United States District Court, S.D. California
September 9, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JOSE SANCHEZ-JIMINEZ, Defendant.
The opinion of the court was delivered by: DANA M. SABRAW, District Judge
STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT'S MOTIONS
STATEMENT OF FACTS*fn1
On May 23, 2005 at approximately 4:10 pm San Diego Police
Officers Franchina and Kelbaugh responded to radio call that
several males were drinking beer in the rear of La Cocina De Jose
Restaurant. Upon their arrival, the officers asked Mr.
Sanchez-Jiminez for identification. They further inquired as to
whether or not he was a United States citizen. Mr.
Sanchez-Jiminez allegedly made an incriminating response to the
officer's questions. Mr. Sanchez-Jiminez did not feel free to
leave during this questioning, and felt pressured to answer the
officer's questions. See Declaration of Jose Sanchez-Jiminez,
attached as Exhibit A. Following a records check, Mr.
Sanchez-Jiminez was then placed under arrest by Officers
Franchina and Kelbaugh for violating 8 U.S.C. § 1326. Mr.
Sanchez-Jiminez was transported to the police station and border
patrol was notified. Senior Border Patrol Agent Marlon Ybarra
transported Mr. Sanchez-Jiminez to the Border Patrol Station. At the station, Mr. Sanchez-Jiminez's
biographical information and fingerprints were submitted into the
ENFORCE, IAFIS and IDENT systems. After the system revealed a
positive immigration and criminal history, agents allegedly read
Mr. Sanchez-Jiminez his Miranda rights. Mr. Sanchez-Jiminez
allegedly made an incriminating response to the agents questions.
He did not understand the legal ramifications of these
statements. Ex. A.
On August 5, 2005 Mr. Sanchez-Jiminez was charged in an
indictment with one count of violating 8 U.S.C. § 1326, deported
alien in the United States.
These motions follow.
MOTION TO COMPEL DISCOVERY AND PRESERVE EVIDENCE
Mr. Sanchez-Jiminez moves for the production by the government
of the following discovery and for the preservation of evidence.
This request is not limited to those items that the prosecutor
knows of, but rather includes all discovery listed below that is
in the custody, control, care, or knowledge of any government
agency. See generally Kyles v. Whitley, 514 U.S. 419
(1995); United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).
(1) The Defendant's Statements. The government must disclose
to Mr. Sanchez-Jiminez all copies of any written or recorded
statements made by the defendant; the substance of any statements
made by the defendant which the government intends to offer in
evidence at trial; any response by the defendant to
interrogation; the substance of any oral statements which the
government intends to introduce at trial and any written
summaries of the defendant's oral statements contained in the
handwritten notes of the government agent; any response to any
Miranda warnings that may have been given to the defendant; as
well as any other statements by the defendant. Fed.R.Crim.P.
16(a)(1)(A). The Advisory Committee Notes and the 1991 amendments
to Rule 16 make clear that the government must reveal all the
defendant's statements, whether oral or written, regardless of
whether the government intends to make any use of those
(2) Arrest Reports, Notes and Dispatch Tapes. Mr.
Sanchez-Jiminez also specifically requests that all arrest
reports, notes and dispatch or any other tapes that relate to the
circumstances surrounding his arrest or any questioning, if such
reports have not already been produced in their entirety, be
turned over to him. This request includes, but is not limited to,
any rough notes, records, reports, transcripts or other documents in which statements of the defendant or any other
discoverable material is contained. This is all discoverable
under Fed.R.Crim.P. 16(a)(1)(A) and Brady v. Maryland,
373 U.S. 83 (1963). See also Loux v. United States, 389 F.2d 911
(9th Cir. 1968). Arrest reports, investigator's notes, memos from
arresting officers, dispatch tapes, sworn statements, and
prosecution reports pertaining to the defendant are available
under Fed.R.Crim.P. 16(a)(1)(B) and (c), Fed.R.Crim.P. 26.2
and 12(i). Preservation of rough notes is requested, whether or
not the government deems them discoverable.
Mr. Sanchez-Jiminez specifically requests a copy of the
audiotape of any deportation hearing, as well as a transcript
of any such proceeding. Mr. Sanchez-Jiminez also requests a copy
of his alien file ("A-file").
(3) Brady Material. Mr. Sanchez-Jiminez requests all
documents, statements, agents' reports, and tangible evidence
favorable to the defendant on the issue of guilt and/or which
affects the credibility of the government's case. Impeachment as
well as exculpatory evidence falls within Brady's definition of
evidence favorable to the accused. United States v. Bagley,
473 U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976).
(4) Any Information That May Result in a Lower Sentence Under
The Guidelines. As discussed above, this information is
discoverable under Brady v. Maryland, 373 U.S. 83 (1963). This
request includes any cooperation or attempted cooperation by the
defendant, as well as any information that could affect any base
offense level or specific offense characteristic under Chapter
Two of the Guidelines. Also included in this request is any
information relevant to a Chapter Three adjustment, a
determination of the defendant's criminal history, or any other
application of the Guidelines.
