219 F.3d 1056 (9th Cir. 2000), 99-50213, United States v. Ruelas-Arreguin

Docket Nº:99-50213
Citation:219 F.3d 1056
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRES RUELAS-ARREGUIN, Defendant-Appellant.
Case Date:July 19, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1056

219 F.3d 1056 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANDRES RUELAS-ARREGUIN, Defendant-Appellant.

No. 99-50213

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

July 19, 2000

Argued and Submitted March 7, 2000--Pasadena, California

Page 1057

[Copyrighted Material Omitted]

Page 1058

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

David P. Curnow, Assistant U.S. Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding; D.C. No. CR-98-02100-NAJ

Before: J. Clifford Wallace, Harry Pregerson and Sidney R. Thomas, Circuit Judges.

THOMAS, Circuit Judge:

This appeal would seem to present a question from the realm of quantum physics: to what extent does existence depend on observation? Or, in our terms, is venue proper only where an alien is seen and arrested for being "found in" the United States in violation of 8 U.S.C. S 1326, or may he be prosecuted in the district where he illegally entered and traversed unseen? Applying the continuing offense doctrine, we conclude that venue is proper in either district and affirm the conviction. We remand for resentencing, however, because Ruelas-Arreguin was improperly denied an additional onelevel adjustment for acceptance of responsibility.

Page 1059

I

Ruelas-Arreguin is a native and citizen of Mexico who illegally returned to the United States after having been deported. Upon reentry, he was transported through Southern California undetected in the bed of a pickup truck traveling east towards Yuma, Arizona. INS border patrol agent Stephen Johnson was traveling westbound on Interstate 8 from Yuma to El Centro, California when he received a radio dispatch regarding a white pickup truck with a red stripe and camper shell heading eastbound on Interstate 8. Agent Johnson was approximately two miles within California when he received the radio message. He sighted the pickup truck, crossed the median, and began following the vehicle for five or six miles eastbound on Interstate 8 from California into Arizona. At this initial sighting, only the driver was visible.

After the vehicle stopped in the parking lot of a local restaurant in Yuma, Agent Johnson approached the vehicle to question the driver and, at that time, discovered numerous people, including Ruelas-Arreguin, laying on the floor of the truck bed. After he had established their Mexican citizenship, Agent Johnson arrested the occupants of the vehicle and arranged to have them transported to the Yuma border patrol station, where they were each interviewed by INS officials and processed through the IDENT system. When questioned at the Yuma station, Ruelas-Arreguin confirmed that he had been previously convicted for attempted murder. He also signed a sworn affidavit indicating that he was in the United States illegally after having been deported and that he had used a false name.

Thereafter, Ruelas-Arreguin was indicted in the Southern District of California on one count of being a deported alien found in the United States in violation of 8 U.S.C.S 1326. Following the government's case-in-chief, Ruelas-Arreguin presented no case other than a motion for judgment of acquittal under Fed. R. Crim. P. 29 ("Rule 29"). The district court deemed the Rule 29 motion timely but did not entertain it until after closing arguments and the reading of the jury instructions. In that motion, Ruelas-Arreguin argued that venue was improper in the Southern District of California because he was "found" for purposes of S 1326 in Arizona, not California.

The district court rejected the asserted grounds for acquittal but took the venue issue under submission. After the jury returned with a guilty verdict, the district court denied the venue portion of the Rule 29 motion without prejudice and asked for additional briefing by sentencing.

At the sentencing hearing, the district court denied the Rule 29 motion in its entirety without further explanation. The district court also rejected Ruelas-Arreguin's request for an additional one-level downward adjustment for acceptance of responsibility under...

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