U.S. v. Hernandez

• Decision Date: 05 November 2004
• Docket Number: No. CRIM. B-04-439.,CRIM. B-04-439.
• Citation: 347 F.Supp.2d 375
• Parties: UNITED STATES of America, v. Cesar Javier HERNANDEZ.
• Court: U.S. District Court — Southern District of Texas

Page 375

347 F.Supp.2d 375

UNITED STATES of America, v. Cesar Javier HERNANDEZ.

No. CRIM. B-04-439.

United States District Court, S.D. Texas, Brownsville Division.

November 5, 2004.

Anthony P. Troiani, Attorney at Law, Brownsville, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

HANEN, District Judge.

Defendant Cesar Javier Hernandez ("Defendant"), who was indicted for assaulting, interfering with, and resisting a federal officer, specifically a United States Border Patrol agent, moved to dismiss the indictment.¹ Given the nature of the allegations in this matter, this court has extreme reluctance to consider dismissing this case. This court is second to none in its appreciation of the service rendered to this nation by the members of the Border Patrol. Further, this court has in the past punished individuals guilty of endangering a member of the Border Patrol and will not hesitate to do so again in an appropriate case. Nevertheless, after careful consideration of the motions, the responses, the evidence presented at the hearing, and the applicable law, the court reluctantly GRANTS Defendant's motion and hereby dismisses the indictment for the reasons elaborated below.

I. FACTS

For the most part, neither the Government nor defense counsel provided this court with much factual background. The facts of the incident from which the indictment arises, of which the most pertinent are highly contested, are discernible from the record and the parties' submitted exhibits. The undisputed facts are as follows: on May 28, 2004, Border Patrol agent David Robles ("Agent Robles") received a call from his partner, Border Patrol agent Charles Gantt ("Agent Gantt"), informing him that there were approximately eight illegal aliens on the levy near Oklahoma Road in Brownsville, Texas. Agent Robles responded to the call, and upon arriving at that location, which was a sorghum field, spotted several illegal aliens, two of whom were Defendant and Rosa Iselda Hernandez-Villela ("Villela"), Defendant's niece. Villela was pregnant at that time. When the undocumented aliens saw Agent Robles' Border Patrol vehicle, they disbursed in all directions. Agent Robles attempted to apprehend Defendant and Villela, and it is the facts surrounding their eventual apprehension that are vehemently disputed, with the Government and Defendant advancing two substantially different versions of the event.

According to the Government's portrayal of the incident, as Defendant and Villela were attempting to flee, Agent Robles told them to sit down. Instead of obeying, Villela aggressively approached Agent Robles and demanded that he strike her. Agent Robles called for assistance on his radio, and Villela then ran. Agent Robles placed the microphone portion of his radio in his back pocket and gave chase. He caught Villela and grabbed her arm. Defendant then approached Agent Robles from behind; grabbed the agent's radio from his back pocket; and swung the radio, hitting Agent Robles in the nose. Agent Robles swung his baton several times, making contact at least once with Defendant's knee. Defendant fell, and Agent Robles attempted to subdue him. While Defendant and Agent Robles were struggling on the ground, Villela hit Agent Robles several times on the head with her purse. Agent Gantt then arrived at the scene. Villela stopped hitting Agent Robles and ran toward Agent Gantt, who detained her, and Agent Robles eventually subdued Defendant.

Defendant's version of the incident implicates Agent Robles as the aggressor. According to Defendant, as he and Villela attempted to flee, Agent Robles told them to stop and screamed obscenities at them. Villela responded with a vulgar retort. Agent Robles then pushed Villela, took out his baton, and told her he was going to hit her if she did not sit down. Defendant and Agent Robles also exchanged words; Agent Robles then grabbed Defendant and threw him to the ground, where the struggle between the two men ensued.

Regardless of whose version is to be believed, it is also undisputed that Defendant and Villela were arrested and taken into custody. After the incident, Robles went to Valley Regional Medical Center, where a doctor apprized him that his nose was fractured. Special Agent Andrew B. Jones ("Agent Jones") of the Federal Bureau of Investigation ("FBI"), Brownsville office — the Government's case agent — interviewed and took the statements of Defendant, Villela, Agent Robles, Agent Gantt, and another illegal alien, Jose Antonio Montalvo, between June 2 and June 4, 2004, and recorded the information imparted to him in typed reports.²

Defendant's counsel was appointed to represent Defendant on June 1^st. A probable cause hearing was held before United States Magistrate Judge Felix Recio on June 4th. Defendant and Villela were indicted together in one indictment on June 15, 2004, for assaulting Agent Robles in violation of 18 U.S.C. § § 111(a) & (b).³ The record does not show whether any of the other illegal aliens were indicted.

