U.S. v. Barajas-Chavez, No. 03-2059.

• Decision Date: 25 February 2004
• Docket Number: No. 03-2059.
• Citation: 358 F.3d 1263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin BARAJAS-CHAVEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee, v. Martin BARAJAS-CHAVEZ, Defendant-Appellant.

No. 03-2059.

United States Court of Appeals, Tenth Circuit.

February 25, 2004.

Floyd W. Lopez, Floyd W. Lopez, P.A., Albuquerque, NM, for Defendant-Appellant.

Fred J. Federici, Assistant United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Before SEYMOUR, HARTZ, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

In 1995, federal officials detained Martin Barajas-Chavez at a traffic checkpoint near Gallup, New Mexico while he was transporting ten illegal aliens in a pickup truck bound for Colorado. He was subsequently indicted on two counts of transporting illegal aliens from Arizona to New Mexico in violation of federal immigration law. A jury convicted Barajas-Chavez on both counts. The district court set aside the jury verdict on the ground that the evidence was insufficient to support the convictions, but this Court sitting en banc reversed the district court's decision and remanded for reinstatement of the jury verdict and sentencing. See United States v. Barajas-Chavez, 134 F.3d 1444 (10th Cir.1998), and United States v. Barajas-Chavez, 162 F.3d 1285 (10th Cir.) (en banc), cert. denied, 528 U.S. 826, 120 S.Ct. 76, 145 L.Ed.2d 65 (1999). The district court reinstated the jury verdict in December 2000 and sentenced Barajas-Chavez to 62 days imprisonment (time served) on January 24, 2003.

Prior to reinstatement of the jury verdict, on remand, Barajas-Chavez asked the district court to reconsider two previously denied pre-trial motions relating to the propriety of his arrest and indictment. The district court denied the motion for reconsideration. See United States v. Barajas-Chavez, 236 F.Supp.2d 1279 (D.N.M. 2002).

Barajas-Chavez appeals the denial of the motion for reconsideration and another pre-trial motion to dismiss the indictment that related to the unavailability of two potential defense witnesses. We take jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

This Court has previously disposed of Barajas-Chavez's challenge to the sufficiency of the evidence supporting his conviction, 162 F.3d at 1286, and we need not repeat those facts here. We restate only those facts relevant to the motions now before us on appeal.

On March 10, 1996, Immigration and Naturalization Service (INS) officials stopped Barajas-Chavez at a Gallup, New Mexico, license and registration checkpoint as he entered New Mexico from Arizona on Interstate 40. He was arrested after the INS officials discovered Barajas-Chavez, along with the ten other men and women in the cab and camper shell of his pick-up truck, lacked documentation of citizenship. The officials interviewed all of the passengers in the truck, but the government relied on only two, Mr. Macias-Lopez and Mr. Lopez-Arellano, to support an indictment. Barajas-Chavez was subsequently indicted for the transportation of Macias-Lopez and Lopez-Arellano, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(ii) (1994) and 18 U.S.C. § 2 (1994). The other passengers were allowed to return voluntarily to Mexico.

Before trial, Barajas-Chavez filed a Motion to Dismiss Indictment, arguing that the government had not acted in good faith by allowing two passengers, Ms. Fonseca-Moreno and Mr. Garcia-Galvan, to return to Mexico because Barajas-Chavez was unable to use them as witnesses in his defense. He maintained that these two potential witnesses would have testified that they were traveling with Barajas-Chavez as friends, thus negating the "in furtherance of violation of law" element of the crime with respect to Macias-Lopez and Lopez-Arellano.¹ The district court denied the motion after a hearing on July 5, 1996. The district court found that, since Barajas-Chavez was not indicted for transporting Fonseca-Moreno and Garcia-Galvan, their testimony would not be material under United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir.1994) (evidence is sufficient to support conviction under 8 U.S.C. § 1324(a)(1)(B) if it shows "the defendant had the intent to further the aliens' presence in this country").

At the time he filed the Motion to Dismiss Indictment, Barajas-Chavez also filed a Motion to Quash Arrest and a Motion to Suppress Evidence. In his Motion to Quash Arrest he argued that the search of his vehicle and subsequent arrest were illegal under the Fourth Amendment. In his Motion to Suppress Evidence he argued that evidence seized as a result of the allegedly illegal stop and arrest should be suppressed. He made no reference to the validity of the roadblock in either of these motions.

