is "reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980); see also id. at 301-02, 100 S.Ct. at 1690 ("[S]ince the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response."). Thus, routine gathering of basic biographical data normally does not offend Miranda. See United States v. Berisha, 925 F.2d 791, 797 (5th Cir. 1991). Similarly, Miranda does not apply to statements freely volunteered, even while in custody. See Miranda, 384 U.S. at 478, 86 S.Ct. at 1630.
Here, there is no Miranda violation with respect to Hargrove's questions to Defendant while stopped at the side of the road. The Court finds that no reasonable person would believe that he would not shortly be free to go at the time. Thus, Defendant was not "in custody" when he told Hargrove his name and date of birth. Similarly, when Deputy Martinez confirmed that information and found out whether Defendant had a scar on his right knee, Defendant was not "in custody" for Miranda purposes. Moreover, the questions about Defendant's name and date of birth and about an identifying mark cannot reasonably be construed as questions a Sheriff's Department deputy would know are likely to inculpate Defendant.
On the other hand, when Ortega questioned Defendant, Defendant was in the back of Hargrove's patrol car, handcuffed. However, at that point, Ortega merely asked Defendant the same questions Hargrove and Martinez put to him earlier, questions he already had answered twice before being placed in custody. Moreover, it is undisputed that none of the EPCSD officers questioned Defendant about whether he had any immigration documents, how and when he came into the United States, and why was deported in the first place, although he freely volunteered that the reason was drug violations. Each of the officers' questions sought only to identify Defendant and figure out whether he was the same individual listed in NCIC records as a deported felon. Accordingly, the Court finds that none was directed at or likely to elicit an incriminating response from Defendant.
Once the Border Patrol entered the fray, however, the circumstances changed slightly. Gribben went to the EPCSD station to follow up on a call about an illegal alien in EPCSD custody. Once there, Gribben, too, asked Defendant his name. He also asked Defendant what his citizenship is, whether he had previously been caught by the Border Patrol and whether he had any "papers." Regardless of the answers to those questions, the Court finds that those questions were reasonably likely to elicit incriminating responses from Defendant given the elements of the crime of illegal reentry. In contrast, once at the PDN processing station, Gribben administered a Miranda warning which was written in Spanish. Defendant indicated he could read Spanish and that he read and understood the form, which he signed. Thereafter, Defendant signed a written statement in which Defendant admitted that he was in the United States illegally, that he is a citizen of Mexico and that he previously was deported from the United States.
In order to prove at trial that Defendant is guilty of illegal reentry in violation of 8 U.S.C. § 1326, the Government would have to prove beyond a reasonable doubt (1) that Defendant was an alien on March 15, 2000; (2) that Defendant previously was excluded, deported or removed from the United States; (3) that, thereafter, Defendant attempted to enter, entered or was found in the United States; and (4) that Defendant had not received the consent of the Attorney General of the United States to reapply for admission to the United States since the time of the Defendant's previous exclusion, deportation or removal from the United States. See 8 U.S.C.A. § 1326(a) (West 1999).
More importantly, "Miranda merely created a prophylactic rule that establishes an irrebuttable presumption of involuntariness with respect to statements made during custodial interrogation that are not preceded by Miranda warnings." United States v. Garcia Abrego, 141 F.3d 142, 169 (5th Cir. 1998)) (citing McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 2207-08, 115 L.Ed.2d 158 (1991)). Consequently, "Mirandized statements made subsequent to an un-Mirandized statement are not the illegal fruit of the prior statement unless the prior statement was actually involuntary as opposed to merely presumed involuntary on the basis that it was given without the benefit of Miranda warnings." Garcia Abrego, 141 F.3d at 169 (citing Oregon v. Elstad, 470 U.S. 310-11, 105 S.Ct. 1285, 1293-94, 84 L.Ed.2d 222 (1985)).
