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September 30, 2005.


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

Mr. Oscar Castillo-Romero is charged with attempted entry after deportation.


  The indictment should be dismissed because the government failed to allege an overt act.

  A. An Overt Act that was a Substantial Step Towards Re-Entering the United States is an Element of Attempted Re-Entry.

  "The common law meaning of attempt is the specific intent to engage in criminal conduct and . . . an overt act which is a substantial step towards committing the crime." Gracidas-Ulibarry, 231 F.3d at 1192 (internal quotations omitted) (citing United States v. Arbelaez, 812 F.2d 530, 534 (9th Cir. 1987); accord United States v. Bailey, 444 U.S. 394, 405, 100 S. Ct. 624 (1980); Wooldridge v. United States, 237 F. 775, 778-79 (9th Cir. 1916) (collecting common law sources "holding that, to constitute an attempt, there must be the intent to commit a crime and some act done toward its consummation, and that the term `attempt' signifies both an act and the intent with which it is done"); Model Penal Code & Commentaries § 5.01 cmt. at 305 (1985) (noting that Code's definition of attempt "retains the common law requirement of purposive conduct [the Code's term for specific intent] as a prerequisite for attempt liability"); BLACK'S LAW DICTIONARY 123-24 (7th ed. 1999) ("`Every attempt is an act done with intent to commit the offence so attempted.'") (quoting John Salmond, Jurisprudence 387 (Glanville L. Williams ed., 10th ed. 1947)); 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.2, at 18 (1986) ("The crime of attempt . . . [at] common law . . . consists of: (1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and (2) an act in furtherance of that intent which . . . goes beyond mere preparation."); Rollin M. Perkins & Ronald N. Boyce, Criminal Law § 3.A.7, at 637 (3d ed. 1982) ("[A]n attempt to commit any crime requires a specific intent to commit that particular offense."); 4 Charles E. Torcia, Wharton's Criminal Law § 693, at 580 (15th ed. 1996) ("At common law, a person commits an attempt when, with intent to commit a particular crime, he performs an act which tends toward but falls short of consummation of such crime.").

  The Ninth Circuit has adopted the common-law definition of attempt and held that "the elements of the crime of attempted illegal reentry into the United States under 8 U.S.C. § 1326 are: (1) the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorney General; (2) the defendant committed an overt act that was a substantial step towards reentering without that consent; (3) the defendant was not a citizen of the United States; (4) the defendant had previously been lawfully denied admission, excluded, deported or removed from the United States; and (5) the Attorney General had not consented to the defendant's attempted reentry." Gracidas-Ulibarry, 231 F.3d at 1196 (emphasis added); see also United States v. Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2003) (holding that "[a]ttempted entry essentially requires two elements: (1) the specific intent to reenter without consent; and (2) an overt act that was a substantial step towards this illegal reentry."); see also 9TH CIR. CRIM. JURY INSTR. 9.5A (2003). Thus, in a prosecution under 8 U.S.C. § 1326, one of the essential elements of an attempted reentry is an overt act that was a substantial step toward reentering the Untied States. B. All Elements of a Charged Offense Need to be Recited in an Indictment

  The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. Amend. V. The Sixth Amendment provides that "[i]n all criminal prosecutions the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation. . . ." U.S. Const. Amend. VI. Thus, a defendant has a constitutional right to have the charges against him presented to a Grand Jury and to be informed of the grand jury's findings via indictment. See Russell, 369 U.S. at 763 (An indictment must "contain? the elements of the offense intended to be charged, and sufficiently apprise? the defendant of what he must be prepared to meet.").

  To be sufficient, an indictment must allege every element of the charged offense. See United States v. Morrison, 536 F.2d 286, 287 (9th Cir. 1976) (citing United States v. Debrow, 346 U.S. 374 (1953)). Indeed, in order to be sufficient an indictment must include implied elements not present in the statutory language. See Du Bo, 186 F.3d at 1179. "If an element is necessary to convict, it is also necessary to indict, because elements of a crime do not change as criminal proceedings progress." United States v. Hill, 279 F.3d 731, 741 (9th Cir. 2002). An indictment's failure to "recite an essential element of the charged offense is not a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment." Du Bo, 186 F.3d at 1179.

  The Ninth Circuit unequivocally held in Gracidas Ulibarry that an overt act that was a substantial step toward reentering — just like the specific intent to reenter — is an element of the charge of attempted reentry under 8 U.S.C. § 1326. 231 F.3d at 1196. As an element, the overt act/substantial step must be recited in the indictment. See Pernillo-Fuentes, 252 F.3d at 1032; see also Russell, 369 U.S. at 763; see also Du Bo, 186 F.3d at 1179; and Morrison, 536 F.2d at 287. In Pernillo-Fuentes, The Ninth Circuit noted that "the crime of attempted illegal reentry includes the common law element of specific intent." 252 F.3d at 1032 (quoting Gracidas-Ulibarry). The Ninth Circuit went on to hold that because the "indictment charging attempted entry did not allege specific intent as required under Gracidas-Ulibarry, we reverse [the] conviction." Id.

  Here, the Government failed, just as it did in Pernillo-Fuentes, to allege an element of common law attempt — an overt act that was a substantial step toward commission of the crime. Because an essential element of the charged crime was left out of the indictment it should have been dismissed and The Ninth Circuit should therefore reverse Mr. Castillo-Romero's conviction. See Pernillo-Fuentes, 252 F.3d at 1032.

