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United States v. Valverde-Rumbo

United States District Court, N.D. California, San Jose Division

September 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
HUGO VALVERDE-RUMBO, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL; TERMINATING DEFENDANT'S MOTION FOR LEAVE TO CONDUCT DISCOVERY; AND DENYING DEFENDANT'S REQUEST FOR LEAVE TO FILE REQUEST FOR JUDICIAL NOTICE [RE: ECF 98, 107, 118]

          BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE.

         Defendant Hugo Valverde-Rumbo, a native and citizen of Mexico, is serving a twenty-four month prison term following his conviction of illegal reentry into the United States in violation of 8 U.S.C. § 1326. His appeal of that conviction is pending in the United States Court of Appeals for the Ninth Circuit.

         Defendant has filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. Because this Court lacks jurisdiction to grant the motion for a new trial in light of the pending appeal, Defendant seeks an indicative ruling under Federal Rule of Criminal Procedure 37, specifically, a statement that the Court would grant a new trial if the case were remanded or that the motion for a new trial raises a substantial issue. Defendant also has filed a motion for leave to conduct discovery, seeking an indicative ruling that the Court would permit further discovery if the case were remanded or that the motion for leave to conduct discovery raises a substantial issue. After briefing was completed and oral argument was heard on the motions, Defendant filed a request for leave to file a request for judicial notice.

         For the reasons discussed below, the motion for a new trial is DENIED, the motion for leave to conduct discovery is TERMINATED, and the request for leave to file a request for judicial notice is DENIED.[1]

         I. BACKGROUND

         Defendant was born in Mexico in October 1984 and he entered the United States without inspection as a young child. Gov't Exh. 2, Norris Decl. ¶ 13 & Exh. 2-4, ECF 109-1. He has a significant history of criminal convictions and immigration proceedings, summarized as follows.

         September 2004 Convictions

         In September 2004, when Defendant was nineteen years old, he sexually assaulted his fifteen-year-old girlfriend. Norris Decl. ¶¶ 4-5 & Exh. 2-1, 2-2. The victim reported to the police that when she told Defendant she wanted to end their relationship, Defendant slapped her, tore her clothes, pushed her down, and forcibly raped her. Supplemental Police Report, ECF 70-1. Defendant was convicted of assault with intent to commit rape in violation of California Penal Code § 220, and unlawful intercourse with a minor more than three years younger in violation of California Penal Code § 261.5(c). Norris Decl. ¶¶ 4-5 & Exh. 2-1, 2-2. He was sentenced to a one-year term of imprisonment and a three-year term of probation, and he was required to register as a convicted sex offender. Id.

         October 2006 Removal

         In February 2006, Defendant's 2004 convictions came to the attention of the Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”). Gov't Exh. 2, Norris Decl. ¶ 6 & Exh. 2-3, ECF 109-1. The matter was referred to ICE's San Jose Domestic Violence/Sexual Offender Unit, which “identifies aliens who are sexual offender registrants within the State of California convicted of aggravated felonies, child sex, sexual deviancy and domestic violence offences [sic].” Norris Decl. ¶ 7 & Exh. 2-4. ICE prepared a Record of Deportable/Inadmissible Alien (Form I-213), stating that Defendant had been convicted of an aggravated felony and was eligible for expedited removal from the United States. Id. ¶¶ 7-8 & Exh. 2-4. On October 4, 2016, ICE served Defendant with a Notice to Appear, which listed Defendant's 2004 convictions and stated that Defendant was subject to removal because he was unlawfully present in the United States and he had been convicted of “acts which constitute the essential elements of a crime involving moral turpitude.” Gov't Exh. 1, Notice to Appear, ECF 109-1. Defendant was provided with and signed a Stipulated Request for Removal Order and Waiver of Hearing. Gov't Exh. 3, Stipulated Request, ECF 109-1. The stipulated request expressly waived Defendant's rights to representation by counsel and a hearing before an Immigration Judge; stated that Defendant did not wish to apply for any relief from removal; agreed to issuance of a written order of removal; and designated Mexico as the country of removal. Id. On October 6, 2006, an Immigration Judge issued a removal order directing that Defendant be removed to Mexico. Norris Decl. ¶ 9 & Exh. 2-5. Defendant was removed on October 12, 2006. Norris Decl. ¶ 11.

         August 2008 Removal

         Defendant was found in the United States again in 2008; he was removed in August 2008 through a reinstatement of the 2006 removal order. Norris Decl. ¶ 11.

         October 2014 Arrest and Subsequent Convictions

         In October 2014, Defendant was the subject of a traffic stop by the San Jose Police Department. Norris Decl. ¶ 13. Defendant gave the officers a false name and false birthdate. Id. He also told investigating officers that he had not registered as a sex offender at his current address in San Jose. Id. Defendant subsequently was charged with and pled guilty to failure to register as a sex offender in violation of California Penal Code § 290(b), and providing false information to a police officer in violation of California Penal Code § 148.9. Joint Stipulations and Waivers for Bench Trial, ECF 64-1.

         December 2014 Indictment Charging Illegal Reentry

         Defendant came to the attention of ICE following his October 2014 arrest. Gov't Exh. 2, Norris Decl. ¶ 14. The United States Attorney's Office commenced the present case by filing a criminal complaint charging Defendant with illegal reentry. Norris Decl. ¶ 14 & Exh. 2-7. On December 10, 2014, a grand jury returned a single-count indictment charging Defendant with illegal reentry in violation of 8 U.S.C. § 1326. Indictment, ECF 4.