(5) The Defendant's Prior Record. Evidence of prior record is
available under Fed.R.Crim.P. 16(a)(1)(B). Counsel
specifically requests a complete copy of any criminal record. Mr.
Sanchez-Jiminez requests all evidence, documents, records of
judgments and convictions, photographs and tangible evidence, and
information pertaining to any prior arrests and convictions.
Specifically, Mr. Sanchez-Jiminez requests: all documents and
tapes relating to any deportation, including the warrant of
deportation, the order to show cause, and the order of
Additionally, Mr. Sanchez-Jiminez requests the right to review
his A-file at the government's earliest convenience. (6) Any Proposed 404(b) Evidence. Evidence of prior similar
acts is discoverable under Fed.R.Crim.P. 16(a)(1)(c) and
Fed.R.Evid. 404(b) and 609. In addition, under Fed.R.Evid. 404(b),
"upon request of the accused, the prosecution . . . shall provide
reasonable notice in advance of trial . . . of the general nature
. . ." of any evidence the government proposes to introduce under
Fed.R.Evid. 404(b) at trial. The defendant requests that such
notice be given three weeks before trial in order to give the
defense time to adequately investigate and prepare for trial.
(7) Evidence Seized. Evidence seized as a result of any
search, either warrantless or with a warrant, is discoverable
under Fed.R.Crim.P. 16(a)(1)(c), and Mr. Sanchez-Jiminez
(8) Request for Preservation of Evidence. Mr. Sanchez-Jiminez
specifically requests that all dispatch tapes or any other
physical evidence that may be destroyed, lost, or otherwise put
out of the possession, custody, or care of the government and
which relate to the arrest or the events leading to the arrest in
this case be preserved. This request includes, but is not limited
to, the results of any fingerprint analysis, the defendant's
personal effects, the vehicle, and any other evidence seized from
the defendant or any third party. It is requested that the
government be ordered to question all the agencies and
individuals involved in the prosecution and investigation of this
case to determine if such evidence exists, and if it does exist
to inform those parties to preserve any such evidence.
(9) Tangible Objects. Mr. Sanchez-Jiminez requests, under
Fed.R.Crim.P. 16(a)(1)(c), the opportunity to inspect and copy
as well as test, if necessary, all other documents and tangible
portions objects, including photographs, books, papers,
documents, photographs of buildings or places or copies of
thereof which are material to the defense or intended for use in
the government's case-in-chief or were obtained from or belong to
(10) Evidence of Bias or Motive to Lie. Mr. Sanchez-Jiminez
requests any evidence that any prospective government witness is
biased or prejudiced against the defendant, or has a motive to
falsify or distort his or her testimony. Pennsylvania v.
Ritchie, 480 U.S. 39 (1987); United States v. Strifler,
851 F.2d 1197 (9th Cir. 1988).
(11) Impeachment Evidence. Mr. Sanchez-Jiminez requests any
evidence that any prospective government witness has engaged in
any criminal act whether or not resulting in a conviction and
whether any witness has made a statement favorable to the
defendant. See Fed.R.Evid. 608, 609 and 613. Such evidence is discoverable under Brady v. Maryland, supra. See United
States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness'
prior record); Thomas v. United States, 343 F.2d 49 (9th Cir.
1965) (evidence that detracts from a witness' credibility).
(12) Evidence of Criminal Investigation of Any Government
Witness. Mr. Sanchez-Jiminez requests any evidence that any
prospective witness is under investigation by federal, state or
local authorities for any criminal conduct. United States v.
Chitty, 760 F.2d 425 (2d Cir. 1985).
(13) Evidence Affecting Perception, Recollection, Ability to
Communicate. Mr. Sanchez-Jiminez requests any evidence,
including any medical or psychiatric report or evaluation,
tending to show that any prospective witness's ability to
perceive, remember, communicate, or tell the truth is impaired;
and any evidence that a witness has ever used narcotics or other
controlled substance, or has ever been an alcoholic. United
States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v.
North Carolina, 637 F.2d 213, 224 (4th Cir. 1980).
(14) Witness Addresses. Mr. Sanchez-Jiminez requests the name
and last known address of each prospective government witness.
See United States v. Napue, 834 F.2d 1311 (7th Cir. 1987);
United States v. Tucker, 716 F.2d 576 (9th Cir. 1983) (failure
to interview government witnesses by counsel is ineffective);
United States v. Cook, 608 F.2d 1175, 1181 (9th Cir. 1979)
(defense has equal right to talk to witnesses). The defendant
also requests the name and last known address of every witness to
the crime or crimes charged (or any of the overt acts committed
in furtherance thereof) who will not be called as a government
witness. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).
(15) Name of Witnesses Favorable to the Defendant. Mr.