  C. The Indictment must Inform a Defendant of the Specific Offense with Which He Is Charged.

  In addition to failing to recite the overt act/substantial step element, the indictment was insufficient and required dismissal because it did not specify, factually, what the overt act/substantial step was. "A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances." United States v. Hess, 124 U.S. 483 (1888) (citing United States v. Cruikshank, 92 U.S. 542, (1875). "It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, 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." Russell, 369 U.S. at 765. (citing Cruikshank, 92 U.S. at 558) (internal quotations omitted). As such, "[a]n indictment not framed to apprise the defendant with reasonable certainty, of the nature of the accusation against him is defective, although it may follow the language of the statute." Id. at 765 (citing United States v. Simmons, 96 U.S. 360, 362 (1877). Thus, the elements, fully recited in an indictment "must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." Id. at 765 (citing Hess, 124 U.S. at 487; Pettibone v. United States, 148 U.S. 197, 202-04 (1893); Blitz v. United States, 153 U.S. 308, 315 (1894); Keck v. United States, 172 U.S. 434, 437 (1899); and Morissette v. United States, 342 U.S. 246, 270, n. 30 (1952).*fn1

  The Ninth Circuit has followed the rule of law established by the Supreme Court:
[Defendants have] the constitutional right to be informed of the nature and cause of the accusation against them. To furnish them with that information it [is] necessary to set forth in the indictment the particular facts and circumstances which render? them guilty and to make specific that which the statute states in general.
Foster v. United States, 253 F. 481, 482 (9th Cir. 1918). In Foster, the defendants were charged, on specific dates, at Camp Lewis, Washington, with "willfully, knowingly, unlawfully, and feloniously," making false reports, causing insubordination and obstructing recruitment in interference with the war effort.*fn2 253 F.3d at 481. The Ninth Circuit held that all six counts in the indictment were insufficient. The Foster Court noted that the indictment was "as bare of information as to the nature of their offense as would have been an indictment charging that at a designated time and place [the defendants] committed larceny." Id. at 482. In order for an indictment to be sufficient "facts are to be stated, not conclusions of law alone." Id. at 483.

  Mr. Romero-Castillo's indictment charges that he attempted to enter the United States. It gives an approximate date and location, but it does not state that he took a substantial step in furtherance of the crime, nor does it state what particular actions Mr. Romero-Castillo took that make up that substantial step. Thus, in addition to failing to recite the "generic" element of overt act/substantial step, the indictment failed to set forth the "particular facts and circumstances" that make Mr. Romero-Castillo guilty of taking an overt act/substantial step. See Foster, 253 F. at 482. Because the indictment was insufficient, Mr. Romero-Castillo's conviction for attempted reentry should be reversed. III.

A. The Government Must Demonstrate Compliance With Miranda.
1. Miranda Warnings Must Precede Custodial Interrogation.
  The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966).*fn3 Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. See Orozco v. Texas, 394 U.S. 324, 327 (1969).

  Once a person is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his or her "critical" rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990). If a defendant indicates that he wishes to remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474. See also Edwards v. Arizona, 451 U.S. 484 (1981).

  Here, the agent's reports indicated that they arrested Mr. Castillo-Romero and first read him his administrative rights. They then asked him questions about his immigration status and asked him to sign forms such as a Notice of Intent to Reinstate his Prior Deportation Order.*fn4 In an immigration case, this type of information can be reasonably likely to elicit an incriminating response, and thus, these questions should have been preceded by Miranda warnings. The failure of the agents to advise Mr. Castillo-Romero of his Miranda rights requires exclusion of these statements.

  In addition, after the agents advised Mr. Castillo-Romero of his administrative rights, they later advised him of his Miranda rights which he invoked. Any statements made after this invocation must be excluded. Thus, all statements made by Mr. Castillo-Romero should be suppressed at trial.

  2. The Government Must Demonstrate That Any Alleged Waiver of Mr. Castillo-Romero's Rights Was Voluntary, Knowing, and Intelligent.

  When interrogation occurs without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant intelligently and voluntarily waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda, 384 U.S. at 475. It is undisputed that, to be effective, a waiver of the right to remain silent and the right to counsel must be made knowingly, intelligently, and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The standard of proof for a waiver of these constitutional rights is high. Miranda, 384 U.S. at 475. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984) (the burden on the government is great, the court must indulge every reasonable presumption against waiver of fundamental constitutional rights).

  The validity of the waiver depends upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Edwards v. Arizona, 451 U.S. 477, 472 (1981); Johnson v. Zerbst, 304 U.S. 458, 464 (1983). See also United States v. Heldt, 745 F.2d at 1277; United States v. McCrary, 643 F.2d 323, 328-29 (9th Cir. 1981).

  In Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), the Ninth Circuit confirmed that the issue of the validity of a Miranda waiver requires a two prong analysis: the waiver must be both (1) voluntary, and (2) knowing and intelligent. Id. at 820. The voluntariness prong of this analysis "is equivalent to the voluntariness inquiry under the [Fifth] Amendment. . . ." Id. See infra pages 10-11.

  The second prong, however, requiring that the waiver be "knowing and intelligent," mandates an inquiry into whether "the waiver [was] made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 820-21 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)). This inquiry requires that the court determine whether "the requisite level of comprehension" existed before the purported waiver may be upheld. Id. Thus, "[o]nly if the `totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quoting Colorado v. Spring, 479 U.S. at 573) (emphasis in original) (citations omitted)).

  Under prevailing Ninth Circuit law, the Government bears the burden of demonstrating a Miranda waiver by clear and convincing evidence. See Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000) (en banc) (constitutional rights may ordinarily be waived only if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent) (citations omitted). Moreover, The Ninth Circuit must "indulge every reasonable presumption against waiver of fundamental constitutional rights." Id. (citations omitted). Unless and until the prosecution meets its burden of demonstrating through evidence that adequate Miranda warnings were given and that ...

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