U.S. v. Flores

• Citation: 404 F.3d 320
• Decision Date: 16 March 2005
• Docket Number: No. 04-20109.,04-20109.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Giovanni FLORES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

404 F.3d 320

UNITED STATES of America, Plaintiff-Appellant, v. Giovanni FLORES, Defendant-Appellee.

No. 04-20109.

United States Court of Appeals, Fifth Circuit.

March 16, 2005.

COPYRIGHT MATERIAL OMITTED

James Lee Turner, Asst. U.S. Atty. (argued), Stephen Mark McIntyre, Houston, TX, for Plaintiff-Appellant.

Juan Roberto Fuentes (argued), Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

KING, Chief Judge:

The government appeals from the district court's pretrial dismissal of an indictment charging Defendant-Appellee Giovanni Flores with violating 18 U.S.C. § 922(g)(5)(A) by being an alien, illegally or unlawfully in the United States, in possession of a firearm. Because the district court erred in concluding that Flores was not illegally or unlawfully in the United States, we REVERSE and REMAND.

I. BACKGROUND

The facts essential to this appeal are undisputed. Giovanni Flores is a native of El Salvador who illegally entered the United States in January 2001. He was not inspected by immigration officials when he entered, and he secured no authorization of any kind to enter the country. Apparently, his illegal entry and unlawful presence in the United States went undetected. In March 2001, the Attorney General designated El Salvador as a country whose citizens may be eligible for "temporary protected status" ("TPS") under 8 U.S.C. § 1254a.¹ In May 2001, Flores surfaced and applied for TPS.

An alien whose application for TPS is granted is entitled to certain benefits. See 8 U.S.C. § 1254a (2000). Most importantly, the government "shall not remove the [temporarily protected] alien from the United States during the period in which such status is in effect," and it "shall authorize the alien to engage in employment in the United States and provide the alien with an `employment authorized' endorsement or other appropriate work permit."² 8 U.S.C. § 1254a(a)(1).

An alien who applies for TPS and establishes a prima facie case of eligibility is entitled to "temporary treatment benefits" while his TPS application is pending. See 8 U.S.C. § 1254a(a)(4)(B); 8 C.F.R. § 244.10(a). Temporary treatment benefits consist of two of the benefits available to aliens who actually obtain TPS — namely, non-removability and employment authorization. See 8 U.S.C. § 1254a(a)(1) & (4)(B); 8 C.F.R. § 244.10(e).

After applying for TPS in May 2001 and paying the requisite fees, Flores was issued an employment authorization card and a social security card. Thus, he was deemed to have established a prima facie case for eligibility, and accordingly, he was granted temporary treatment benefits. See 8 C.F.R. § 244.10(e) ("Temporary treatment benefits shall be evidenced by the issuance of an employment authorization document."). Thus, although the government had not granted his application for TPS, Flores acquired a temporary stay of removal pending disposition of his application. See id.; see also 8 U.S.C. § 1254a(a)(1)(A) & (4)(B).

In October 2002, while still awaiting the disposition of his May 2001 application, Flores reapplied for TPS. In November 2002, Flores applied for and received an extension of his work permit. Thus, during the relevant times, Flores maintained temporary treatment benefits. Neither the May 2001 nor the October 2002 TPS application had been ruled upon during the time period relevant to his case.

Flores's employment authorization, together with his social security card and Texas identification card, allowed him to obtain a commission as a private security officer from the Texas Commission on Private Security. He was hired by a private security firm, Bayou City Patrol, and worked as a security guard. As part of his job, he carried a loaded firearm.

On June 8, 2003, as part of an ongoing investigation³ of private security firms employing and arming illegal aliens as security guards in Houston, Texas, Flores was arrested for possession of a firearm while being an alien illegally or unlawfully in the country in violation of 18 U.S.C. § 922(g)(5)(A). On July 8, a grand jury returned an indictment charging Flores with a violation of 18 U.S.C. § 922(g)(5)(A). Flores entered a plea of not guilty on July 13, 2003.

On September 22, Flores filed a motion to dismiss the indictment. He argued that because he had applied for TPS and had secured temporary treatment benefits prior to his arrest, he was not an alien illegally or unlawfully in the United States. The district court agreed and dismissed the indictment. The government now appeals.