Sanchez-Jiminez requests the name of any witness who made any
arguably favorable statement concerning the defendant or who
could not identify him or who was unsure of his identity, or
participation in the crime charged. Jackson v. Wainwright,
390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina,
637 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 1168
(6th Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v.
Blackburn, 601 F.2d 785 (5th Cir. 1979), cert. denied,
444 U.S. 1086 (1980).
(16) Statements Relevant to the Defense. Mr. Sanchez-Jiminez
requests disclosure of any statement that may be "relevant to any
possible defense or contention" that he might assert. United
States v. Bailleaux, 685 F.2d 1105 (9th Cir. 1982). This would include
Grand Jury transcripts which are relevant to Mr.
Sanchez-Jiminez's motions to dismiss the indictment.
(17) Jencks Act Material. Mr. Sanchez-Jiminez requests all
material to which Mr. Sanchez-Jiminez is entitled pursuant to the
Jencks Act, 18 U.S.C. § 3500, reasonably in advance of trial,
including dispatch tapes. A verbal acknowledgment that "rough"
notes constitute an accurate account of the witness' interview is
sufficient for the report or notes to qualify as a statement
under § 3500(e)(1). Campbell v. United States, 373 U.S. 487,
(18) Giglio Information. Pursuant to Giglio v.
United States, 405 U.S. 150 (1972), Mr. Sanchez-Jiminez requests all
statements and/or promises, expressed or implied, made to any
government witnesses, in exchange for their testimony in this
case, and all other information which could arguably be used for
the impeachment of any government witnesses.
(19) Reports of Scientific Tests or Examinations. Pursuant to
Fed.R.Crim.P. 16(a)(1)(D), Mr. Sanchez-Jiminez requests the
reports of all tests and examinations conducted upon the evidence
in this case. Including, but not limited to, any fingerprint
testing done upon any evidence seized in this case, that is
within the possession, custody, or control of the government, the
existence of which is known, or by the exercise of due diligence
may become known, to the attorney for the government, and which
are material to the preparation of the defense or are intended
for use by the government as evidence in chief at the trial.
(20) Henthorn Material. Mr. Sanchez-Jiminez requests that the
prosecutor review the personnel files of the officers involved in
his arrests, and those who will testify, and produce to him any
exculpatory information at least two weeks prior to trial and one
week prior to the motion hearing. See United States v.
Henthorn, 931 F.2d 29 (9th Cir. 1991). In addition, he requests
that if the government is uncertain whether certain information
is to be turned over pursuant to this request, that it produce
such information to the Court in advance of the trial and the
motion hearing for an in camera inspection.
(21) Informants and Cooperating Witnesses. Mr.
Sanchez-Jiminez requests disclosure of the names and addresses of
all informants or cooperating witnesses used or to be used in
this case. The government must disclose the informant's identity
and location, as well as disclose the existence of any other
percipient witness unknown or unknowable to the defense. Roviaro
v. United States, 353 U.S. 53, 61-62 (1957). Mr. Sanchez-Jiminez
also requests disclosure of any information indicating bias on
the part of any informant or cooperating witness. Giglio v. United States,
405 U.S. 150 (1972). Such information would include what, if any,
inducements, favors, payments, or threats were made to the
witness to secure cooperation with the authorities.
(22) Expert Witnesses. Mr. Sanchez-Jiminez requests
disclosure of the identities of any expert witnesses the
government intends to call at trial as well as "a written summary
of testimony that the government intends to use," including the
"witnesses' opinions, the bases and the reasons for those
opinions, and the witnesses' qualifications." Fed.R.Crim.P.
(23) Residual Request. Mr. Sanchez-Jiminez intends by this
discovery motion to invoke his rights to discovery to the fullest
extent possible under the Federal Rules of Criminal Procedure and
the Constitution and laws of the United States. This request
specifically includes all subsections of Rule 16. Mr.
Sanchez-Jiminez requests that the government provide him and his
attorney with the above requested material sufficiently in
advance of trial.
BECAUSE THE NINTH CIRCUIT'S EN BANC DECISION IN BUCKLAND
OVERRULED PARGA-ROSAS, THIS COURT MUST DISMISS THE INDICTMENT
BECAUSE IT FAILS TO ALLEGE THE VOLUNTARY ENTRY THAT IS A "MATERIAL
FACT" OF A "FOUND IN" PROSECUTION*fn2
The indictment fails to state an offense under 8 U.S.C. § 1326.
It merely alleges that Mr. Sanchez-Jiminez was "found,"*fn3
and fails to allege a voluntary entry into the United States. In
United States v. Quintana-Torres, 235 F.3d 1197 (9th Cir.
