U.S. v. Bahena-Cardenas

• Decision Date: 13 June 2005
• Docket Number: No. 03-50479.,03-50479.
• Citation: 411 F.3d 1067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Esteban BAHENA-CARDENAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.3d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Esteban BAHENA-CARDENAS, Defendant-Appellant.

No. 03-50479.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2004.

Filed June 13, 2005.

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Michael Edmund Burke, San Diego, CA, for the defendant-appellant.

Anne Kristina Perry, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding, D.C. No. CR-02-00300-BTM.

Before REINHARDT, HALL, and WARDLAW, Circuit Judges.

HALL, Senior Circuit Judge.

Esteban Bahena-Cardenas was convicted by a jury of entering the United States without permission of the Attorney General after being excluded, deported, or removed from the United States, in violation of 8 U.S.C. § 1326. We affirm.

BACKGROUND

Bahena-Cardenas first came to the attention of the immigration service following his and his brother's arrest and conviction for possessing heroin with intent to sell. After serving his sentence for the drug crime, he and his brother were ordered deported following a joint hearing in front of an immigration judge ("IJ") at which they were represented by counsel. Bahena-Cardenas was not able to attend the first day of the hearing because he was in a coma caused by a car accident. The IJ denied his lawyer's request that his case be severed from his brother's so that the hearing would not take place in his absence. During this first day, the government presented the testimony of the undercover Drug Enforcement Agency ("DEA") agent who arrested Bahena-Cardenas and his brother. After Bahena-Cardenas recovered and was present, the agent was recalled and fully cross-examined. The IJ determined that Bahena-Cardenas was not a United States citizen and ordered him deported.

In 2000, a San Diego County employee discovered BahenaCardenas in San Diego. He was subsequently charged with entering the United States without receiving permission from the Attorney General after being deported under 18 U.S.C. § 1326. He was tried in front of a jury and convicted on June 5, 2003. Three major issues arose at trial, namely, whether Bahena-Cardenas was an American citizen, whether an expert witness should have been allowed to testify about delayed birth certificates in Mexico, and whether there was sufficient evidence that Bahena-Cardenas physically left the country after being deported and later voluntarily reentered. On appeal, Bahena-Cardenas also raised due process claims concerning his deportation hearing and contends that his sentence was in error.

The jury was instructed to decide the following elements beyond a reasonable doubt: (1) whether the defendant was not a citizen of the United States; (2) whether the defendant had previously been deported and actually removed from the United States to Mexico; (3) whether the defendant voluntarily reentered and remained in the United States without the Attorney General consenting to a reapplication by the defendant for admission into the United States; and (4) whether the defendant was found in the southern district of California.

With regard to Bahena-Cardenas' alienage, the prosecution had to prove beyond a reasonable doubt that Bahena-Cardenas was not a United States citizen. Bahena-Cardenas argued that he was born in San Diego and was therefore a United States citizen. Both sides introduced as evidence a number of documents compiled in Bahena-Cardenas' immigration record or "A file." The government's evidence included a Mexican birth certificate that was created when Bahena-Cardenas was 13, several school records from American schools listing Mexico as his place of birth, and a certificate of baptism issued in 1985 listing his birthplace as Mexico. As evidence of being born in the United States, Bahena-Cardenas introduced two additional certificates of baptism (signed by different pastors) from 1988 and 1989 that showed his birth place as San Diego, a Mexican tourist visa, typically issued to American citizens for travel in Mexico issued to Bahena-Cardenas, a hospital admission record indicating a California birthplace, and a 1988 birth registration showing that Bahena-Cardenas was born at home in San Diego. The defense also submitted as evidence of United States citizenship a voter registration card and social security records. Bahena-Cardenas also introduced a student eligibility report for the year 1982-83 that listed his citizenship as American.

Both sides also elicited witnesses testimony. A prosecution witness testified that non-citizens can procure voter registration cards and social security records because no evidence of citizenship is required. A defense witness testified that she was a teenager when Bahena-Cardenas was born and was with Bahena-Cardenas' mother at her San Diego home when she began feeling labor pains. The witness testified that she went to get her mother while a friend got another adult, Flavio Canio, who arrived to help deliver the baby. The witness was not allowed inside the house but remained on the porch while, Mrs. Bahena-Cardenas gave birth. Two or three days later, the witness went into the house and saw the baby Esteban. However, the witness was not able to remember the date of Esteban's birth.

Bahena-Cardenas' mother testified that Esteban was born at home in San Diego. She said that the only people in the room with her when Esteban was born were her husband and a friend, Flavio Canio. She testified that the family did not get an American birth certificate for Esteban when he was younger because "my husband was negligent, he didn't let me do anything.... Then, afterwards, when the child grew, that is when I told my husband, let's take care of the certificate for the child." She was not aware of anyone getting Esteban a Mexican birth certificate. On cross-examination, the prosecutor impeached her with testimony from the deportation proceeding in which she had testified that her husband and sister-in-law, not Flavio Canio, were present at the birth. She also admitted that she could not remember Esteban's date of birth. She was not able to explain why Esteban's school records listed Mexico as his place of birth. Nor could she explain why she waited until her younger son became a United States citizen to adjust her status, rather than adjusting when Esteban turned 18, as would have been allowed had Esteban been a United States citizen.

The defense sought to present an expert witness to explain the phenomenon of delayed birth certificates in Mexico. The expert witness, a sociology professor, had done research into families living along the border of Mexico and the United States and was prepared to testify that according to a small study she directed of such families, around ten percent of them lied to get Mexican birth certificates. The judge excluded this testimony because, he ruled, there was an insufficient foundation to suggest that the study's results were relevant to the issue of Bahena-Cardenas' birth certificate, which was procured in a different state. Nor could the expert witness testify as to whether there was an amnesty program in place at the time that allowed families to register births without paying a fee, although she was allowed to testify to the general existence of such amnesty programs. The judge also allowed the expert to testify that having a Mexican birth certificate is required to enroll in public schools and to receive free health care in Mexico.

The second element the prosecution was required to prove was whether Bahena-Cardenas actually left the United States following his deportation order. The government produced a warrant of deportation, signed by a deportation officer who attested to watching Bahena-Cardenas walk across the border. That agent did not testify at trial. Instead, another agent testified that the normal practice is for deportation officers to sign the warrant of deportation when they see the alien leave the United States.

The jury was instructed to find Bahena-Cardenas guilty only if the government had proven all the necessary elements beyond a reasonable doubt. The jury returned a verdict of guilty. When the jury foreperson attempted to read the verdict in open court, he had difficulty, and the juror sitting next to him read it instead.

At sentencing, the judge denied all of the defense attorney's requests for downward adjustments, including that for accepting responsibility. The judge increased the sentence because of Bahena-Cardenas' prior convictions. The judge ruled that although he had discretion not to increase Bahena-Cardenas' criminal history score because the conviction for heroin trafficking was 20 years old, he declined to do so. He said he was influenced at least in part by the fact that Bahena-Cardenas had a more recent conviction for transportation of methamphetamine.

DISCUSSION

I. Constitutionality of 8 U.S.C. § 1326

Bahena-Cardenas argues that 8 U.S.C. § 1326 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because an administrative adjudication — a prior deportation — is an element of the offense. He argues that because a deportation hearing is held without the same procedural protections and with a lower standard of proof than criminal proceedings, such a hearing cannot be one of the elements of a criminal offense.

Section 1326 does not violate the rule of Apprendi, which requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. Under § 1326 the government must prove that an alien was "denied admission, excluded, deported, or removed from the United States" and "thereafter ... enters, attempts to enter, or is at any time found in, the United States."...