During the July 5 motions hearing, the district court questioned whether Barajas-Chavez had raised the issue of the roadblock's legality and Barajas-Chavez's counsel replied that he had not briefed that issue. III R.O.A., Tr. of Motions Hearing, at 93 (July 5, 1996) [hereinafter Motions Tr.]. Thereafter, the court told the prosecution that it need not present argument regarding the roadblock's legality because the issue had not been adequately raised at the hearing. Id. at 117. Barajas-Chavez did not object.

Ultimately, the district court held that Barajas-Chavez had waived his challenge to the legality of the roadblock by not previously raising the issue. Id. Barajas-Chavez did not object to the court's conclusion and a jury subsequently convicted him of both counts of the indictment.

On December 1, 2000, after remand from this Court's resolution of the district court's post-conviction judgment of acquittal, see Barajas-Chavez, 162 F.3d 1285, Barajas-Chavez filed a Motion for Reconsideration of Motion to Quash Arrest and Motion to Suppress Evidence, arguing that the roadblock was improper under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), a Supreme Court decision handed down three days earlier. The district court denied that motion, holding that Barajas-Chavez had waived his challenge to the roadblock's legality under Rule 12(f) of the Federal Rules of Criminal Procedure (now at Fed. R.Crim.P. 12(e) (2002)). See I R.O.A. Doc. 125, Memorandum Opinion and Order, at 6 (Dec. 13, 2002); Barajas-Chavez, 236 F.Supp.2d at 1282 (citing United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir. 1991)).

On January 24, 2003, the trial court sentenced Barajas-Chavez to a term of 62 days imprisonment (time served). It entered its judgment on February 11, 2003 and this appeal followed.

II.

Barajas-Chavez raises three issues on appeal. First, he argues insufficient evidence existed for the jury to find he transported the aliens in violation of federal law. Because the en banc Court has already concluded the evidence was sufficient to support Barajas-Chavez' conviction, see Barajas-Chavez, 162 F.3d at 1289-90, we need not address the merits of this issue. Second, he argues that the district court improperly denied his motion to reconsider his prior motions to quash his arrest and suppress evidence. Third, he argues that the district court improperly failed to dismiss his indictment after INS agents allowed two of the aliens he was transporting and whom he wished to call at trial to voluntarily return to Mexico.

A.

We need not reach the merits of Barajas-Chavez's second argument because we agree with the district court that Barajas-Chavez has waived his argument that the roadblock was illegal. We review the district court's denial of a motion for reconsideration for an abuse of discretion. Anthony v. Baker, 767 F.2d 657, 666 (10th Cir.1985).

A defendant must raise a motion to suppress evidence before trial or that objection is waived. Fed.R.Crim.P. 12(e) (2002). This "waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion." Dewitt, 946 F.2d at 1502.

Barajas-Chavez argues that his pre-trial motions adequately claimed the stop was illegal and contained all information available to him prior to the hearing. The government argues that Barajas-Chavez's general references to the roadblock's illegality failed to set forth disputed issues of material fact regarding his allegations that the roadblock was pretextual and not carried out pursuant to lawful public safety considerations.

Barajas-Chavez was required to set forth plainly in his pre-trial motions the grounds upon which he sought relief. "To warrant an evidentiary hearing, the motion to suppress must raise factual allegations that are `sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact ... are in issue.'" United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.1995) (quoting United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986)). "A defendant who requests a hearing bears the burden of showing that there are disputed issues of material fact." Id. (quoting United States v. Woods, 995 F.2d 713, 715 (7th Cir.1993) (citations omitted)).

To the extent Barajas-Chavez refers to the roadblock, he sets forth no "sufficiently definite, specific, detailed, and nonconjectural" factual allegations. Id. In his written filings Barajas-Chavez made only perfunctory references to the stop and search, with no mention of any facts showing the roadblock was illegal.² The memoranda in support of his motions, each a little over one page in length, add no facts supporting his claim.

In addition, during the motions hearing Barajas-Chavez made a few isolated remarks about the roadblock's legality, but again set forth no specific legal arguments or facts to support his position. See Motions Tr. at 9-10, 93-94. Although he argued he did not have the information necessary to brief the issue of the roadblock's legality before the hearing, the district court noted that the testimony at the evidentiary hearing was nearly identical to that provided in the briefs. See id. at 93.

In light of this, it is incongruous that...