2000), the Ninth Circuit held that in a section 1326 "found in"
case, "the voluntariness of the return is an element of the
crime and, as such, must be proved beyond a reasonable doubt by the prosecution." Id. at 1200 (emphasis
The Fifth Amendment requires that an indictment
must contain an allegation of each element of an offense. See,
e.g., Pettibone v. United States, 148 U.S. 197
, 202 (1893)
("all the material facts and circumstances embraced in the
definition of the offense must be stated [in the indictment]");
United States v. Du Bo, 186 F.3d 1177
, 1179 (9th Cir. 1999)
(where there is a pre-trial objection, the failure to allege an
essential element of the charged offense "is not a minor or
technical flaw subject to harmless error analysis, but a fatal
flaw requiring dismissal of the indictment").*fn5
that the voluntary entry element is not contained in the
statutory language makes no difference: "`implied, necessary
elements, not present in the statutory language, must be included
in an indictment.'" Du Bo, 186 F.3d at 1179 (citation
In short, the indictment is plainly deficient
for failure to allege the voluntary entry element. It therefore
must be dismissed. Id. at 1181.
B. Buckland Requires That All Material Facts In A Criminal
Prosecution Be Alleged In the Indictment: Therefore It Overruled
Although the indictment is plainly deficient for failure to
allege the voluntary entry element, the Ninth Circuit's decision
in United States v. Parga-Rosas, 238 F.3d 1209 (9th Cir. 2001),
inexplicably held that the element of a voluntary entry need
not be alleged in an indictment charging a "found in" offense
under 8 U.S.C. § 1326. Id. at 1213-24. Parga-Rosas appears to
have declined to follow the holdings of Quintana-Torres,
Salazar-Robles, and Ruelas-Arreguin all of which make clear
that a voluntary entry is an element of a "found in" case based on its observation that
"Quintana-Torres involved sufficiency of the evidence and
Ruelas-Arreguin and Salazar-Robles were both venue cases."
Id. at 1214.
Apparently, the Parga-Rosas panel believed that the elements
of an offense vary depending upon what issue is being analyzed.
In other words, the elements of the offense when one is
evaluating the sufficiency of the evidence are not the same as
the elements that must be contained in the indictment. No
authority supports this remarkable proposition and, indeed, a
subsequent three judge panel of the Ninth Circuit explicitly
rejected it: "[i]f an element is necessary to convict, it is also
necessary to indict, because the elements of a crime do not
change as criminal proceedings progress." United States v.
Hill, 279 F.3d 731, 741 (9th Cir. 2002).*fn7 While the
conflict between Parga-Rosas and Hill would normally
necessitate en banc review, the Ninth Circuit's recent en banc
decision in United States v. Buckland, 289 F.3d 558 (9th Cir.
2002), has effectively overruled Parga-Rosas, leaving this
Court free to reconsider the analysis undertaken in
Parga-Rosas. See United States v. State of Washington,
872 F.2d 874, 880 (9th Cir. 1989) (recognizing lack of precedential
value of authority undermined by an en banc decision).
In Buckland, an en banc panel of the Ninth Circuit held that
drug type and quantity were "material facts" of a prosecution
under 21 U.S.C. § 841. Buckland, 289 F.3d at 568. Such
"material fact[s] . . . must be charged in the indictment,
submitted to the jury, and proved beyond a reasonable doubt."
Id. (citation omitted); accord Jordan, 291 F.3d at 1095
("In Buckland, . . ., we expressly held that . . . drug
quantity is a material fact of a drug offense, and that due
process requires that drug quantity must be charged in the
indictment") (internal quotations, citations omitted). Even so,
the Buckland majority never explicitly stated that drug type
and quantity were "elements" of a section 841 offense. See
id. at 575 ("I find it puzzling that the opinion does not simply acknowledge that the quantity [of
drugs] is an element of an aggravated offense") (Hug, J.,
concurring and dissenting).
In fact, the Ninth Circuit has since specifically held that
drug type is not an element. See United States v. Patterson,
292 F.3d 615, 623 (9th Cir. 2002); accord id. at 636 n. 1
(Tashima, J., dissenting) ("[t]he majority correctly rejects the
government's contention that the plea was defective for failure
to include drug quantity as an element of the offense"); see
also United States v. Sanchez-Cervantes, 282 F.3d 664, 673
(9th Cir. 2002) (Hug, J., concurring) (Buckland did not hold
that drug quantity was an element). As the majority in
Patterson observed, post-Buckland, "the relevant inquiry is
not of form, but of effect." Id. (internal quotations,
citations omitted; emphasis in original). Therefore, the question
of whether the voluntary entry requirement must be included in
the indictment turns on the effect that requirement has.
Quintana-Torres, 235 F.3d 1197, and Pacheco-Medina,
212 F.3d 1162, demonstrate that the "effect" of the failure to prove
a voluntary entry is that the defendant is entitled to a judgment
of acquittal. Quintana-Torres plainly holds a voluntary entry
"must be proved beyond a reasonable doubt by the prosecution."
235 F.3d at 1200. Similarly, Pacheco-Medina held that the
failure to prove such an entry mandated the reversal of
Pacheco-Medina's conviction and the entry of a judgment of
acquittal. 212 F.3d at 1166. Thus, a voluntary entry is plainly a
"material fact" of a section 1326 prosecution as that term is
employed in Buckland.