         Denial of Defendant's Motion to Dismiss Indictment

         Defendant moved to dismiss the indictment on the ground that his underlying 2006 and 2008 removals were unlawful and thus could not establish the predicate to the offense of illegal reentry. Motion to Dismiss Indictment, ECF 26. Because the 2008 removal was pursuant to reinstatement of the 2006 order, only the validity of the 2006 order was at issue in Defendant's motion. See United States v. Arias-Ordonez, 597 F.3d 972, 982 (9th Cir. 2010) (a valid reinstatement of an invalid removal order is insufficient to support a conviction for illegal reentry).

         Defendant argued that he was deprived of due process in his 2006 immigration proceedings because he did not voluntarily, knowingly, and intentionally waive his rights to representation by counsel and a hearing before an Immigration Judge, and he was not advised of his potential eligibility for pre-conclusion voluntary departure or a U Visa. Motion to Dismiss Indictment, ECF 26. On September 3, 2015, Judge Ronald M. Whyte (ret.), the district judge to whom the case was assigned, issued a written order addressing Defendant's motion to dismiss. September 2015 Order at 4, ECF 39. Judge Whyte stated that resolution of the motion required a determination whether the 2006 removal proceedings were “fundamentally unfair, ” and that in order to make that determination he had to answer two questions: “(1) did defendant voluntarily, knowingly, and intelligently waive his rights in connection with the 2006 removal proceedings, and (2) if he did not, was he prejudiced thereby?” Id. Judge Whyte determined that an evidentiary hearing was necessary to answer those questions. Id. at 7.

         Judge Whyte held an evidentiary hearing on October 5, 2015 and he issued a written order denying Defendant's motion to dismiss the indictment on October 28, 2015. Order Denying Motion to Dismiss, ECF 53. On the issue of Defendant's waiver of his rights in the 2006 removal proceedings, Judge Whyte held that the Government had the burden of proving waiver by clear and convincing evidence and that the Government had not carried its burden. Id. at 4-6. Defendant's motion to dismiss the indictment thus turned on whether Defendant suffered prejudice from the defect in the immigration proceedings. Id. at 6. Judge Whyte held that Defendant had the burden of establishing prejudice resulting from an invalid waiver of his rights. Id. at 4.

         Defendant asserted that he was prejudiced in two ways, first by immigration officials' failure to inform him of his potential eligibility for pre-conclusion voluntary departure and second by their failure to inform him of his potential eligibility for a U Visa. Id. at 6. Judge Whyte concluded that Defendant could not establish prejudice arising from immigration officials' failure to inform him about pre-conclusion voluntary departure because he was ineligible for such relief as a result of his prior convictions of aggravated felonies. Id. As a result, in order to obtain dismissal of the indictment, Defendant had to demonstrate prejudice resulting from immigration officials' failure to inform him of his potential eligibility for a U Visa. Id. at 6-7. For reasons discussed more fully below, Judge Whyte concluded that Defendant had not carried his burden because he had not shown that he had a plausible claim for a U Visa at the time of his 2006 immigration proceedings.[2] Id. at 7. On that basis, Judge Whyte denied Defendant's motion to dismiss the indictment. Id. at 7-8.

         Conviction of Illegal Reentry Following Bench Trial

         Following denial of his motion to dismiss the indictment, Defendant waived his right to a jury trial and the parties agreed to a bench trial before Judge Whyte on stipulated facts. Joint Stipulations and Waivers for Bench Trial, ECF 64-1. Judge Whyte held a bench trial on January 4, 2016 and found Defendant guilty of illegal reentry. Criminal Minutes, ECF 65. On April 11, 2016, Judge Whyte sentenced Defendant to a twenty-four-month term of imprisonment and a three-year term of supervised release. Criminal Minutes, ECF 71. Judgment was entered on April 12, 2016. Defendant currently is serving the term of imprisonment imposed by Judge Whyte; his anticipated release date is September 23, 2017.

         Defendant filed a timely notice of appeal on April 25, 2016, which is pending in the Court of Appeals for the Ninth Circuit. Notice of Appeal, ECF 75. Defendant has requested and obtained several extensions of time to file his opening brief on appeal, which currently is due on October 10, 2017.

         Current Motions

         On April 19, 2017, Defendant filed the present motion for a new trial. Motion for New Trial, ECF 98. Because Judge Whyte has retired, the case was randomly reassigned pursuant to the Court's assignment plan. See Order Directing Clerk to Reassign Case, ECF 99. The case was assigned to the undersigned judge on April 25, 2017. This Court thereafter twice extended the briefing schedule on the motion for a new trial at the request of one or both of the parties. See Orders, ECF 103, 106.

         Prior to completion of briefing on the motion for a new trial, Defendant filed a motion for leave to conduct discovery. Motion for Leave to Conduct Discovery, ECF 107. After completion of briefing, the Court set both motions for hearing on August 1, 2017. Minutes, ECF 117. At the hearing, counsel for Defendant stated that the motion for leave to conduct discovery need not be considered by the Court unless and until the Court of Appeals ...


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