U.S. v. Soriano-Jarquin

• Decision Date: 11 July 2007
• Docket Number: No. 05-4962.,05-4962.
• Citation: 492 F.3d 495
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco SORIANO-JARQUIN, a/k/a Raul Jarquin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

492 F.3d 495

UNITED STATES of America, Plaintiff-Appellee, v. Francisco SORIANO-JARQUIN, a/k/a Raul Jarquin, Defendant-Appellant.

No. 05-4962.

United States Court of Appeals, Fourth Circuit.

Argued: March 16, 2007.

Decided: July 11, 2007.

ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant. Marla Brooke Tusk, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Chuck Rosenberg, United

States Attorney, Stephanie Bibighaus Hammerstrom, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON and TRAXLER, Circuit Judges, and WILKINS, Senior Circuit Judge.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge TRAXLER and Senior Judge WILKINS joined.

OPINION

WILKINSON, Circuit Judge:

Francisco Soriano-Jarquin challenges his conviction for re-entering the United States after deportation in violation of 8 U.S.C. § 1326(a) (2000). The defendant claims that a Virginia State Police officer violated his Fourth Amendment rights by requesting identification from him while he was a passenger in a lawfully stopped vehicle. He also claims that his Fourth and Fifth Amendment rights were violated when the government produced another man, rather than the defendant, at his preliminary hearing, and that his re-indictment after dismissal of his first indictment for clerical error violated his Sixth Amendment right to a speedy trial. Finally, he contends that Department of Homeland Security regulations governing the testimony of agency employees interfered with his attempt to call an immigration agent as a defense witness, in violation of his Sixth Amendment rights to confrontation of witnesses and compulsory process. For reasons that follow, we affirm the judgment of the district court.

I.

On the night of April 12, 2005, a Virginia State Police officer, accompanied by two police trainees, stopped a van with a defective headlight on Interstate 95 in Spotsylvania County, Virginia. Trooper Rodney Ward approached the vehicle and discovered that it also had a cracked windshield and contained an unrestrained infant. In addition to the driver and the front passenger, there were eleven people in the van, including the defendant, Francisco Soriano-Jarquin.

While a police trainee processed the identification of the driver and prepared citations for the broken headlight, cracked windshield, and unrestrained infant, Ward asked the passengers for identification. Although asking for passenger identification is not a requirement of Virginia State Police procedure, Ward asserted that he personally did so as a matter of routine at every traffic stop. When it appeared that the passengers did not understand English, Ward produced his own ID and pointed to it, to communicate that he wished to see their identification. The passengers shook their heads, indicating that they did not have identification. Ward observed that the passengers appeared to be nervous.

After returning to his vehicle, Ward stated to the police trainee that he was concerned that the passengers might be illegal aliens. At this the driver of the van, who spoke some English, smiled and nodded. When Ward asked him to confirm that his passengers were illegal, he again smiled and nodded. Ward then contacted U.S. Immigration and Customs Enforcement ("ICE"). ICE advised him to take the van off the interstate at the nearest exit and await the arrival of ICE agents.

An ICE agent arrived and spoke to Ward about what he had observed. When the agent interviewed the driver in Spanish, the driver maintained that he did not know anything about the immigration status of the passengers. The agent then spoke to the passenger in the front passenger seat, who stated that he was a second driver of the van and that he and the other driver worked for a transportation company that had paid them to transport the passengers. He stated that he himself and all of the passengers in the back of the van were illegal aliens.

An ICE agent then spoke to the other passengers in Spanish, asking for name and immigration status. The passengers all stated that they were from Mexico and were in the United States illegally. The passengers remained in the van until other ICE agents arrived, at which point they were handcuffed and transported to an ICE facility in Merrifield, Virginia, for processing. When the defendant's fingerprints were entered into the ICE Automated Fingerprint Identification System, it showed that he had been deported from Arizona the month before. ICE held the defendant and other passengers in administrative custody.

ICE agents interviewed the defendant on April 13, 2005, and on April 28, 2005. Before each interview, an ICE agent read the defendant Miranda warnings in Spanish, and the defendant indicated that he understood and waived his rights. In each interview, the defendant made a sworn statement that he had previously been deported and did not have permission to reenter the United States.