Again, Buckland makes clear that such "material fact[s] . . .
must be charged in the indictment, submitted to the jury, and
proved beyond a reasonable doubt." Buckland, 289 F.3d at 568
(emphasis added). Thus, even though Parga-Rosas somehow felt
free to ignore the Fifth Amendment implications of
Quintana-Torres's holding that a voluntary entry was an
element of a "found in" case, 235 F.3d at 1200, Buckland has
now made clear that the "element" label does not end the inquiry.
Because an "effects" analysis makes it perfectly clear that a
voluntary entry is a material fact of a "found in" prosecution,
a voluntary entry "must be charged in the indictment" like any
other material fact. Buckland, 289 F.3d at 568. IV.
THE INDICTMENT MUST BE DISMISSED BECAUSE IT DOES NOT ALLEGE
INSPECTION AND ADMISSION BY AN IMMIGRATION OFFICER OR ACTUAL AND
INTENTIONAL EVASION OF INSPECTION AT THE NEAREST INSPECTION POINT
Regardless of how this Court resolves the issues posed by
Parga-Rosas' disregard of the Fifth Amendment, the indictment
is nonetheless deficient for failure to allege inspection and
admission by an immigration officer or actual and intentional
evasion of inspection at the nearest inspection point. See,
e.g., Nyrienda v. I.N.S., 279 F.3d 620
(8th Cir. 2002)
(setting forth the components of an entry under the immigration
A. Pacheco-Medina Held that Section 1326 Employs the
Definition of Entry Developed In Immigration Law.
Pacheco-Medina explicitly held that section 1326 employs the
definition of entry developed by the Board of Immigration
Appeals. 212 F.3d at 1163-64 (citing Matter of Pierre, 14 I. &
N. 467 (1973), additional citations omitted). While
Pacheco-Medina was focused primarily on the "official
restraint" requirement of the concept of "entry" under the
immigration law, id. at 1164, the Immigration law definition
actually contains three separate components.
An entry has several components: (1) a crossing into
the territorial limits of the United States; (2)(a)
inspection and admission by an immigration officer,
or (b) actual and intentional evasion of inspection
at the nearest inspection point; and (3) freedom from
Nyrienda, 279 F.3d at 623 (citing Farquharson v. U.S. Attorney
General, 246 F.3d 1317
, 1321 (11th Cir. 2001) and Matter of
Z-, 20 I. & N. 707, 708, 1993 WL 424164 (BIA 1993)); accord
Yang v. Maugans, 68 F.3d 1540
, 1549 (3d Cir. 1995); Correa v.
Thornburgh, 901 F.2d 1166
, 1171 (2d Cir. 1990); Matter of G-,
20 I. & N. 764, 768, 1993 WL 522159 (BIA 1993). Thus, in addition
to freedom from restraint, an "entry" also requires proof that
the alien "cross[ed] into the territorial limits of the
United States," and that he be "inspect[ed] and admi[tted] by an
immigration officer, or . . . [that the alien] actual[ly] and
intentional[ly] eva[ded] . . . inspection at the nearest
inspection point." Id. (emphasis added).
B. The Indictment Fails To Allege the Three Components of an
As noted above, the indictment alleges only that Mr.
Sanchez-Jiminez was "found" in the United States. Assuming,
arguendo, that this allegation satisfies the requirement that
the alien "cross? into the territorial limits of the
United States," Nyrienda, 279 F.3d at 623, it fails to allege the
second two components: "inspection and admission by an immigration officer,
or . . . actual and intentional evasion of inspection at the
nearest inspection point; and . . . freedom from official
restraint." Id. Assuming further that this Court adheres to the
Ninth Circuit's dubious reasoning in Parga-Rosas, and ignores
the conflict with Buckland, the latter of these two
requirements, the lack of official restraint, need not be
alleged. See Parga-Rosas, 238 F.3d at 1213-14 (discussing the
requirement that the "person [be] free from official restraint"
but failing to address the inspection issues). Because
Parga-Rosas does not address the inspection component of the
definition of entry, id., it is has no bearing on the question
here: must fulfillment of the inspection requirement be alleged
in the indictment?
Although the inspection component of "entry" is not included in
the statutory language of section 1326, merely tracking the
statutory language does not suffice where, as is the case here,
the offense contains elements, or material facts, that are not
included in the statutory language: "[i]mplied, necessary
elements, not present in the statutory language, must be included
in an indictment." United States v. Jackson, 72 F.3d 1370, 1380
(9th Cir. 1995); accord Du Bo, 186 F.3d at 1179. In fact, a
mere citation to the statutory language is ordinarily "not
sufficient" to plead a criminal charge in an indictment, unless
"`those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offence intended to be punished.'"
