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United States v. Lopez-Lopez

October 27, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CARLOS ROGELIO LOPEZ-LOPEZ, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the motion for sanctions due to failure of the government to promptly provide requested discovery and to invalidate removal order filed by the Defendant Carlos Rogelio Lopez-Lopez. ECF No. 20.

BACKGROUND FACTS

On June 2, 1995, Defendant entered a plea of nolo contendere to a charge of Unlawful Taking of a Vehicle, in violation of Cal. Vehicle Code § 1085(A). Defendant was sentenced to serve a year and four months in custody.

On April 16, 2008, the Defendant was convicted of Receiving Stolen Property, Motor Vehicle, in violation of Cal. Penal Code § 496d(a) in the Superior Court of Los Angeles County, and sentenced to three years in custody.

On or about September 21, 2009, the United States Department of Homeland Security issued a Notice to Appear in removal proceedings under section 240 of the Immigration and Nationality Act. The Notice to Appear charged that the Defendant was subject to removal from the United States on the grounds that he had been "convicted of two crimes of moral turpitude not arising out of a single scheme of criminal misconduct." ECF No. 14-2 at 2. The Notice to Appear alleged that the Defendant is not a citizen of the United States; that he is a native and citizen of Mexico, and that he was admitted to the United States on or about November 23, 1992 as a Lawful Permanent Resident. The Notice to Appear alleges that the Defendant was convicted on June 14, 1995 in the Superior Court of California of UNLAWFUL DRIVE/TAKE VEHICLE in violation of Section 10851(A) of the California Vehicle Code and sentenced to one year and four months incarceration; and that on April 16, 2008 the Defendant was convicted of RECEIVE STOLEN PROPERTY/MOTOR VEHICLE, in violation of Section 496(A) of the Penal Code of California and sentenced to three years incarceration. Id. at 4. Defendant signed the request for a prompt hearing contained on the Notice to Appear. Id. at 3.

On September 24, 2009, after the conclusion of his state sentence, Defendant was transferred to the Bakersfield County jail where he remained for eight days. Defendant was then transferred to the Immigration Detention Center in El Paso, Texas.

On October 28, 2009, the Defendant appeared at an immigration hearing before an immigration judge at the Immigration Detention Center. At the immigration hearing, an amended allegation was filed stating that he was subject to being taken into custody and deported pursuant to "237(a)(2)A)(iii) of the Immigration and Nationality Act (Act) as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in Section 101(a)(43)(G) of the Act." Id. at 5. Defendant agreed to the amendment and admitted that he was convicted as charged. Based upon the Defendant's admission to the aggravated felony as alleged, the Immigration Judge found that the Defendant was not entitled to relief from deportation and ordered the Defendant deported to Mexico. The Immigration Judge stated: "You are free to file an appeal of that order if you like, or you can accept the order as final and binding today. Tell me what you want to do." Defendant responded: "I'll accept the order final, final." Id. at 10.

On October 29, 2009, Defendant was deported through the San Ysidro Port of Entry. On March 22, 2010, Defendant approached the pedestrian primary inspection area at the Calexico West Port of Entry. The primary inspection officer ran Defendant's name in TECS and a positive look-out came up, indicating that Defendant had been convicted of auto theft in 1995 and receiving stolen property in 2008. Defendant was subsequently placed under arrest.

On May 21, 2010, Defendant was indicted by the federal grand jury on charges that he was a deported alien attempting re-entry into the United States in violation of Title 8, United States Code, Sections 1326(a) and (b). During the prosecution of this case, Counsel for the Defendant requested a copy of the audio recording of the October 28, 2009 removal hearing. Counsel for the Government made inquiries and attempts to obtain the audio recording. The audio recording was received by Counsel for the Government and made available to Counsel for the Defendant on or about October 13, 2010.

Defendant subsequently filed the motion now before the Court on October 15, 2010. Trial is scheduled for October 27, 2010.

CONTENTIONS OF THE PARTIES

Defendant contends that the Court should preclude the Government from introducing evidence of his removal on October 28, 2009 as a sanction for failing to promptly produce the audio tapes. In the alternative, Defendant asserts that the Court should invalidate the October 28, 2009 removal order on the grounds that the Immigration Service failed to honor his request for a prompt hearing which resulted in prejudice to him.

The Government asserts that sanctions are not appropriate because the Government Counsel acted in good faith at all times, the Government Counsel produced the audiotapes as soon as they were available, and the Defendant suffered no prejudice from the delay. The Government asserts that the Defendant received a prompt ...


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