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United States v. Lopez-Reyes

United States District Court, D. Arizona

June 26, 2019

United States of America, Plaintiff,
v.
Francisco Lopez-Reyes, Defendant.

          ORDER

          Dominic W. Lanza United Slates District Judge

         Defendant Francisco Lopez-Reyes (“Lopez-Reyes”) is charged with one count of Reentry of Removed Alien, in violation of 8 U.S.C. § 1326. (Doc. 8.) Lopez-Reyes has now filed a motion under 8 U.S.C. § 1326(d) to dismiss the Indictment (Doc. 17), the government has filed an opposition (Doc. 22), and Lopez-Reyes has filed a reply (Doc. 25). As explained below, the motion will be denied.

         FINDINGS OF FACT

         A. Background Facts

         In September 1988, Lopez-Reyes was born in Mexico. (Doc. 17 at 4.) In or around 1992, when Lopez-Reyes was four years old, he was brought to the United States by his mother. He eventually attended elementary school, middle school, and high school in Arizona despite lacking legal status in the United States. (Doc. 17 at 4; Doc. 17-5 ¶¶ 1-8.)

         B. The August 2007 Stabbing Incident

         On August 11, 2007, during the summer between his junior and senior years of high school, Lopez-Reyes was in a park in Maryvale, Arizona when a knife fight broke out. (Doc. 17 at 4-5.) As Lopez-Reyes was attempting to walk away, he was stabbed twice in the back. (Id.) This attack caused Lopez-Reyes to sustain serious injuries requiring hospitalization. (Id.)

         Shortly after the incident, members of the Phoenix Police Department (“PPD”) conducted an interview of “Ernie, ” another person who'd been victimized during the attack. (Doc. 17-3 at 10.) Ernie described the assailant “as approximately 5'8 to 5'10, 18 to 20, with spiky hair” and “said he could probably ID this Hispanic male again if he saw him.” (Id.)

         PPD detectives also interviewed another witness. She initially “said that she could identify the Hispanic male that had the knife and will testify.” (Doc. 17-3 at 11-12.) Later, she identified the assailant by name: “She said his name was Craig, but he went by C.J. She said that she had gone to Tolleson High School with him, and also worked with him [at a pizza parlor].” (Id. at 22-23.) She also told the police where they could find the assailant and provided his cell phone number: “She stated that she didn't know his full name, but knew the apartments where he lived . . . . She checked her phone and found his number.” (Id. at 24.)

         Lopez-Reyes was also interviewed as part of the PPD investigation. (Doc. 17-3 at 27-30.) He initially told the police that “he did not know the individual who had stabbed him.” (Id. at 28.) Following the interview, the PPD detective realized this was a lie: “After I had initially interviewed [Lopez-Reyes], I compared my interviews [to] the interviews that other investigators involved in this incident had conducted. I then learned that the females who had been in the vehicle with [Lopez-Reyes] had indicated that the person who stabbed [Lopez-Reyes] was known to them and possibly [Lopez-Reyes] as well.” (Id. at 29.) Accordingly, the PPD detective went back to Lopez-Reyes's hospital room to re-interview him. During this follow-up session, Lopez-Reyes acknowledged “that it was a person who he knew from Tolleson High School as ‘CJ'” but “did not tell [the PPD detective] why he had initially lied . . . about knowing who had stabbed him.” (Id.)[1]

         The knife-wielding assailant was apparently never prosecuted[2] and Lopez-Reyes never provided any further assistance to the police. In a report dated October 25, 2007, a PPD detective noted that “I had not heard from [one particular victim] or any of the other victim or witnesses in this case. Several phone messages have been left for them. It appears as [though] the victim and witnesses may not cooperate with the prosecution of this case.” (Doc. 17-3 at 55.)

         Lopez-Reyes has never applied for a U-Visa based on this incident and never attempted to obtain certification from the PPD concerning his assistance. (Doc. 17 at 12.)

         C. The Armed Robbery Conviction

         During October and November 2010, Lopez-Reyes committed a series of robberies of cellular phone stores. (Doc. 17 at 6.) During these ...


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