Defendant and Villela were arraigned on June 23, 2004, at which time they both pled not guilty to United States Magistrate Judge John Wm. Black. At the arraignment, a Scheduling Order was issued, which dictated that pretrial motions were to be filed by July 9, 2004, and responses to same were to be filed by July 23^rd. A hearing on all motions filed was scheduled for July 29^th.

On July 15, 2004, the Government filed a superceding criminal information charging Villela with the misdemeanor of interfering with Agent Robles while he was attempting to detain illegal aliens, in violation of 18 U.S.C. § 111(a)(1). That same day, Villela pled guilty to Magistrate Judge Black, was sentenced to time served, and was then deported.⁴ On July 16^th, the Government filed a motion to dismiss the original indictment against Villela, but did not send a copy to Defendant's counsel. This court granted the Government's motion on July 19^th because Villela had plead guilty to the superceding criminal information.

It was at the motions hearing held before Magistrate Judge Black on July 29, 2004, that Defendant's counsel first learned that Villela had pled guilty to the superceding indictment and had been deported. At this court's August 10th final pretrial conference, Defendant's counsel orally requested a continuance, which was granted. Defendant's counsel then attempted to locate and subpoena Villela, but to no avail. On August 25^th, Defendant's counsel filed a motion for leave of court to file late a motion to dismiss the indictment, which this court granted on August 31^st at the final pretrial conference. Defendant's counsel filed a motion to dismiss the indictment on August 31^st, alleging the deportation of Villela violated Defendant's Fifth Amendment right to due process and his Sixth Amendment right to compulsory process because the Government's action deprived Defendant of a potential witness, i.e., Villela. The Government filed a response that same day.

On August 31^st, the court held an evidentiary hearing and heard oral argument pertaining to Defendant's motion. At the hearing, the parties referenced Agent Jones' reports, and the court ordered the Government to submit same to it for its inspection. On October 1^st, Defendant's counsel filed an amended motion to dismiss the indictment, and the Government filed a response that same day.

II. DISCUSSION

A. Issues Presented

The primary issue before the court is whether Defendant's Fifth Amendment right to due process and his Sixth Amendment right to compulsory process were violated by the Government's deportation of Villela. However, before the court can address this question, the proper test to be employed must first be delineated. Specifically, the court must decide whether Defendant must show that the Government acted in bad faith when, in exercising its deportation authority, it caused the absence of Villela in addition to proving that Villela's testimony would have been material and favorable to his defense, and not merely cumulative to the testimony of available witnesses. Of note, the Government does not maintain that Defendant must prove bad faith. Defendant, on the other hand, contends that the Government bears the burden of proving that it acted in good faith when it deported Villela.

B. Applicable Test

The Sixth Amendment guarantees a criminal defendant compulsory process "for obtaining witnesses in his favor."⁵ U.S. Const. amend. VI. "This right is a fundamental element of due process law." Washington, 388 U.S. at 19, 87 S.Ct. 1920.

The seminal Supreme Court decision that established the test to determine whether a Sixth Amendment violation occurs when the Government deports an illegal alien before defense counsel has an opportunity to interview the alien is United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In Valenzuela, the defendant was found guilty at trial on a charge of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2). Id. at 858, 102 S.Ct. 3440. The federal government had deported to Mexico two illegal aliens the defendant was charged with criminally transporting before the defendant had an opportunity to interview them to determine if they could provide him with material evidence to aid his defense. Id. The defendant argued that the aliens were necessary to his defense, and their unavailability due to the Government's action violated his right to compulsory process. Id.

The Valenzuela Court upheld the deportation. Id. The Court reasoned that the responsibility of the Executive Branch of the federal government to faithfully execute the immigration laws enacted by Congress justified the prompt deportation of illegal alien witnesses once the Executive Branch made a good-faith determination that the witnesses possessed no evidence favorable to the defendant in a criminal prosecution. Id. at 872, 102 S.Ct. 3440. The mere fact that the Government deported illegal alien...