Here there is no evidence that Defendant's responses to Gribben's questions at the EPCSD facility were actually involuntary versus simply presumptively involuntary because made before any Miranda warning. Accordingly, the Court finds that any post-Miranda statement does not thereby become the "fruit" of an illegal search, as Defendant suggests. Rather, all of the statements Defendant made after receiving a Miranda warning are admissible. Conversely, the Court is of the opinion that those custodial statements made to Gribben at the EPCSD must be suppressed, and on that very limited basis, grants Defendant's Motion to Suppress.
E. Identification Evidence
Finally, even if the initial stop was conducted without reasonable suspicion and the arrest without probable cause, Defendant cannot suppress "identification" evidence. Simply put, "[t]he body or identity of a defendant in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest." I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 3484, 82 L.Ed.2d 3479 (1984); see also United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) ("[E]ven if defendant was illegally stopped, neither his identity nor his INS file are suppressible."); United States v. Pineda-Chinchilla, 712 F.2d 942, 943-44 (5th Cir. 1983) (per curiam).
Without question, then, Defendant cannot prevent the Government from introducing evidence at trial which pertains to Defendant's identity. Accordingly, to the extent that Defendant asks the Court to suppress any "evidence of name or fingerprint comparisons," the Court is of the opinion that his argument is sufficiently precluded by Fifth Circuit case law. Accordingly, IT IS HEREBY ORDERED that Defendant Raul Rocha-Gonzalez's Motion to Suppress is GRANTED IN PART, limited to statements Defendant made to United States Border Patrol Agent Victor Gribben while still at the El Paso County Sheriffs Department station.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On July 31, 2000, the Court held a bench trial in the above-captioned cause. Defendant Raul Rocha-Gonzalez was present and represented by counsel. After questioning by the Court, Defendant indicated that he understood his rights and knowingly waived his right to trial by jury.After hearing the evidence, the Court has determined that Defendant is guilty beyond a reasonable doubt of violating 8 U.S.C. § 1326 (illegal re-entry). In accordance with Federal Rule of Criminal Procedure 23(c), the Court enters these Findings of Fact and Conclusions of Law with respect to Defendant.
PROCEDURAL BACKGROUND
By a single count Indictment filed on April 12, 2000, Defendant was charged with illegally reentering the United States in violation of 8 U.S.C. § 1326. The Government also filed a Notice of Penalty Enhancement pursuant to 8 U.S.C. § 1326(b)(2).
Defendant filed a Motion to Suppress on June 19, 2000, contending that certain statements as well as evidence of name or fingerprint comparisons should be suppressed due to violations of Defendant's Fifth and Sixth Amendment rights. The Government filed a Response to the Motion to Suppress on June 29, 2000. After a hearing on June 30, 2000, the Court denied Defendant's Motion to Suppress by Memorandum Opinion and Order filed on July 13, 2000.
Defendant also filed a Motion to Dismiss the Indictment on June 23, 2000, contending that his deportation from the United States, which forms the basis of the charge against him in this cause, should not be used against him as an element of the charged crime because to do so would be fundamentally unfair and would violate his right to due process under the United States Constitution. The Government filed a Response to Defendant's Motion to Dismiss on June 28, 2000. Thereafter, the Court held a hearing on June 30, 2000. By Memorandum Opinion and Order entered July 13, 2000, the Court denied Defendant's Motion to Dismiss, finding that Defendant failed to show that his prior deportation was fundamentally unfair, that he was denied judicial review of that deportation order or that he suffered any prejudice from any improprieties in the deportation proceedings.
FINDINGS OF FACT
Defendant is a citizen of the Republic of Mexico. On October 3, 1997, Defendant was convicted in the 210th District Court of El Paso County, Texas, of possessing heroin in violation of Texas Health and Safety Code § 481.115. That court sentenced Defendant to one year of imprisonment in a Texas jail. At some point while imprisoned, officials from the United States Immigration and Naturalization Service ("INS") encountered Defendant. Thereafter, on October 2, 1998, the day Defendant was released from state custody, INS officials delivered to Defendant a Form I-851, "Notice of Intent to Issue a Final Administrative Removal" ("Notice of Intent"). The Notice of Intent charged that Defendant was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony and, because of that, subject to the expedited removal proceedings set out in 8 U.S.C. § 1228. Defendant acknowledged receiving the Notice of Intent and signed the following statement:
Though the form indicated it was prepared on June 4, 1998, it apparently was not served on Defendant until October 2, 1998, the day Defendant was released from state custody.