Hamling, 418 U.S. at 117 (quoting Carll, 105 U.S. at 612);
accord United States v. Britton, 107 U.S. 655, 661 (1883)
(same); see also Russell, 369 U.S. at 765 (quoting United
States v. Cruikshank, 92 U.S. 542, 558 (1875)) ("`[i]t is an
elementary principle of criminal pleading, that where the
definition of an offence . . . includes generic terms, it is not
sufficient that the indictment shall charge the offence in the
same generic terms as in the definition; but it must state the
species, it must descend to particulars'").
Because Pacheco-Medina has adopted the immigration definition
of entry for application in section 1326 "found in" cases,"
212 F.3d at 1163-64, and because four Circuits and the Board of
Immigration Appeals have held that an entry requires "inspection
and admission by an immigration officer, or . . . actual and
intentional evasion of inspection at the nearest inspection
point," see, e.g., Nyrienda, 279 F.3d at 623, the inspection
component of an "entry" is an element, or material fact, of a
"found in" case. Therefore, it must be included in the
indictment. Jackson, 72 F.3d at 1380; accord Du Bo,
186 F.3d at 1179. There is another reason that the indictment must specify
whether there was "inspection and admission by an immigration
officer, or . . . actual and intentional evasion of inspection
at the nearest inspection point." Nyrienda, 279 F.3d at 623
(emphasis added). Not only must the indictment "contain? the
elements of the offense intended to be charged," it must also
"sufficiently apprise? the defendant of what he must be prepared
to meet." Russell, 369 U.S. at 763 (internal quotations,
citation omitted). Because the indictment alleges only that he
was "found," Mr. Sanchez-Jiminez has no idea whether the
government intends to show that he was inspected and admitted, or
whether he actually and intentionally evaded inspection.
Nyrienda, 279 F.3d at 623. Nor does he know whether he was
indicted for a voluntary entry or voluntarily remaining in the
United States. See Quintana-Torres, 235 F.3d at 1200 (a found
in case may be based upon a voluntary entry or "voluntarily
remaining in the country"). As a result, the indictment fails to
give him the notice guaranteed by the Fifth and Sixth Amendments.
THE INDICTMENT MUST BE DISMISSED BECAUSE IT FAILS TO ALLEGE THE
MENS REA ELEMENT OF THE CHARGED OFFENSE.
The indictment charges Mr. Sanchez-Jiminez with being an alien
found in the United States after deportation in violation of
8 U.S.C. § 1326(a). The indictment fails to allege an element
necessary to convict Mr. Sanchez-Jiminez of the offense: that Mr.
Sanchez-Jiminez knew he was in the United States. As a
consequence, it must be dismissed. See Du Bo,
186 F.3d at 1179.*fn8
Unless a statute unambiguously dispenses with scienter,
criminal statutes are presumed to contain a mens rea
requirement. See, e.g., United States v. X-Citement Video,
Inc., 513 U.S. 64, 70 (1994) (recognizing that "our cases
interpret? criminal statutes to include broadly applicable
scienter requirements, even where the statute by its terms does
not contain them"); Staples v. United States, 511 U.S. 600, 606
(1994) (citing Liparota v. United States, 471 U.S. 419, 426
(1985)) (stating that "offenses that require no mens rea
generally are disfavored" and suggesting that "some indication of
congressional intent, express or implied, is required to dispense
with mens rea as an element of a crime"). This presumption in
favor of scienter "requires a court to read into a statute only
that mens rea which is necessary to separate wrongful conduct from `otherwise innocent conduct.'" Carter v. United States,
530 U.S. 255, 268 (2000) (quoting X-Citement Video,
513 U.S. at 72). Consistent with this presumption, the Supreme Court has
consistently interpreted statutes to require, at a minimum, proof
that the defendant knew the facts that rendered his conduct
unlawful. See, e.g., Carter, 530 U.S. at 268 (knowledge of
the facts that defendant is forcefully taking property.
Here, section 1326(a) sets forth no express knowledge element.
See 8 U.S.C. § 1326(a). However, the historical presumption in
favor of scienter requires, as it did in Staples and Carter,
proof that the defendant knew the facts that rendered his conduct
illegal. Because section 1326(a) prohibits a deported alien from
being found in the United States, the defendant must know all of
the facts that render his conduct illegal. In other words, he
must know that he is in the United States.*fn9 See United
States v. Carlos-Colmenares, 253 F.3d 276, 279 (7th Cir. 2001)
(recognizing that the elements of a section 1326 offense include
that the alien was deported, that he "knowingly returned" to the
United States, and that he did not have the express consent of
the Attorney General to return).
Such a requirement is necessary to distinguish innocent conduct
from guilty conduct. A deported alien who is in Mexico has broken
no U.S. law. Just like the knowledge requirement in Staples
protected those who innocently believed that they possessed a
firearm in the general sense and not a machine gun, the knowledge
requirement here protects those who innocently believe that they
are in Mexico, rather than the United States. There is no
indication that Congress intended to create a strict liability
offense, and the Ninth Circuit's decision in Pena-Cabanillas
and the presumption in favor of scienter require the opposite
conclusion. Thus, section 1326 requires, as an element of the
offense, proof that the defendant knew that he was in the
United States. VI.
