United States District Court, N.D. California, San Jose Division
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,
LABSON FREEMAN, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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, 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
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.
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.
2014 Arrest and Subsequent Convictions
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.
2014 Indictment Charging Illegal Reentry
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.
of Defendant's Motion to Dismiss Indictment
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).
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.
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.
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. Id. at 7. On that basis,
Judge Whyte denied Defendant's motion to dismiss the
indictment. Id. at 7-8.
of Illegal Reentry Following Bench Trial
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.
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.
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.
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 ...