On May 13, 2005, the defendant was arrested for unlawful re-entry after deportation, in violation of 8 U.S.C. § 1326(a). At a preliminary hearing before a magistrate judge on May 17, 2005, the government mistakenly produced an individual named Francisco Almaraz Soriano, rather than the defendant, Francisco Soriano-Jarquin. At the time, no one alerted the court to the error. On the stand, ICE Special Agent Jason Fulton identified the individual present as Francisco Soriano-Jarquin, though upon cross-examination Fulton stated that he could not be sure the individual was Soriano-Jarquin. The judge found probable cause to hold Soriano-Jarquin.

On June 9, 2005, a grand jury indicted Soriano-Jarquin on one count of unlawful re-entry after deportation. On June 20, 2005, in a hearing in district court before the Honorable T.S. Ellis, III, counsel stated that the copy of the indictment sent to him referred to the defendant, Francisco Soriano-Jarquin, in the caption but referred to another individual, "Roberto Perez-Lopez," in the body of the indictment. Judge Ellis requested the copy of the indictment from the court's safe and found it to contain the same error.

The government later asserted that the error had originated in the U.S. Attorney's Office. A member of that office caught and corrected the error on the copy of the indictment that went to the grand jury, but failed to do so on the other copies. At the time of the June 20 hearing, the government had no explanation for the discrepancy and moved to dismiss the indictment without prejudice. Judge Ellis did so on June 23, 2005, and on the same day the grand jury returned a second indictment.

The defendant was arraigned before the Honorable James C. Cacheris on July 8, 2005, and on August 10, 2005, the parties appeared before Judge Cacheris on the defendant's motion to dismiss for lack of a speedy trial and to suppress evidence.

The defendant argued that, because his second indictment was returned more than thirty days after his May 13 arrest, dismissal was required under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. The court rejected this contention, stating that the Speedy Trial Act required dismissal only where "no indictment or information is filed" within the requisite period, while in this case the first indictment was filed within the thirty days and dismissed without prejudice. Id. § 3162(a)(1) (emphasis added).

The defendant also moved to suppress all evidence obtained as a result of Trooper Ward's demand for the passengers' identification, because it violated the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court held that it did not violate the Fourth Amendment for an officer to ask passengers for identification where, as here, he did so for safety purposes and the questioning of the passengers did not prolong the stop. The court also rejected the defendant's equal protection claim.

On the scheduled trial date, August 22, 2005, defense counsel moved for a continuance. Defense counsel informed the government and the court for the first time that another individual, and not the defendant, had been present at the preliminary hearing. The defendant stated that he did not wish to receive a new preliminary hearing. Nevertheless, the defendant moved to dismiss on the ground that the denial of a preliminary hearing violated his Fourth and Fifth Amendment rights. This motion was subsequently denied by the court. Defense counsel also expressed an intention to call both Francisco Almaraz Soriano and ICE Special Agent Jason Fulton as witnesses in support of a misidentification theory of defense. Defense counsel asked for a continuance because he had as yet been unable to secure Francisco Almaraz Soriano. The court continued the trial until September 13, 2005.

Also on August 22, 2005, at the government's behest, the court ordered defense counsel to comply with the Department of Homeland Security ("DHS") Touhy regulations in calling ICE Special Agent Jason Fulton as a witness. Those regulations provide procedures for subpoenaing DHS employees and prohibit employees from testifying about information obtained on the job absent departmental authorization. See 6 C.F.R. §§ 5.41-.49 (2006). On September 7, 2005, however, the defense attempted to serve the government with a subpoena for Fulton that was not in compliance with the regulations. The government declined service, and defense counsel made no further attempts to secure Fulton as a witness. At trial, the district court excluded Fulton as a witness due to the defense's failure to comply with the Touhy regulations.

A jury trial occurred on September 13, 2005, and the jury returned a verdict of guilty on the single count of unlawful reentry after deportation, 8 U.S.C. § 1326(a). The defendant was sentenced to time served.

The defendant appeals his conviction on various grounds.

II.

Soriano-Jarquin argues first that the Fourth...