The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
Defendant Jose Nunez-Beltran (Nunez) appeals from the judgment and commitment imposed by the magistrate judge after Nunez was found guilty of attempted illegal entry into the United States in violation of 8 U.S.C. § 1325(a)(1). The magistrate judge had original jurisdiction to conduct the trial under 28 U.S.C. § 636(a)(4) and 18 U.S.C. § 3401, and this court has review jurisdiction under 18 U.S.C. § 3402. Nunez has timely appealed.
On January 26, 2010, at 6:15 a.m., Customs and Border Protection Officer Edwin Selga (Officer Selga) was working in Vehicle Lane 24 at San Ysidro Port of Entry. (Trial transcipt "TT," 22:4). While taking declarations from a vehicle, Nunez appeared on Officer Selga's right-hand side, immediately to his right. (TT 26:3). Officer Selga did not see Nunez in his peripheral vision, and believes Nunez must have been running because he came so fast to Officer Selga's vehicle lane. (TT 26:13-15). Officer Selga somewhat pushed Nunez and asked him, in Spanish, if he had documents. (TT 26:21-25). Then Nunez pushed Officer Selga because he was holding onto Nunez, and Officer Selga again asked, in Spanish, if Nunez had documents. (TT 27-28:19-5). Nunez then attempted to move away from Officer Selga, and Officer Selga grabbed him and pushed him towards Officer Selga's booth. (TT 28:7-12). After that, there was a brief struggle, during which Nunez attempted to run south, towards Mexico. (TT 28-29:18-3). Officer Selga pushed Nunez against a metal gate, after which Nunez stopped struggling. (TT 29-30:20-4). Officer Selga then called for assistance, and Officer Nelson Perez, along with a few other officers, came and handcuffed Nunez. (TT 30:8-15 and 35:12-13). Nunez was then taken to a security office. (TT 31:1).
Around 7:30 a.m. the same day, Customs and Border Protection Officer Adriana Rosas-Carranza (Officer Rosas), interviewed Nunez. (TT 45:16-18). Nunez told Officer Rosas that he was a Mexican citizen, born in Sinaloa, Mexico and his parents were also born in Mexico (TT 52:14-25). Nunez then said he did not possess any documents allowing him to legally enter the United States, and that he was going to San Diego to work. (TT 53:6-24). Nunez then said he thought it would be easy to get through the gate, but he was going to turn around and return to Mexico when he realized there was an officer in the booth. (TT 54:11-16). Officer Rosas searched for records of Nunez, but there was no criminal or immigration history. (TT 64:21-24).
While screening Nunez at the Metropolitan Correction Center (MCC) in San Diego, Brujilio Camagay, a staff practitioner at MCC, diagnosed Nunez with heroin withdrawal, and designated him to be "detoxed." (TT 118). After that, Nunez was admitted to the Alvarado Parkway Institute, where Dr. Jorge Barrerra examined Nunez on January 28, 2010, and admitted him for mental illness and detoxification from heroin. (TT 129-130). During the examination, Nunez told Dr. Barrerra that he was born in Culiacan, Mexico. (TT 140:15).
On March 3, 2010, two days before trial, Nunez made motions to dismiss the information for duplicity. (Doc. 12). The government responded on March 4, 2010, and issued a bill of particulars, which reduced the charging information to a violation of 8 U.S.C.§ 1325 (a)(1) and (a)(2), included in one count. (Doc. 15 and 16).
The trial commenced on March 5, 2010. (Doc. 20). At trial, Nunez objected to the admission of Nunez's birth certificate into evidence because the certificate did not comply with Federal Rules of Evidence 902(3). (TT 86:12-24). The magistrate judge held that the certificate was admissible after the government submitted an apostille. (TT 104:7-15). At that time, Nunez moved for acquittal pursuant to the Federal Rules of Criminal Procedure. The magistrate judge granted the motion as to 8 U.S.C.§ 1325 (a)(2), but denied it as to (a)(1). (TT 110). The magistrate judge found Nunez guilty of violating 8 U.S.C.§ 1325 (a)(1), attempted illegal entry.. (TBT
Duplicity of the Charging Information
Whether an indictment is duplicitous is a question of law reviewed de novo. See U.S. v. Martin, 4 F.3d 757, 759 (9th Cir. 1993). "Duplicity is the joining in a single count of two or more distinct and separate offenses." U.S. v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). In reviewing an indictment for duplicity, the correct inquiry is not whether the evidence introduced at trial supports charging several crimes, but whether the "indictment itself can be read to charge only one violation in each count." Id. 4 F.3d at 759. The court's decision not to dismiss an allegedly duplicitous indictment is reviewed de novo. See U.S. v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir. 2001).
Nunez points to several cases illustrating the dangers inherent in duplicitous indictments: jury confusion, lack of notice to the defendant, difficulty in making evidentiary rulings, and prejudice to the defendant. See United States v. Aguilar, 756 F.2d 1418 n.2 (9th Cir. 1985); see also United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). The primary concern raised by the 9th Circuit in many cases is the danger that "a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offense." United States v. Ramirez, 273 F.3d 903, 913 (9th Cir. 2001) (quoting United States v. UCO Oil Co. 546 F.2d 833, 835).
Originally, the government's charging document included all five possible charges listed under 8 U.S.C.§ 1325 (a), including entering, or attempting to enter the United States at a time or place other than designated by immigration officers, eluding examination or inspection by immigration officers, and attempting to enter or entering the United States by a willfully false or misleading representation or the willful concealment of a material fact. The government included all of these charges in a single count. On March 4, 2010, the government ...