THIS COURT SHOULD DISMISS THE INDICTMENT BECAUSE THE GRAND JURY
INSTRUCTIONS WERE IMPROPER
The grand jury that indicted Mr. Sanchez-Jiminez likely was
misinstructed that: (1) it cannot consider the wisdom of any law
passed by Congress; (2) it cannot consider penalty information;
and (3) probable cause has already been determined by a judge
after a preliminary hearing.*fn10
The effect of these
instructions was to deny Mr. Sanchez-Jiminez his Fifth Amendment
right to the traditional functioning of the grand jury.
The grand jury that indicted Mr. Sanchez-Jiminez likely was
given the model charge by the Administrative Office of the
United States Courts. See, e.g., In Re: the Empanelment of Grand Jury
Panels 04-1 and 04-2, January, 2004. In United States v.
Navarro-Vargas, ___ F.3d ___, 2005 WL 1206632 (9th Cir. May 23,
2005), in a 6 to 5 decision, a closely split en banc panel of the
Ninth Circuit rejected these challenges to the instructions given
to grand juries in the Southern District of California.*fn11
Importantly, however, no Supreme Court authority supports the
model charge, and United States v. Williams, 504 U.S. 36
(1992), makes clear that district courts have little authority to
craft rules of grand jury procedure. 504 U.S. at 50. See also
United States v. Marcucci, 299 F.3d 1156, 1167 (9th Cir.)
(Hawkins, J., dissenting), cert. denied, 538 U.S. 934 (2003)
(majority opinion misrepresented Marcucci's argument). "In the
hands of the grand jury lies the power to charge a greater
offense or a lesser offense; numerous counts or a single count;
and perhaps most significant of all, a capital offense or a
non-capital offense." Vasquez v. Hillery, 474 U.S. 254, 263
(1986). Grand jurors must assess "the need to indict." Id. at
264. By giving an instruction that precludes the grand jury from
exercising its core function, the district court substantively
interferes with the grand jury's traditional discretion. See Marcucci, 299 F.3d at 1169
(Hawkins, J., dissenting).*fn12 That is precisely what
happened in this case.
MR. SANCHEZ-JIMINEZ'S FINGERPRINTS AND STATEMENTS SHOULD BE
SUPPRESSED AS THE FRUITS OF AN ILLEGAL ARREST
It is anticipated that the government will seek to introduce
evidence of statements and fingerprints taken from Mr.
Sanchez-Jiminez subsequent to his arrest.
A. Mr. Sanchez-Jiminez was subject to an Illegal Arrest in
Violation of the Fourth Amendment
The Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend. IV
(emphasis added). Thus, an illegal arrest or other unreasonable
seizure of a person is a violation of the Fourth Amendment. See
Davis v. Mississippi, 394 U.S. 721, 726 (1969) (the
Fourth Amendment "was meant to prevent wholesale intrusions upon the
personal security of our citizenry"). "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 he was not free to leave." U.S. v.
Mendenhall, 446 U.S. 544 (1980). Thus, an arrest occurs when the
officer has in some way restrained a person's liberty. U.S. v.
Benjamin, 995 F.2d 756, 759 (7th Cir. 1993).
To determine whether an arrest has occurred within the meaning
of the Fourth Amendment, this Court will consider "all the
surrounding circumstances, including the extent to which liberty
of movement is curtailed and the type of force or authority
employed." United States v. Robertson, 833 F.2d 777, 780 (9th
Cir. 1987). A court will evaluate both "the intrusiveness of the
stop (the aggressiveness of the methods used by police and the
degree to which the suspect's liberty was restricted" and the
justification for using such tactics (whether the officer had
sufficient basis to fear for his or her safety warranting a more
intrusive action)." See United States v. Rousseau, 257 F.3d 925, 929
(9th Cir. 2001) (citing Washington v. Lambert, 98 F.3d 1181,
1185 (9th Cir. 1996)) (other internal citations omitted).
An arrest, with or without a warrant, must be based upon
probable cause. "The general rule is that every arrest and every
seizure having the essential attributes of a formal arrest is
unreasonable unless it is supported by probable cause." Michigan
v. Summers, 452 U.S. 692, 700 (1981). Probable cause exists if
the facts and circumstances known to the officer warrant a
prudent man in believing that the offense has been committed by
the person to be arrested. Henry v. U.S., 361 U.S. 98, 102
At the time of the arrest in this case, Mr. Sanchez-Jiminez
standing in the back of the La Cocina De Jose Restaurant minding
his own business. The San Diego Police Officers were responding
to a regarding several males drinking beer behind the restaurant.
