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United States v. Tapia-Paz


June 7, 2005


The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge


Defendant moves to dismiss the indictment or remand for re-arraignment on three different grounds. Doc #13. For the reasons that follow, the motion is DENIED.

I. As the pending motion is directed entirely to the indictment, it is helpful to rescribe the indictment in full:

The Grand Jury Charges:

On or about June 15, 2001, the defendant JORGE TAPIA-PAZ an alien, was arrested and deported from the United States to Mexico, and thereafter, having voluntarily returned or remained in the United States subsequent to June 15, 2001, the defendant was found in the Northern District of California on or about May 26, 2004, the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a reapplication by the defendant for admission into the United States, in violation of Title 8, United States Code, Section 1326.

Indictment (Doc #7). This indictment was returned by a grand jury that had been charged that it "cannot judge the wisdom of the criminal laws that have been enacted by Congress; that is, whether or not there should have been a federal law designating certain activity as criminal." Charging Tr (Doc #13 Ex C) at 4:8-11. The grand jury was further told that it could "expect candor, honesty and good faith in matters presented by the government lawyers." Id at 12:7-8.

At arraignment, defendant was informed not only of this charge of unauthorized re-entry after deportation, but also that he would be subject to a twenty-year statutory maximum term of imprisonment due to his alleged prior commission of an aggravated felony.

II. Defendant advances three arguments to dismiss the indictment or remand for re-arraignment. First, he contends that the grand jury charge violated the Fifth Amendment because the instructions "impermissibly limited the ability of the grand jury to consider the wisdom of the laws presented to them" and "the instructions improperly -- and unilaterally -- endorsed the credibility of the prosecutors present[ing] the evidence before the grand jury." Def Mot (Doc #13) at 3:27-4:2. Second, defendant maintains that "[b]ecause the government has not alleged the enhancement fact of a prior aggravated felony in the indictment, the statutory maximum sentence for the offense of illegal re-entry -- instead of the twenty years represented by the government and stated [at arraignment]." Id at 10:2-5. Third, defendant argues that the indictment is flawed because "the enhancement fact of a prior deportation was not adjudicated before a jury." Id at 7:8-9. The court takes these arguments in turn.


The first of defendant's arguments based on the grand jury charge -- that the charge "impermissibly limited the ability of the grand jury to consider the wisdom of the laws presented to them" -- is squarely foreclosed by the Ninth Circuit's en banc decision in United States v Navarro-Vargas, --- F3d ----, 2005 WL 1206632 (9th Cir 2005) (en banc). Defendant acknowledges this. See Def Reply (Doc #16) at 5. Accordingly the court rejects this argument.

Defendant's second argument based on the grand jury charge -- that the court improperly biased the grand jurors by telling them they could "expect candor, honesty, and good faith in matters presented by the government lawyers," Charging Tr (Doc #13 Ex C) at 12:7-8 -- is unaffected by Navarro-Vargas. But defendant takes this phrase out of context. A larger excerpt of the charge reveals this language:

If past experience is any indication of what to expect in the future, then you can expect candor, honesty and good faith in matters presented by the government lawyers; however, ultimately, you must decide of your own independent judgment, never becoming an arm of the United States Attorney. The government lawyers are prosecutors. You are not prosecutors. If the facts suggest that you should not indict, you should not do so, even in the face of opposition by the United States Attorney or one of his assistants.

Charging Tr (Doc #13 Ex C) at 12:6-14. The context makes clear that the phrase defendant singles out is calculated to put newly empaneled grand jurors at ease, while the overall message is an exhortation to the grand jury to exercise its independent judgment without regard for the prosecutor's authority or urging. Accordingly, the court rejects defendant's argument that this charge, taken as a whole, impermissibly biased the grand jury.


Second, defendant argues that his commission of an aggravated felony (which would enhance his statutory maximum sentence of imprisonment to twenty years under § 1326(b)(2)) must be alleged in the indictment and proven at trial pursuant to Apprendi v New Jersey, 530 US 466 (2000). But Almendarez-Torres v United States, 523 US 224 (1998), and United States v PachecoZepeda, 234 F3d 411 (9th Cir 2000), foreclose such an attack. Almendarez-Torres provides that a prior conviction used to increase the maximum punishment to which a defendant may be subjected need not be alleged in the indictment nor proven at trial to a jury. Apprendi leaves Almendarez-Torres intact, see 530 US at 489, as have subsequent decisions such as Blakely v Washington, 124 S Ct 2531 (2004), and the Ninth Circuit has so recognized, see, e g, United States v Quintana-Quintana, 383 F3d 1052 (9th Cir 2004).

Defendant predicates his challenge on Shepard v United States, 125 S Ct 1254 (2005), the Supreme Court's most recent decision casting doubt on Almendarez-Torres. Shepard expressly leaves the continuing viability of Almendarez-Torres for another day, id at 1263 n5, and it is the Supreme Court's prerogative alone to overrule one of its precedents, State Oil v Khan, 522 US 3, 20 (1997). Thus, although the overruling of Almendarez-Torres may be in the offing, and counsel serves his client well by preserving this claim for future review, this court can give defendant no relief.


Defendant's final attack on the indictment concerns the fact that 8 USC § 1325(a) (illegal entry) carries a statutory maximum of six months imprisonment, while 8 USC § 1326(a) (illegal re-entry after deportation, for which defendant was indicted) has an enhanced statutory maximum of two years imprisonment. The difference, of course, is that § 1326(a) requires a prior deportation, while § 1325(a) does not. From this defendant argues that "because the [prior] deportation was not proved beyond a reasonable doubt at trial, it cannot be used as an enhancement fact to increase the two year statutory maximum sentence." Def Mot (Doc #13) at 7:15-16.

But defendant is getting ahead of himself: Whether defendant was previously deported is an issue in this case, not some prior proceeding. That question will be at issue at trial, as will defendant's citizenship, his authorization to re-enter, whether he in fact reentered and so on. The government has alleged in the indictment that defendant was previously deported, and defendant is free to put the government to its proof.

Defendant asserts that this issue is indistinguishable from the issue confronted by the Ninth Circuit in United States v Tighe, 266 F3d 1187 (9th Cir 2001). In Tighe, the court of appeals overturned a sentence enhanced under the Armed Career Criminal Act on the basis of predicate offenses tried in juvenile court (and hence not to a jury). The court of appeals concluded that "Apprendi's narrow 'prior conviction' exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt." Id at 1194. Hence in Tighe, the government could not rely on Tighe's juvenile-court convictions for reckless endangerment, first-degree robbery and unauthorized use of a motor vehicle to establish that Tighe had in fact committed those prior offenses.

But the government does not seek to rely on the prior deportation conclusively to establish certain facts; the government simply must show (in this proceeding, to a jury and beyond a reasonable doubt) that defendant was in fact deported. (Whether that deportation was legal, and whether it may be collaterally attacked in this proceeding are separate questions on which the court expresses no view.) Tighe would be squarely on point if, for example, the government sought to use defendant's prior deportation proceeding conclusively to establish that defendant is not a citizen. This is not at all what the government proposes to do; at oral argument the government represented that it intended to prove the fact of a prior deportation at trial by reference to warrants of deportation and testimony from the immigration agent who actually deported defendant.

Accordingly, the court rejects this as ground on which to dismiss the indictment.

III. For the foregoing reasons, defendant's motion to dismiss the indictment or to remand for re-arraignment (Doc #13) is DENIED.



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