The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
On August 29, 2007, a federal grand jury in the Southern District of California returned an Indictment charging the Defendant Oscar Javier Garcia-Hernandez ("Defendant") with one count of Attempted Re-entry in violation of Title 8, United States Code, § 1326(a) and (b). Defendant was arraigned on the Indictment on October 1, 2007, and entered a plea of "not guilty." Thereafter, Defendant filed several substantive motions, which included: 1) Motion to Dismiss Indictment Because it Fails to Allege All Elements of the Charged Offense; 2) Motion to Dismiss Indictment Because it Violates Defendant's Right to Presentment; 3) Motion to Dismiss Indictment Due to Misinstruction of the Grand Jury; 4) Motion to Strike Surplusage from the Indictment; 5) Motion to Dismiss Indictment Because it Violates Defendant's Right to Speedy Trial; 6) Motion to Produce Grand Jury Transcripts; and 7) Motion to Suppress Statements.
A motion hearing was held on January 22, 2008, where the Court addressed each of Defendant's substantive motions. The Court denied the following motions during that hearing:
1) Motion to Dismiss Indictment Because it Fails to Allege All Elements of the Charged Offense; 2) Motion to Dismiss Indictment Because it Violates Defendant's Right to Presentment; 3) Motion to Dismiss Indictment Due to Misinstruction of the Grand Jury; 4) Motion to Dismiss Indictment Because it Violates Defendant's Right to Speedy Trial; and 5) Motion to Produce Grand Jury Transcripts. The Court reserved ruling on both the Motion to Strike Surplusage from the Indictment and the Motion to Suppress Statements.
The Court later denied Defendant's Motion to Strike Surplusage from the Indictment on March 3, 2008. Also on that date, the parties consented to a bench trial. The Court also agreed to have Defendant's Motion to Suppress heard simultaneously with the trial testimony.
Defendant's bench trial began on March 5, 2008, and lasted one day. The Government called four witnesses: 1) United States Border Patrol Agent Martin Macias; 2) United States Border Patrol Agent Jorge Anderson; 3) United States Border Patrol Agent Thomas Steele; and 4) United States Border Patrol Agent Jason McGilvray. The parties stipulated to the testimony of the fingerprint expert. The Defendant exercised his right not to testify.
During the trial, evidence was presented that Defendant was apprehended on July 2, 2007, after crossing the Mexican/United States border sometime around 4:00 a.m. An ariel photograph was placed into evidence that illustrated the remote area where the Defendant had crossed, specifically the six foot berm just before the drag road where the Defendant traversed. See Exhibit One (Google Earth Location of Apprehension). After his apprehension, Defendant was turned over to United States Border Patrol Agent Martin Macias ("Agent Macias"). Agent Macias testified that he took custody of Defendant at 4:10 a.m., and informed Defendant of his administrative rights as well as obtained limited biographical information from him. See Exhibit Two (Form I-826).*fn1
Defendant remained in custody from 4:00 a.m. to 5:00 p.m. before his processing began. Approximately six and one half hours later, at 11:43 p.m., Defendant was advised that his administrative rights were no longer applicable. Defendant was then admonished of his Miranda rights. United States Border Patrol Agent Jorge Anderson ("Agent Anderson") confirmed this time line and explained the reason behind the delay. Due to the heavy caseload on July 2, 2007, Defendant could not be processed prior to 5:00 p.m. Apparently, there were 32 apprehensions during the 1:00 a.m. to 8:00 a.m. shift, and 47 apprehensions during the day shift. This included six separate cases. Also noteworthy, Defendant was originally held as a "reinstatement of removal" case, and not as a criminal prosecution matter.
As a result, Defendant's processing began at 5:00 p.m. Defendant was again advised of his administrative rights pursuant to Form 215B at 6:00 p.m. See Exhibit C (Form 215B).
The Administrative Rights form includes an "advice of rights". The questions, which the Defendant answered included place of birth and when, how, and where Defendant entered the United States. Although form 215B has the name of "Eduardo Vasquez, an Officer of the Immigration and Naturalization Service," Agent Anderson testified that his signature is on the third page and that he himself took Defendant's information. Agent Anderson also testified that processing, including finger prints, typically takes about three and one half hours. The matter was then submitted to Agent Anderson's supervisor. After review, his supervisor concluded that Defendant met the guidelines for criminal prosecution. Defendant was informed of this fact at 11:43 p.m. The Defendant was also informed that his administrative rights were no longer applicable. Defendant was then informed of his Miranda rights. ...
After stating that he understood his rights, Defendant agreed to make a videotaped statement. In that statement, Defendant admitted to his illegal status. During the trial, the defense pointed to a disparity in Agent Anderson's report as to the chronology of the order of the advisement of Miranda rights and that of the advisement of administrative rights. The Government, however, provided a supplemental report prior to trial to the defense, which explained away the disparity. Agent Anderson mistakenly ascribed the substance of Defendant's post "administrative rights" statement as having occurred during his post-Miranda statement. Apparently, during the process of "cutting-and- pasting," the Miranda admonishment was placed in the third paragraph rather than ...