Mr. Sanchez-Jiminez was approached by two uniformed officers who
began questioning him regarding his immigration status. He was
not free to leave. After a records check revealed a positive
immigration and criminal history they placed his under arrest for
violating 8 U.S.C. § 1326 and contacted border patrol. This was a
de facto arrest without probable cause.
B. The Fruits of the Illegal Arrest Must be Suppressed
All fruits of the illegal arrest must be suppressed. Wong Sun
v. United States, 371 U.S. 471 (1963). Mr. Sanchez-Jiminez's
statements, and any fruits of the arrest including fingerprints,
must therefore be suppressed. Although the identify of a
defendant is not itself suppressible as fruit of an unlawful
arrest, evidence unlawfully seized during the course of criminal
investigation, that tends to establish identity, is suppressible.
U.S. v. Garcia-Beltran, 389 F.3d 864 (9th Cir. November 18,
In United States v. Garcia-Beltran, this Court found that
fingerprints taken for investigatory purposes rather than for
purposes of identification were suppressible as the result of an
illegal detention. See id. In making this finding, this Court
described an investigatory purpose as one which connects a
defendant to alleged criminal activity. See id,
389 F.3d at 865. "Thus, on remand, if the evidence were to show that as a
consequence of the illegal arrest of Garcia-Beltran, law
enforcement officials obtained his fingerprints to pursue a
criminal immigration law violation, the fingerprints would be
subject to suppression unless they were obtained by "means
sufficient to have purged the taint of the initial illegality."
Id. at 868 citing to United States v. Guevara-Martinez,
262 F.3d 751, 755 (8th Cir. 2001). Border Patrol Agent Marlon Ybarra wrote in his Form I-213 that
he conducted records searches "to ascertain whether or not Mr.
Sanchez-Jiminez possessed immigration documents. At that point,
his identity was established or else he would not have relied on
this information. Fingerprints that were taken at the Border
Patrol Station and run through the ENFORCE/IDENT/IAFIS system
were therefore investigatory, because it was apparent that after
Mr. Sanchez-Jiminez's illegal arrest, Agent Ybarra was
investigating and not taking his fingerprints for identification
purposes. By his own admission this was the case. As in
Garcia-Beltran, the reasons for taking the fingerprints was
investigatory to connect a defendant to alleged criminal
activity. See Garcia-Beltan, 389 F.3d at 865. As the
investigatory purpose was the sole reason for the taking of the
prints, the fingerprints must also be suppressed as a fruit of
the illegal arrest of Mr. Sanchez-Jiminez.
If this court does not suppress these items as a result of this
motion, Mr. Sanchez-Jiminez would request an evidentiary hearing
to determine whether the agents were conducting further
investigation or not.
REQUEST FOR LEAVE TO FILE FURTHER MOTIONS
As mentioned above, Mr. Sanchez-Jiminez and defense counsel
have received limited discovery in this case. As new information
surfaces due to the government providing discovery in response to
these motions or an order of this Court, the defense may need to
file further motions. Therefore, defense counsel requests the
opportunity to file further motions.
For the reasons stated above, Mr. Sanchez-Jiminez respectfully
requests that the Court grant the foregoing motions.
CAREY D. GORDEN
California Bar No. 236251
FEDERAL DEFENDERS OF SAN DIEGO, INC.
225 Broadway, Suite 900
San Diego, California 92101-5008
Telephone: (619) 234-8467 ext. 3766
Attorneys for Jose Sanchez-Jiminez
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
(HONORABLE DANA M. SABRAW)
UNITED STATES OF AMERICA, ) Case No. 05CR1373-DMS
Plaintiff, ) Date: September 23, 2005
) Time: 11 a.m.
) DECLARATION OF JOSE SANCHEZ-JIMINEZ
JOSE SANCHEZ-JIMINEZ, ) SUPPORT OF MOTIONS TO SUPPRESS
) EVIDENCE AND TO SUPPRESS STATEMENTS
I, Jose Sanchez-Jiminez, do hereby declare under penalty of
1. I am the accused in the above-entitled action. I make this
declaration in support of motions to suppress evidence and
2. At approximately 3:00 pm, on May 23, 2005, I was behind a
restaurant called "La Cocina de Jose" in Linda Vista, California.
3. While I was outside the restaurant, two San Diego Police
Officers walked up and began questioning me about my citizenship
and right to be in this country.
4. The officers did not read me Miranda rights. I further did
not feel free to leave.
5. I was intimidated by the agents.
6. Had the police officers told me when they stopped me that I
did not have to speak to them and was free to leave, I would not
have spoken with them.
7. I was then taken by border patrol to the Imperial Beach
Station and was questioned by agents.
8. I was intimidated by the agents.
10. I did not fully understand my rights.
11. After returning to the station, the agent took my
13. Had the border patrol agent told me when he stopped me that
I did not have to speak to him and was free to leave, I would not
have spoken with him.
I swear that, to the best of my knowledge and memory, the
foregoing is true and correct, this 9th day of September 2005, in
San Diego, California.
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