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United States of America v. Agustin Vasquez-Olea

January 18, 2011


The opinion of the court was delivered by: HONORABLELARRYALANBurns United States District Judge


Agustin Vasquez-Olea appeals a verdict returned by Magistrate Judge Battaglia after a bench trial. Judge Battaglia found Mr. Vasquez-Olea guilty of illegal entry into the United States and sentenced him to 90 days in custody. Mr. Vasquez-Olea raises three issues on appeal. The first is whether certain testimony by Customs and Border Patrol Agent Tobar should have been excluded. The second is whether statements Mr. Vasquez-Olea made prior to being read his Miranda rights should be suppressed. The third is whether the government presented sufficient evidence of Mr. Vasquez-Olea's alienage.

I. Background Facts

Early in the morning of April 28, 2010, early in the morning, a sensor located a few yards north of the United States-Mexico border activated. At 5:30 a.m., approximately two miles north of the border, a second sensor activated along a known smuggling trail. (Tr. 31, 63.) At 5:45 a.m., Customs and Border Patrol Agent Steven Barr checked the morning's sensor logs, and he drove to the second sensor location around 7:30 a.m. There, Agent Barr found muddy footprints, broken branches and debris leading north into the mountains. He hiked the trail and tracked the "solid unbroken line of muddy footprints" until around 9:30 or 10:00 a.m., at which time he found a group of nine people, including Mr. Vasquez-Olea, lying in tall brush. (Tr. 38-39.) Agent Barr testified that the group "looked as though they were going to try to get up and run." (Tr. 39.) He drew his pistol, ran in the direction of the group, and ordered them to remain on the ground. He asked each of them what country they were from and whether they had immigration documents. Mr. Vasquez-Olea responded that he was from Mexico and did not have any immigration documents.

Agent Barr arrested the members of the group and led them to a road where other agents picked them up and drove them to a Border Patrol station. At the station, Mr. Vasquez-Olea waived his Miranda rights before speaking with Customs and Border Patrol Agent Robert Tobar. During the interrogation, Mr. Vasquez-Olea said he was born in and was a citizen of Mexico, and that he did not have the papers to enter the United States legally. Mr. Vasquez-Olea was held at the Metropolitan Correctional Center (MCC) in San Diego.

On May 11, 2010, Mr. Vasquez-Olea placed a phone call from the MCC to two individuals. During the call, which was in Spanish and was recorded, Mr. Vasquez-Olea admitted he had entered the United States illegally and that he planned to attempt a re-entry upon release. At trial, a technician from the MCC explained how each inmate used a unique PIN number to make calls and that all calls are recorded in the ordinary course of business. An unnamed DEA agent transcribed and translated this "jail call," and Agent Tobar testified at trial both that the voice on the recording belonged to Mr. Vasquez-Olea and that the translation was accurate.

The trial took place on June 3, 2010. Two days before the trail, the government provided defense counsel with a transcript of the jail call. The day before trial, the government notified Mr. Vasquez-Olea's attorney that it planned to call Agent Tobar not only to testify about the post-arrest interview, but also about the accuracy of the translation of the jail call. Mr. Vasquez-Olea objected to Agent Tobar's testimony, arguing that notice of Agent Tobar's expert testimony (translating from Spanish to English) was insufficient because it was untimely and did not adequately disclose the content of the expert testimony. Judge Battaglia overruled the objection.

After the government concluded its case, Mr. Vasquez-Olea moved for judgment of acquittal based on Rule 29 of the Federal Rules of Criminal Procedure, arguing that the government had provided insufficient evidence of his alienage. Specifically, he argued that the government had not adequately corroborated his post-arrest, which were the only direct evidence of his alienage. Judge Battaglia denied the motion because the facts surrounding Mr. Vasquez-Olea's arrest corroborated the statements.

Judge Battaglia found Mr. Vasquez-Olea guilty, and this appeal followed.

II. Admissibility of Agent Tobar's Testimony

A. Standard of Review

Like other evidentiary rulings, "a district court's rulings on the admissibility of expert testimony are reviewed for an abuse of discretion." United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). An error of law is an abuse of discretion. United States v. OrtegoAsciano, 376 F.3d 879, 883 (9th Cir. 2004). Adverse verdicts will be reversed for an abuse of discretion only if such error more likely than not affected the verdict. United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004).

B. Discussion

Mr. Vasquez-Olea makes two arguments as to why Agent Tobar's testimony should be excluded. First, Mr. Vasquez-Olea argues that Agent Tobar was testifying as an expert and that he was prejudiced by inadequate notice under Federal Rule of Evidence 702 and Federal Rule of Criminal Procedure 16. The former provides that if "specialized knowledge will assist the trier of fact to understand the evidence . . . a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed. R. Ev. 702. The latter requires the government to give "the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial" if the defendant requests the ...

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