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United States District Court, S.D. California

September 9, 2005.


The opinion of the court was delivered by: DANA M. SABRAW, District Judge

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.



  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 statements.

  (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 deportation.

  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 requests it.

  (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 the defendant.

  (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, 490-92 (1963).

  (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. 16(a)(1)(E).

  (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.



A. Introduction
  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 added).*fn4 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 The fact 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 omitted).*fn6 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 Parga-Rosas.

  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.


  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 law).

  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 official restraint.
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 "Entry."

  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 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.


  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.



  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 (1959).

  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, 2004).

  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.



  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




  I, Jose Sanchez-Jiminez, do hereby declare under penalty of perjury:

  1. I am the accused in the above-entitled action. I make this declaration in support of motions to suppress evidence and statements.

  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 fingerprints.

   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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