The opinion of the court was delivered by: DANA SABRAW, District Judge
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTIONS
STATEMENT OF FACTS
Mr. Oscar Castillo-Romero is charged with attempted entry after
THIS COURT SHOULD DISMISS THE INDICTMENT FOR ITS FAILURE TO
ALLEGE ESSENTIAL ELEMENTS OF THE OFFENSE.
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
"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
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."
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.
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.
THIS COURT SHOULD SUPPRESS ANY STATEMENTS MADE BY MR.
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
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
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 ...