I DO NOT WISH TO CONTEST
I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. . . . I also waive the 14 day period of execution of the Final Removal Order.
That day, Defendant was removed to Mexico.
On March 15, 2000, the United States Border Patrol took Defendant into custody in Vinton, Texas, after an El Paso County Sheriff's Department Deputy stopped the truck he was a passenger in for a minor traffic violation. Pursuant to a Stipulation entered into between Defendant and the Government, filed July 28, 2000, and entered into the record herein at the July 31, 2000, bench trial, the Court makes the following findings:
(1) that Defendant is an alien;
(2) that on or about Ocotber 2, 1998, Defendant was removed from the United States;
(3) that Defendant was found in the United States on or about March 15, 2000; and
(4) that Defendant had not received the consent of the Attorney General of the United States to reapply for admission into the United States prior to his having been found in the United States on March 15, 2000.
CONCLUSIONS OF LAW
The Indictment in this cause charges Defendant with violating 8 U.S.C. § 1326, which makes it a crime for an alien to enter the United States after being deported at some earlier time. For the Court to find Defendant Raul Rocha-Gonzalez guilty of this crime, the Government must prove each of the following beyond a reasonable doubt:(1) that Defendant was an alien at the time alleged in the Indictment;
(2) that Defendant previously had been denied admission, excluded, deported or removed from the United States;
(3) that thereafter, Defendant entered, attempted to enter, or was found present unlawfully in the United States; and
(4) that Defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of Defendant's previous deportation.
The Court finds that the Government has proven beyond a reasonable doubt that Defendant was an alien at the time alleged in the Indictment; that Defendant previously had been removed from the United States; that thereafter Defendant was found present unlawfully in the United States; and that Defendant had not received the consent of the Attorney General of the United States to apply for readmission to the United States since the time of Defendant's previous removal.
Accordingly, the Court HEREBY FINDS Defendant Raul Rocha-Gonzalez GUILTY BEYOND A REASONABLE DOUBT of the crime charged in the Indictment in this cause.
IT IS HEREBY ORDERED that Defendant be scheduled for sentencing in this cause on October 4, 2000, at 8:30 a.m.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Raul Rocha-Gonzalez's Motion to Dismiss Indictment, filed in the above-captioned cause on June 23, 2000. The Government filed a Response to Defendant's Motion on June 28, 2000. The Court held a hearing on Defendant's Motion on June 30, 2000.After due consideration, the Court is of the opinion that Defendant's Motion to Dismiss should be denied for the reasons that follow.
BACKGROUND
Defendant is a citizen of the Republic of Mexico. On October 3, 1997, Defendant was convicted in the 210th District Court of El Paso County, Texas, of possessing heroin in violation of Texas Health and Safety Code § 481.115. That court sentenced Defendant to one year of imprisonment in a Texas jail.
At some point while imprisoned, officials from the United States Immigration and Naturalization Service ("INS") encountered Defendant. Thereafter, on October 2, 1998, the day Defendant was released from state custody, INS officials delivered to Defendant a Form I-851, "Notice of Intent to Issue a Final Administrative Removal" ("Notice of Intent"). The Notice of Intent charged that Defendant was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony and, because of that, subject to the expedited removal proceedings set out in 8 U.S.C. § 1228. Defendant acknowledged receiving the Notice of Intent and signed the following statement:
Though the form indicated it was prepared on June 4, 1998, it apparently was not served on Defendant until October 2, 1998, the day Defendant was released from state custody.
