Arriaga-Ramirez v. United States

• Decision Date: 23 December 1963
• Docket Number: No. 7429-7430.,7429-7430.
• Citation: 325 F.2d 857
• Parties: Fermin ARRIAGA-RAMIREZ, Appellant, v. UNITED STATES of America, Appellee (two cases).
• Court: U.S. Court of Appeals — Tenth Circuit

325 F.2d 857 (1963)

Fermin ARRIAGA-RAMIREZ, Appellant, v. UNITED STATES of America, Appellee (two cases).

Nos. 7429-7430.

United States Court of Appeals Tenth Circuit.

December 23, 1963.

John E. Patterson, Jr., Oklahoma City, Okl., for appellant.

Arthur L. Fine, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee.

Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.

SETH, Circuit Judge.

Appellant was charged and convicted in two cases for unlawfully reentering the United States after being deported, in violation of Section 276 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1326. In case No. 7429, appellant was charged by indictment in the United States District Court for the District of Colorado, stating that he, an alien, was arrested and deported from the United States on July 20, 1950; that he reentered the United States and was found in Denver, Colorado, on December 6, 1960. It further charged that he had not secured the necessary permission from the Attorney General to apply for readmission into the United States. This indictment was filed in 1961, but before time for trial appellant voluntarily departed to Mexico. This departure on June 25, 1961, was considered to be a voluntary deportation, and in case No. 7430, information was filed against appellant, charging that he, an alien, had been deported on June 25, 1961 (when he voluntarily left the country), and that he was found in Denver, Colorado, on February 2, 1963, again without having secured permission of the Attorney General to apply for readmission. The two cases were consolidated for trial, and appellant was found guilty by the jury in both actions. Motion for new trial was denied and appellant has taken this appeal.

In case No. 7429, to prove appellant's deportation in 1950, the Government offered an official Warrant of Deportation which directed that an officer of the Immigration and Naturalization Service take into custody one Fermin Arriaga-Ramirez and deport him. On the reverse side of the Warrant over the signature of W. C. Henry appears a statement that he executed the Warrant by deporting Fermin Arriaga-Ramirez at Laredo, Texas, on July 20, 1950. At the trial this Mr. Henry testified that he was then serving as an officer at Laredo, was engaged in giving hearings to and deporting aliens to Mexico, and that his signature appeared on the deportation order indicating that he personally deported this alien across the border. He also testified that it was the practice at Laredo at that time, when a person was being deported, to refer to a Closing Report which accompanied the Warrant. This Report bore the descriptive data on the deportee, and the officer would check the personal description and photograph against the individual being deported. The Warrant and Closing Report for Fermin Arriaga-Ramirez were admitted in evidence. The Report bears the same name and file number as the Warrant, and has attached to it a photograph which the court concluded had a prima facie resemblance to the defendant so that the jury could compare it with the defendant in court. The Report also contains a general description of the individual including a statement that Fermin Arriaga-Ramirez had a certain tattoo on his left wrist. A witness for the Government testified the appellant had such a tattoo.

In case No. 7430, to show the voluntary departure of June 25, 1961, the Government introduced a Warrant of Deportation and the decision of a hearing examiner ordering deportation (appellant identified this as an application for voluntary deportation). The officer testified that the final order in the deportation hearing was for deportation to Mexico, and testified that appellant later admitted during an interview that he had deported himself about June 25, 1961. This witness knew and identified appellant. The Government contends that this admission was corroborated by letters written by appellant which were in evidence. The testimony showed that appellant was again found in Denver in February 1963.

On this appeal two related points are urged by appellant in both cases. The first point is that the United States failed to prove by competent evidence that appellant had been arrested and deported prior to the alleged illegal reentries of April 15, 1959, and February 2, 1963. The second point is that there is a lack of competent evidence to identify appellant as the person purportedly deported on July 20, 1950, and June 25, 1961. As indicated, the trial court denied motions for new trial and had previously denied motions for acquittal on essentially the same grounds as are urged on this appeal.

In No. 7429, the proof to identify the appellant as the same person who was deported in 1950 is indicated above. It consisted of the photograph in the Closing Report, the tattoo described in this Report as compared with the one the witness at trial testified was on appellant's wrist, and there was the similarity of names. The trial judge held this was sufficient to go to the jury, and we agree. The proof that a person so identified was actually deported on July 20, 1950, at Laredo, Texas, was the above described testimony of an officer who detailed the practice followed in Laredo, together with the testimony that it was the witness's signature on the Warrant of Deportation showing it had been executed. It is proper to show custom as an element of the proof of identity and of physical deportation. This court in a case concerning the examination of veterans on discharge upheld the...