The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Defendant Jorge Landin Acevedo is charged with being a deported alien "found in" the United States without permission in violation of 8 U.S.C. § 1326. Pending before the Court are the Defendant's motion to dismiss the indictment and an additional brief filed in conjunction with the Defendant's motion to dismiss pursuant to Anders v. California, 386 U.S. 738 (1967). (Docs. 23 and 36, respectively.) For the reasons set forth herein, the Defendant's motion to dismiss the indictment (Docs. 23 and 36) is DENIED.
The Defendant was admitted to the United States as a legal resident on September 17, 1993. (Doc. 36, Ex. B ("Transcript of [April 21, 2005] Deportation Hearing of Jorge Landin Acevedo") at 6:11-13.) On June 2, 2004, the Defendant was convicted in the Superior Court of California, Riverside County, on one count of committing a criminal threat in violation of California Penal Code § 422 and one count of wilful infliction of corporal injury on a spouse/cohabitant in violation of California Penal Code § 273.5. (Doc. 28, Ex. 1 ("Abstract of Judgment").) The Defendant was sentenced to two years on each count, with the sentences to run concurrently. (Id.) Ultimately, the Defendant served 13 months on his two 2004 convictions. (Doc. 36, Ex. B at 7:9.)
Following his release from prison, the Defendant appeared before an immigration judge ("IJ") for a scheduled deportation hearing on April 21, 2005. At that hearing, the IJ explained that as a result of the Defendant's aggravated felony convictions, the Defendant was ineligible for either cancellation of removal (id. at 8:10-14) or voluntary departure (id. at 9:5-6). The IJ entered a deportation order against the Defendant, and the Defendant was physically removed from the United States to Mexico that same day. (Doc. 28, Ex. 4 ("Warrant of Removal/Deportation").) Most recently, the deportation order against the Defendant was reinstated on March 23, 2011. (Doc. 28, Ex. 8.)
The present charges arise out of Defendant's apprehension and arrest on May 11, 2011, in the vicinity of Barrett Junction, California, approximately five miles west of the Tecate, California Port of Entry and approximately three miles north of the United States-Mexico international boundary.
On July 7, 2011, a federal grand jury in the Southern District of California returned a one-count indictment against the Defendant charging him as "an alien, who previously had been excluded, deported and removed from the United States to Mexico, [and who] was found in the United States, without the Attorney General of the United States or his designated successor . . . having expressly consented to [his] reapplication for admission into the United States, in violation of [8 U.S.C. § 1326(a) and (b)]." (Doc. 1 at 1.)
On March 1, 2012, the Defendant filed a motion to dismiss the indictment on the grounds that (a) the five-day period between the Defendant's arrest and his appearance before a magistrate judge violated Rule 5 of the Federal Rules of Criminal Procedure; (b) the conditions of his pretrial confinement constitute punishment prior to adjudication of guilt in violation of the Due Process Clause of the Fifth Amendment; (c) the instructions provided to a Federal Grand Jury in January 2010 improperly influenced the outcome of the Grand Jury's deliberations; (d) the Indictment fails to allege that the Defendant voluntarily entered the United States prior to arrest; and (e) the underlying deportation proceedings violated the Defendant's due process rights, resulting in prejudice.
At a hearing on April 6, 2012, the Court rejected the Defendant's first three arguments (pre-arraignment delay in violation of Rule 5, pre-trial detention in violation of the Fifth Amendment, and improper grand jury instructions), and denied the motion to dismiss on those grounds. (See Doc. 33 (Minute Entry).)
This order addresses the motions to dismiss on the grounds that the Indictment failed to allege voluntary entry, that the underlying deportation proceedings violated due process, and that the Defendant received legal permanent resident ("LPR") status in 2009. The Court addresses each in turn.
a. No allegation of voluntary re-entry in Indictment
The Defendant claims that the Indictment "fails to state an offense under 8 U.S.C. § 1326" because "it fails to allege that Mr. Acevedo voluntarily entered into the United States." (Doc. 23 at 10.) This argument is foreclosed by United States v. Rivera-Sillas, 417 F.3d 1014 (9th Cir. 2005), in which the Ninth Circuit held:
The Government does not need to charge or prove voluntary entry in a § 1326 "found in" offense; indeed we have definitively said that "[v]oluntary entry need not be expressly pled in an indictment for a violation of 8 U.S.C. § 1326." [United States v. San Juan-Cruz, 314 F.3d 384, 390 (9th Cir.2002).] As we stated in United States v. Parga-Rosas, [238 F.3d 1209, 1213 (9th Cir. 2001),] "[a]lleging that the defendant is a deported alien subsequently found in the United States without permission suffices" for a § 1326 "found in" indictment. 417 F.3d at 1018-19. The Indictment in the present case alleges in clear terms that the defendant (a) is a deported alien (b) who subsequently was found in the United States (c) ...