U.S. v. Cruz-Rodriguez

• Decision Date: 24 June 2009
• Docket Number: No. 07-4083.,07-4083.
• Citation: 570 F.3d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo CRUZ-RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

570 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Arturo CRUZ-RODRIGUEZ, Defendant-Appellant.

No. 07-4083.

United States Court of Appeals, Tenth Circuit.

June 24, 2009.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with him on the briefs), Salt Lake City, UT, for Defendant-Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff-Appellee.

Before O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Arturo Cruz-Rodriguez was charged with one count of illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1326. He was convicted by a jury and sentenced to seventy-seven months' imprisonment. He appeals his conviction on the ground that the district court impermissibly expanded the scope of the indictment. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that this argument was waived and AFFIRM the district court's judgment.

I. BACKGROUND

In July 2006, Mr. Cruz-Rodriguez approached a federal immigration agent who was investigating reports of destitute illegal aliens residing in a neighborhood of Salt Lake City, Utah. In heavily accented, broken English, he asked the agent why the police were asking questions and arresting people. The agent asked him where he was born, and Mr. Cruz-Rodriguez replied that he was born in Los Angeles. Mr. Cruz-Rodriguez was unable to satisfactorily answer follow-up questions or produce any identification. He began to walk away. Then, when Mr. Cruz-Rodriguez was told to stop, he began to run. He was apprehended, and, although Mr Cruz-Rodriguez maintained that he was a U.S. citizen, a fingerprint check revealed that he had an alien registration number and had been previously deported to Mexico.

A grand jury returned a one-count indictment, charging Mr. Cruz-Rodriguez as follows:

On or about July 10, 2006, in the CENTRAL Division of the District of Utah, ARTURO CRUZ-RODRIGUEZ, aka ARTURO CISNEROS-CASARES, the defendant herein, an alien who on or about May 31, 2002, was excluded, removed, and deported from the United States, was knowingly present and was found in the United States in the District of Utah, having not obtained the consent of the Attorney General of the United States and the Secretary of the United States Department of Homeland Security to reapply for admission into the United States; all in violation of Title 8, United States Code, Section 1326.

R., Vol. I, Doc. 1, at 1-2 (Indictment, dated July 19, 2006) (emphasis added).

In preparation for trial, the government submitted proposed jury instructions and a trial brief. Relevant here, Proposed Instruction No. 5 stated in part: "I[f] you find that the defendant was deported from the United States at any time-prior to July 10, 2006, the [prior deportation] element [of the offense] is met." R., Vol. I, Doc. 17, at 8 (Government's Proposed Jury Instructions, filed Dec. 26, 2006). In its trial brief, the government explained that it would prove that Mr. Cruz-Rodriguez had previously been deported by introducing documents from his "A-file," the official record maintained by Immigration and Customs Enforcement ("ICE") of an alien's contacts with federal immigration officials or contacts with state or federal law enforcement. These documents related to deportations in 1988, 1993, 1997, and 2002. Furthermore, an expert witness would testify that Mr. Cruz-Rodriguez's fingerprints matched a warrant of deportation dated May 20, 2002, from the A-file.

Mr. Cruz-Rodriguez filed an objection to Proposed Instruction No. 5 and a motion in limine seeking exclusion of the May 20, 2002, warrant of deportation. He argued that the effect of the jury instruction was "to sever the date of deportation alleged in the indictment, May 31, 2002, from the Jury's consideration" and that this instruction "impermissibly expands the potential evidence considered by the jury to a period of almost twenty years." R., Vol. I, Doc. 26, at 1-2 (Objection to Government's Jury Instruction No. 5, filed Jan. 4, 2007). The motion in limine argued that irregularities in the warrant of deportation made it unreliable and that, for this reason, it should not be admitted under Federal Rule of Evidence 803(8), the public records exception to the hearsay rule. The district court rejected Mr. Cruz-Rodriguez's arguments regarding the alleged irregularities, stating that the warrant of deportation "is admissible under the public record exception of Fed.R.Evid. 803(8)." R., Vol. I, Doc. 30, at 1-2 (Mem. Decision and Order Denying Def.'s Mot. in Limine, filed Jan. 4, 2007). The district court overruled the objection to Proposed Instruction No. 5 on the grounds that the date of the deportation is not an element of the offense.