II. DISCUSSION

A. Dismissal of the Indictment under Rule 12

Initially, the government contends that the district court erred procedurally in dismissing the indictment. We disagree, however, because the district court based its disposition entirely on its resolution of a legal question and the facts are undisputed. Both Flores and the government agree that Flores initially entered the country illegally. Both parties agree that prior to his arrest, Flores applied for TPS and, while his TPS applications were pending, he received an employment authorization card and social security card.⁴ The sole question in this case, therefore, is a question of law: whether Flores's application for TPS and subsequent receipt of temporary treatment benefits cured his illegal entry into the United States for the purposes of § 922(g)(5)(A).⁵

In this circuit, "`[t]he propriety of granting a motion to dismiss an indictment under [Fed. R.Crim. P.] 12 by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.'" United States v. Korn, 557 F.2d 1089, 1090 (5th Cir.1977) (quoting United States v. Miller, 491 F.2d 638, 647 (5th Cir.1974)). "If a question of law is involved, then consideration of the motion is generally proper."⁶ Id. (citing United States v. Jones, 542 F.2d 661, 664 (6th Cir.1976)). Thus, the district court did not err by considering the purely legal question at hand in Flores's pretrial motion. See id.; see also United States v. Matassini, 565 F.2d 1297, 1313-14 (5th Cir.1978) (affirming the district court's dismissal of an indictment based on its pretrial resolution of the defendant's complete legal defense that his pardon removed him from the ambit of the felon-in-possession-of-a-firearm statute).

The government relies on a number of cases from other circuits for the proposition that a district court may not look beyond the face of the indictment and rule on the merits of the charges pretrial. See, e.g., United States v. Salman, 378 F.3d 1266, 1267-68 (11th Cir.2004) (per curiam);⁷ United States v. Jensen, 93 F.3d 667, 669-70 (9th Cir.1996). Regardless of those other courts' conclusions, however, we are bound by our own circuit's precedent and, therefore, find no error in the district court's procedure of resolving a legal question in a pre-trial motion to dismiss the indictment. See, e.g., Korn, 557 F.2d at 1090; Matassini, 565 F.2d at 1313-14; see also Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.1997) (noting that one panel of this circuit may not overturn another panel absent an intervening decision to the contrary by the Supreme Court or this court en banc).

Moreover, we believe that our approach is correct for a number of reasons. First, in contrast to the Eleventh Circuit's conclusion, dismissing an indictment based on the resolution of a legal question in the presence of undisputed facts is authorized by the FEDERAL RULES OF CRIMINAL PROCEDURE. Rule 12(b)(2) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R.Crim. P. 12(b)(2). Because a question of law presented in a case involving undisputed facts can be determined without a trial of the general issue, Rule 12 authorized the district court to rule on Flores's motion to dismiss in this instance. This conclusion is supported by the Supreme Court's opinion in United States v. Covington, 395 U.S. 57, 60-61, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969). In Covington, the defendant filed a pretrial motion to dismiss the indictment on the ground that he had a complete defense in that his Fifth Amendment privilege against incrimination had been violated. The district court granted the motion and dismissed the indictment. The government appealed to the Supreme Court, which rejected the government's contention that the dismissal was improper and affirmed the district court. The Court found that the district court properly ruled on the pretrial motion because it involved an issue of law and not a factual dispute. The Court noted that under Fed.R.Crim.P. 12, a defense is "capable of determination without the trial of the general issue . . . if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." Covington, 395 U.S. at 60, 89 S.Ct. 1559. Finally, our approach avoids the waste of judicial resources that results from "legally meritless cases being sent to trial."⁸ Salman, 378 F.3d at 1269 (recognizing the disadvantages of prohibiting a district court from making pretrial legal determinations on undisputed facts). Accordingly, the district court did not procedurally err.

B. Flores's Legal Status

The government also argues that the district court erred on the merits because it granted Flores's motion to dismiss the indictment after concluding that Flores was not "illegally or unlawfully in the United States" and thus not in violation of § 922(g)(5)(A). The government claims that Flores's application for TPS and receipt of temporary treatment benefits did not alter Flores's status as an illegal alien for the purposes of § 922(g)(5)(A) and that he was therefore subject to prosecution for possessing a firearm. We agree with the...