I DO NOT WISH TO CONTEST
I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. . . .
I also waive the 14 day period of execution of the Final Removal Order.
That day, Defendant was removed to Mexico.
On March 15, 2000, the United States Border Patrol took Defendant into custody in Vinton, Texas, after an El Paso County Sheriff's Department Deputy stopped the truck he was a passenger in for a minor traffic violation. An Indictment filed April 12, 2000, charged Defendant with illegal re-entry in violation of 8 U.S.C. § 1326.
Also on this day, the Court entered a Memorandum Opinion and Order granting in part Defendant's Motion to Suppress challenging the traffic stop and subsequent events which lead to Defendant's arrest on Fourth Amendment grounds. That Memorandum Opinion and Order sets forth a more detailed account of account of that day's events.
Title 8 U.S.C. § 1326(a) provides in relevant part, as follows:
Subject to subsection (b) . . ., any alien who —
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under Title 18, or imprisoned not more than 2 years, or both.8 U.S.C.A. § 1326(a) (West 1999).
The instant Motion to Dismiss followed.
DISCUSSION
Defendant asks the Court to find that the INS's January 16, 1998, removal order "was obtained in violation of due process and should not be used against the defendant to establish an element of the offense" charged in this cause. Specifically, Defendant contends that he is not an "aggravated felon" and, therefore, should not have been subjected to the administrative removal. Thus, Defendant contends, the INS's failure to take Defendant before an immigration judge and failure to carefully advise him of his right to apply for relief from deportation, namely voluntary departure pursuant to 8 U.S.C. § 1229c(a)(1), violates Defendant's due process rights.
Because a § 1326 prosecution requires that the defendant have been previously removed, the Supreme Court recognizes the right of a defendant charged under § 1326 to attack collaterally the underlying deportation under certain circumstances. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 837-40, 107 S.Ct. 2148, 2155-56, 92 L.Ed.2d 772 (1987). Following Mendoza-Lopez, the Fifth Circuit set forth the following test:
In order successfully to collaterally attack a deportation order in a § 1326 prosecution, the alien must show (1) that the deportation hearing was fundamentally unfair, (2) that the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the deportation, and (3) the procedural deficiencies caused him actual prejudice.
United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999), cert. denied, — U.S., — 120 S.Ct. 838, 145 L.Ed.2d 704 (2000) (citing United States v. Palacios-Martinez, 845 F.2d 89, 91 (5th Cir. 1988); United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995)). In addition, the Immigration and Naturalization Act ("INA") provides a similar limitation on a § 1326 defendant's ability to collaterally attack a prior deportation order:
(d) Limitation on collateral attack on underlying deportation order
In a criminal proceeding under [§ 1326], an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that —
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C.A. § 1326(d) (West 1999); see also Benitez-Villafuerte, 186 F.3d at 658 n. 8 (noting that Congress "effectively codified [the Fifth Circuit's] reading of Mendoza-Lopez in 8 U.S.C. § 1326(d)").
Here, Defendant fails to meet his burden as to each of the requisite showings. First, Defendant is an aggravated felon. See 8 U.S.C.A. 1101(a)(43)(B) (defining "aggravated felony"); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997) (holding that possession of controlled substance conviction is "aggravated felony" for § 1326(b) sentence enhancement if considered a felony under state law, even if not considered a felony under federal law); TEX. HEALTH SAFETY CODE § 481.115(c) (West Supp. 2000) (defining possession of controlled substance as third degree felony). Thus, the INS could place Defendant into the expedited removal procedures of 8 U.S.C. § 1229.
Defendant touts an administrative opinion from the Board of Immigration Appeals ("BIA"), In Re K-V-D-, Interim Decision 3422, 1999 WL 1186808 (BIA December 10, 1999), which purports to hold that simple possession of a controlled substance is not an aggravated felony under immigration law. Unfortunately, In Re K-V-D-is not binding on this Court.
