United States District Court, D. Arizona
REPORT & RECOMMENDATION
CHARLES R. PYLE, Magistrate Judge.
Defendant is representing himself with the assistance of advisory counsel. On May 28, 2014, Defendant's Motion to Suppress Evidence Pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure (Doc. 43) came on for hearing, and was continued to June 10, 2014 for the presentation of additional testimony. (Doc. 56). On June 10, 2014, the Court heard additional testimony on Defendant's Motion to Suppress. Also on June 10, 2014, the Court heard oral argument on Defendant's Motion to Dismiss Indictment Pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure (Doc. 51). The Government has filed Responses in opposition to Defendant's Motions. (Docs. 49, 59). At the hearings on Defendant's Motion to Suppress, Customs and Border Protection Officers ("CBPO") Allen Richmond and Allan Millot testified on behalf of the Government. For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's Motions.
At the time Defendant's Motions came on for hearing, Defendant was charged with attempted illegal reentry on or about December 12, 2013 at the port of entry in Nogales, Arizona, in violation of 8 U.S.C. § 1326, enhanced by 8 U.S.C. § 1326(b)(2). (Doc. 9).
MOTION TO SUPPRESS EVIDENCE (Doc. 43)
Defendant seeks to suppress statements he allegedly made when he attempted to enter the United States through the pedestrian entry point at the DeConcini Port of Entry in Nogales, Arizona. Defendant seeks to suppress statements made at the primary inspection point, secondary inspection point, and at the "passport control" area. At the passport control area, Defendant's formal statement was taken. Defendant contends his statements were taken in violation of the McNabb-Mallory rule. See McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957). The Ninth Circuit has described the current state of the McNabb-Mallory rule as follows:
Federal Rule of Criminal Procedure 5(a) requires that an arrested person be presented to a magistrate judge "without unnecessary delay." The McNabb-Mallory rule provides that "an arrested person's confession is inadmissible if given after an unreasonable delay in bringing him before a judge." Corley v. United States, 556 U.S. 303, 129 S.Ct. 1558, 1562, 173 L.Ed.2d 443 (2009). Congress modified the remedy available for violations of Rule 5(a) in 18 U.S.C. § 3501(c) by providing that statements made within six hours after an arrest cannot be excluded solely on the basis of a delay in presentment.
United States v. Valenzuela-Espinoza, 697 F.3d 742, 747 n.2 (9th Cir. 2012). At the May 28, 2014 and June 10, 2014 hearings on Defendant's Motion to suppress, the Government conceded that it will not use in its case-in-chief, statements taken after the six-hour window afforded by 18 U.S.C. § 3501(c). The Government further concedes that it will not use Defendant's formal statement, which was reduced to writing, in its case-in-chief.
CBPO Millot testified regarding his encounter with Defendant at the pedestrian primary inspection area, and CBPO Richmond testified about his interaction with Defendant at the secondary inspection area. The testimony reflects that statements Defendant made at the primary and secondary inspection areas fell well within the six-hour time limit. Nor does the testimony reveal any basis for finding that the statements made to CBPOs Millot and Richardson at primary and secondary were involuntary.
Given the government's concession that it will not use statements taken after six hours and Defendant's formal statement in its case-in-chief, the Court recommends that Defendant's Motion to Suppress be denied. The Court further recommends that Defendant's statements made in the first three hours after his encounter at the Port of Entry, except for the formal statement, may be introduced at trial subject to further objection at trial.
MOTION TO DISMISS INDICTMENT (DOC. 51)
Defendant seeks dismissal of the Indictment arguing that the government cannot show the requisite specific intent for attempted reentry. Defendant maintains that he did not attempt to reenter; rather, he attempted to turn himself over to authorities by reporting he was in violation of his probation. Defendant also claims dismissal is necessary due to unspecified irregularities in the grand jury proceedings. On June 6, 2014, the Court granted Defendant's Motion for Grand Jury Transcript. (Doc. 62).
The Ninth Circuit has held that "the elements of the crime of attempted illegal reentry into the United States under 8 U.S.C. § 1326 are: (1) the defendant had the purpose, i.e., conscious desire, to reenter the United States without the express consent of the Attorney General; (2) the defendant committed an overt act that was a substantial step towards reentering without that consent; (3) the defendant was not a citizen of the United States; (4) the defendant had previously been lawfully denied admission, excluded, deported or removed from the United States; and (5) the Attorney General had not consented to the defendant's attempted reentry." See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (citations omitted). The testimony before the grand jury was that Defendant, who had previously been deported, presented at the DeConcini Port of Entry claiming to be a United States citizen. Defendant contends this is not the case, and that upon presenting at the Port of Entry, he announced that he was in violation of his probation. Regardless of the different factual version of events, the Indictment clearly cites all elements required for charging illegal reentry. Any factual dispute requires resolution by a jury, and not dismissal of the Indictment. As the Ninth Circuit has explained, "[a] defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence.'" United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996) (quoting United States v. Mann, 517 F.2d 259, 267 (5th Cir.1975)). In sum, "[a] motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence.'" Id. (quoting United States v. Marra, 481 F.2d 1196, 1199-1200 (6th Cir. 1973)).
Likewise, although the Ninth Circuit has recognized that "the requirement of specific intent for [attempted reentry]... means that to be found guilty, a defendant must have the specific intent to reenter "free from official restraint[, ]'" United States v. Lombera-Valdovinos, 429 F.3d 927, 929 (9th Cir. 2005), whether the instant Defendant was free from official restraint is a factual matter in dispute that must be resolved at trial. See e.g., Gracidas-Ulibarry, 231 F.3d at 1197 (finding failure to instruct jury on the intent element harmless where defendant, who had been deported the day before, lied about his name and citizenship); see also United States v. Leos-Maldonado, 302 F.3d 1061, (9th Cir. 2002) ("The mere fact that an alien is under official restraint ...