United States District Court, D. Arizona
Honorable Jennifer G. Zipps, United States District Judge
before the Court is Magistrate Judge Ferraro's Report and
Recommendation (R&R) recommending that the District Court
deny Defendant's Motion to Dismiss the Indictment. (Doc.
81.) Defendant has filed an objection to the Magistrate
Judge's legal conclusions and asks that this Court
conduct an independent review of the issue and dismiss the
indictment. (Doc. 84.) After considering the R&R and the
arguments raised in Defendant's objection and original
motion to dismiss, the Court will adopt Judge Ferraro's
reviewing a Magistrate Judge's Report and Recommendation,
this Court “shall make a de novo determination of those
portions of the report . . . to which objection is made,
” and “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
see also Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991) (citing Britt v. Simi Valley Unified
Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
Failure to object to a Magistrate Judge's recommendation
relieves the Court of conducting de novo review of the
Magistrate Judge's factual findings; the Court then may
decide the dispositive motion on the applicable law.
Orand v. United States, 602 F.2d 207, 208 (9th Cir.
1979) (citing Campbell v. United States Dist. Ct.,
501 F.2d 196 (9th Cir. 1974)).
April 20, 2016, Defendant Oscar Lopez-Magallon was charged
with illegal reentry of a removed alien in violation of 8
U.S.C. 1326(a) and (b)(2). (Doc. 1.) A few days later, on
April 25, the court appointed Mark Williman to represent
Defendant. (Doc. 3.) Counsel represented Defendant at a bench
trial on January 10, 2017, and Defendant was found guilty.
(Doc. 32.) On September 27, 2018, however, the Ninth Circuit
reversed Defendant's conviction, holding that the
stipulated admission of his own attorney's testimonial
statements against him and the Government's comments on,
as well as the inferences drawn by the district court from
Defendant's post-Miranda silence, violated his
Sixth Amendment Confrontation Clause rights and Fifth
Amendment right against self-incrimination. United States
v. Lopez-Magallon, 738 Fed.Appx. 577 (9th Cir. 2018);
(Doc. 56.) The Ninth Circuit remanded the case for a new
trial and instructed that a new district court judge be
appointed should Defendant elect to proceed again with a
bench trial, in order to avoid any residual prejudice
stemming from the erroneously admitted evidence in the first
trial. Id. at 578. On March 26, 2019, Defendant,
represented by new counsel, filed a Motion to Dismiss the
Indictment. (Doc. 72.)
argues that this Court should dismiss the indictment against
him with prejudice because Defendant's initial trial
counsel, Mr. Williman, was so ineffective as to now render it
impossible for Defendant to present a viable duress defense.
Defendant argues that under United States v.
Morrison, 449 U.S. 361 (1981), the Court may dismiss an
indictment where a Defendant's Sixth Amendment right to
counsel is violated and “demonstrable prejudice”
results. The Court agrees with Magistrate Judge Ferraro that
regardless of the Court's authority to dismiss the
indictment, Defendant has not sufficiently demonstrated that
he is prejudiced by his counsel's prior ineffectiveness.
relevant facts are discussed in the R&R. In short,
Defendant claims that on April 18, 2016, after completing a
day of melon picking, Daniel Flores and an associate arrived
in an SUV, slammed the butt of a gun into Defendant's
leg, and forced Defendant and his co-worker into the car.
Defendant and his co-worker were transported to the border
along with three other fearful passengers, and upon arriving,
Defendant was beaten and hit with a gun until he agreed to
carry a bag of marijuana across the border for a cartel.
Daniel Flores then led Defendant and four others across the
border until they reached a site where they could hide their
marijuana packs in a brush. Defendant and Flores were
detained shortly thereafter, while the other members of the
argues that he is now prejudiced by counsel's failure to
document his injuries sustained at the hands of Daniel
Flores, counsel's failure to designate Flores as a
material witness or to track down any other members of the
caravan, counsel's failure to preserve his investigative
files, and the errors made that resulted in the Ninth Circuit
reversing Defendant's first conviction.
the injuries Defendant alleges to have sustained, it is
unclear from the record whether counsel was ever even aware
that Defendant was injured. The injuries allegedly occurred
on or around April 18, 2016, and counsel did not visit
Defendant until May 30, 2016-a full month later, when the
injuries might have already healed. Counsel's declaration,
submitted in support of Defendant's Motion to Dismiss,
states only that he “did not document [Defendant's]
injuries, ” but does not acknowledge whether counsel
knew the injuries were there. Defendant likewise does not
state that he informed counsel of his injuries, or state that
there are no other witnesses beyond his counsel who might
have been able to corroborate his injuries.
regard to failing to designate Mr. Flores as a material
witness, it is unclear, without knowing when Mr. Flores was
deported or when Defendant elected to pursue a duress
defense,  whether it would have been possible for
counsel to do so. Moreover, it is unclear whether it would
have been advantageous for counsel to so. Counsel's
declaration states that he “did not attempt to
designate Daniel Flores, or the other members of the caravan,
as material witnesses, ” but says nothing about the
decision making behind this inaction. As the Government
notes, Defendant can only speculate as to what Mr.
Flores's testimony would have been, and more
significantly, Defendant fails to offer an explanation as to
how or why Flores might have chosen to incriminate himself by
corroborating Defendant's statement of the case. With
regards to the other members of the caravan, it is unclear
that any of them were ever apprehended or how, if they were
not, counsel would have gone about identifying and then
locating them. And although unfortunate that counsel can no
longer locate his case files, and inconsistent with best
practices, aside from the unidentified or inaccessible
witnesses already described, Defendant does not explain what
might have been contained in these files that is no longer
accessible. Counsel's declaration provides no further
illumination as to what might have been lost.
as stated by Magistrate Judge Ferraro, the errors made by
counsel in the first bench trial were remedied when the Ninth
Circuit reversed Defendant's first conviction. To the
extent that the Government attempts to introduce evidence
already deemed inadmissible by the Ninth Circuit into this
proceeding, as Defendant has suggested the Government might
do, Defendant will have the opportunity to make an objection.
Defendant has not demonstrated such prejudice as to warrant
the remedy he now seeks. Accordingly, IT IS ORDERED that the