Before voir dire, the district court inquired whether there were any concerns about the jury instructions it intended to use. Counsel for Mr. Cruz-Rodriguez replied that he did not "anticipate any concerns," but he asked for an opportunity for "the benefit of the record just to clarify the earlier objections that the Court has ruled on." R., Supp. Vol. VI, Tr. at 5 (Jury Trial, dated Jan. 5, 2007). He stated that "[w]e don't plan on objecting during the course of the trial since the Court has made a final ruling on that," but also stated that he would continue to object to the admission of the warrant of deportation and objected "just for the benefit of the record" to Proposed Jury Instruction No. 5. Id. at 5-7.

In his opening statement, counsel for Mr. Cruz-Rodriguez conceded that Mr. Cruz-Rodriguez had been previously deported, telling the jury that the only argument would be over whether the government had proved he was not a citizen or national of the United States. After opening statements, the parties entered into a factual stipulation agreeing, inter alia, to the following fact: "Defendant was deported on June 10, 1988, March 8, 1993, January 24, 1997, and May 31, 2002." R., Supp. Vol. VII, at 1 (Stipulation of Fact, dated Jan. 5, 2007). Through counsel, Mr. Cruz-Rodriguez agreed that the jury instructions could be amended to state that because the parties had stipulated to these facts, the jury "must consider [the prior-deportation element] proven." R., Vol. III, Tr. at 27 (Jury Trial, dated Jan. 5, 2007).

When the district court provided the parties with revised jury instructions, counsel for Mr. Cruz-Rodriguez replied, "I agree with the verdict form and the instructions that have been offered." Id. at 106. Accordingly, the district court instructed the jury that the first element the government needed to prove was that "the defendant was an alien at the time of the offense alleged in the Indictment." R., Vol. I, Doc. 38, at 21 (Jury Instructions, dated Jan. 9, 2007). Furthermore, the district court instructed the jury that the second element the government must prove is that "prior to the time of the offense alleged in the Indictment, the defendant had been removed or deported from the United States. The parties have stipulated that this element is proved and you must consider it proven." Id. at 18, 22. The jury returned a guilty verdict.

Mr. Cruz-Rodriguez was sentenced to seventy-seven months' imprisonment, followed by thirty-six months of supervised release, and a mandatory $100 special assessment fee. The district court entered judgment, and Mr. Cruz-Rodriguez timely filed a notice of appeal.

II. DISCUSSION

On appeal, Mr. Cruz-Rodriguez argues that the jury instructions constructively amended the indictment, creating the possibility that the jury convicted him of a crime with which he was not charged. This argument is not without force. See United States v. Bishop, 469 F.3d 896, 902 (10th Cir.2006) (holding that "[i]f an indictment charges particulars, the jury instructions and evidence introduced at trial must comport with those particulars," and the charged particular becomes "an essential element of the indictment"), abrogated in part on other grounds by Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); cf. United States v Gonzalez Edeza, 359 F.3d 1246, 1250 n. 1 (10th Cir.2004) (noting that the prohibition on constructive amendments "protects both a defendant's right to be subjected only to charges set by a grand jury and his interests in having sufficient notice").¹ The right to be free from constructive amendments is fundamental.

The prohibition on constructive amendments is derived from (1) the Fifth Amendment which limits a defendant's jeopardy to offenses charged by a grand jury, and (2) the Sixth Amendment which guarantees the defendant notice of the charges against him. A constructive amendment occurs when the Government, through evidence presented at trial, or the district court, through instructions to the jury, broadens the basis for a defendant's conviction beyond acts charged in the indictment. To constitute a constructive amendment, the district court proceedings must modify an essential element of the offense or raise the possibility that the defendant was convicted of an offense other than that charged in the indictment. Where an indictment properly pleads violation of a statute, and the defendant was not misled about the nature of the charges, his substantive rights are not prejudiced.

United States v. Van Tieu, 279 F.3d 917, 921 (10th Cir.2002) (citations omitted); United States v. Farr, 536 F.3d 1174, 1179-80 (10th Cir.2008).

The indictment in the instant case charged Mr. Cruz-Rodriguez with one specific prior deportation—that of May 31, 2002. The jury instructions, however, only required proof of a deportation "prior to the time of the offense alleged in the Indictment," and did not require the jury to specify the prior deportation upon which it would rest its finding. R., Vol. I, Doc. 38, at 22; see R., Vol. I, Doc. 36, at 1 ...