Moreover, although Defendant contends that he should not have been subject to expedited removal, Defendant nowhere contends that the procedure itself was fundamentally unfair. In other words, even assuming Defendant's 1997 conviction is not an aggravated felony, Defendant has not shown that the procedures the INS employed to remove Defendant in October 1998 were fundamentally unfair, see Benitez-Villafuerte, 186 F.3d at 658, or that the resulting entry of deportation order was fundamentally unfair. See 8 U.S.C.A. § 1326(d)(3). At best, Defendant infers that he did not get as much information about his legal choices as he might have gotten had he appeared before an immigration judge. However, that contention is insufficient to demonstrate that the deportation hearing was fundamentally unfair. See Palacios-Martinez, 845 F.2d at 92 ("Failure to ensure that a potential deportee knows and fully understands each and every one of his rights under I.N.S. regulations is not a deprivation of fundamental fairness."). Accordingly, the Court finds that Defendant has failed to show that the hearing was fundamentally unfair.
Defendant also fails to show that the lack of a deportation hearing denied him the right to challenge the deportation order by judicial review. Rather, the Court finds that Defendant waived his right. The Government introduced into evidence a copy of the written acknowledgment wherein the Defendant "waived" his right to "file a petition for review of the Final Removal Order." Defendant also waived "the 14 day period of execution," which is designed to give an alien opportunity to apply for judicial review before he is actually removed. See 8 U.S.C.A. § 1228(b)(3) (West 1999). Because Defendant presented no evidence to suggest that the waiver was not knowingly and voluntarily made, the Court finds that the proceedings neither effectively eliminated Defendant's right to nor improperly deprived Defendant of the opportunity for judicial review of the removal order.
Even if the deportation hearing was fundamentally unfair and Defendant was unfairly denied judicial review, Defendant cannot demonstrate the requisite "actual prejudice" needed to successfully attack his 1996 deportation. "A showing of prejudice means `there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported.'" Benitez-Villafuerte, 186 F.3d at 659 (emphasis added) (quoting United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995)). Here, Defendant contends he was eligible for voluntary departure pursuant to 8 U.S.C. § 1229c(a)(1). That argument fails, however, because Defendant is statutorily ineligible for relief. See 8 U.S.C.A. § 1228(b)(5) (West 1999) ("No alien described in this section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General's discretion."); 8 U.S.C.A. § 1229c(a)(1) (allowing voluntary departure "if alien not deportable under section 1227(a)(2)(A)(iii)" as aggravated felon).
Section 1229c(a)(1) provides as follows:
The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under section 1229a of this title or prior to the completion of such proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title.8 U.S.C.A. § 1229c(a)(1) (West 1999).
Moreover, even if Defendant was eligible for voluntary departure, because it is undisputed that voluntary departure is wholly within the discretion of the Attorney General, see § 1254(e) (West 1999) (providing that "the Attorney General may, in his discretion" grant voluntary departure), denial of a that purely discretionary relief cannot constitute actual prejudice. See, e.g., United States v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir. 1992) (finding denial of discretionary asylum "far too slender a reed to support a showing of prejudice"). "In short, if the defendant was legally deportable and, despite the INS's errors, the proceeding could not have yielded a different result, the defendant has failed to meet his burden as to prejudice." Benitez-Villafuerte, 186 F.3d at 659 (internal citations, quotation marks and brackets omitted) (quoting United States v. Galicia-Gonzalez, 997 F.2d 602, 603 (9th Cir. 1993). Hence, the Court is of the opinion that Defendant has not shown any prejudice resulting from his October 2, 1998, removal.
Because the Court finds that Defendant has not met his burden of proof as to fundamental unfairness, deprivation of judicial review and actual prejudice, the Court is of the opinion that Defendant cannot successfully collaterally attack his October 1998 removal and, therefore, Defendant's Motion to Dismiss should be denied.
Accordingly, IT IS HEREBY ORDERED that Defendant Raul Rocha-Gonzalez's Motion to Dismiss Indictment is DENIED.