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United States of America v. Daniel Arthur Clevenger

December 1, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


On November 14, 2011, the Court heard oral argument on the parties' motions in limine. At that time, the Court indicated that it would issue a written order regarding Government's motion to admit statements about smuggling arrangements. [See Doc. No. 35.] Having considered the parties' arguments and their supplemental briefing, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the Government's motion.


I. Factual background

On July 25, 2011, at approximately 3:10 p.m., off-duty Supervisory Border Patrol Agent Kenneth Farish, Sr. was driving behind a red Ford Explorer when he observed it come to an abrupt halt in the middle of State Route 94 in Potrero, California, before pulling over to the shoulder of the road. While the Explorer was on the side of the road, Farish heard its horn honk and then observed three men run from the brush on the roadside and enter the Explorer.

Suspecting the Explorer had picked up undocumented aliens, Farish notified the Campo Border Patrol Station to report the incident. Shortly thereafter, a call went out to patrol agents notifying them of a red Explorer possibly transporting undocumented aliens. Two Border Patrol Agents, Jeff Seldon and Christopher Gallegos, received this call, came into contact with the red Explorer driven by Clevenger, and initiated a traffic stop just before the Explorer entered the cone pattern for the Border Patrol Checkpoint on Route 94. A third agent, Supervisory Agent Leo Robinson, joined Seldon and Gallegos and assisted with the traffic stop.

Clevenger, a United States citizen, and his three passengers-Diego Andres Cardenas-A La Torre, Jose Luis Hernandez-Victoriano, and Victor Manuel Raya-Vaca, all of whom admitted to being Mexican citizens without legal permission to enter or remain in the United States-were arrested and brought to the Brown Field Station. The arrest occurred at approximately 3:45 p.m.

At the station, a record check revealed a criminal history for Clevenger. A record check also revealed a history for Raya-Vaca, indicating that he had been previously apprehended illegally entering the United States and was identified as a "foot guide" on at least three prior occasions.

At approximately 12:30 a.m. the following day, Clevenger was Mirandized and provided a recorded sworn statement. According to Clevenger, he saw the three men on the side of the road, thought they were hitchhiking, and stopped to give them a ride. The man who talked to him spoke perfect English. No arrangements were made to pay Clevenger for the ride.

Agents interviewed the three other men arrested with Clevenger. Hernandez and Cardenas gave somewhat inconsistent statements, which are discussed in more detail below. Neither could identify any of the individuals with whom they spoke in a photo lineup. Raya-Vaca asserted his Fifth Amendment rights and did not give a statement. He was promptly removed to Mexico.

II. Material witnesses' statements and depositions

A. Jose Luis Hernandez-Victoriano

Shortly after his arrest on July 25, 2011, at approximately 6:29 p.m., Hernandez provided a video-recorded statement at the Brown Field Station. He admitted that he is a Mexican citizen and that he did not possess immigration documents allowing him to be in the United States.

Hernandez stated he went to Tecate, Mexico, on July 24, 2011, and a foot guide offered to take him to Los Angeles for $5,000. Hernandez jumped the fence east of the Tecate Port of Entry to enter the United States and walked through the mountains for approximately ten hours. The foot guide left to make a telephone call and never returned. Hernandez told the rest of the group they should try to wave down a vehicle and hitch a ride. Shortly thereafter, he waived down a red vehicle and told the driver as best he could in English that he had a sick mother. The driver apparently felt sympathetic and decided to give Hernandez and the rest of the group a ride.

Hernandez's statement concluded at 7:00 p.m., and he was returned to his holding cell. Shortly thereafter, he began knocking on the door to get someone's attention. When an agent opened the door, Hernandez allegedly stated he wanted to provide the truth and additional evidence about the smuggling event.

Hernandez was re-interviewed at 7:29 p.m. He stated that his previous story was true, except for how they came into contact with the red vehicle. While walking, Hernandez noticed the foot guide speaking casually to another person in the group-"El Guero," a slender man with a light skin tone and green eyes. The two discussed the route the group would take to get picked up. Hernandez believed El Guero made a telephone call once the group was at a safe location. El Guero left for an hour and went to a high point. He came back running quickly, and Hernandez saw a red vehicle approaching. The vehicle came to a sudden halt, and El Guero ...

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