U.S. v. Hernandez-Rivas

• Decision Date: 23 January 2008
• Docket Number: No. 06-2647.,06-2647.
• Citation: 513 F.3d 753
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan HERNANDEZ-RIVAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

513 F.3d 753

UNITED STATES of America, Plaintiff-Appellee, v. Juan HERNANDEZ-RIVAS, Defendant-Appellant.

No. 06-2647.

United States Court of Appeals, Seventh Circuit.

Argued October 23, 2007.

Decided January 23, 2008.

Philip Benson (argued), Office of the United. States Attorney, Hammond, IN, for Plaintiff-Appellee.

Barry Levenstam, Joseph A. Saltiel (argued), Jenner & Block, Chicago, IL, for Defendant-Appellant.

Before BAUER, CUDAHY, and SYKES, Circuit Judges.

BAUER, Circuit Judge.

On May 10, 2005, around 10:00 a.m., Trooper Jason Carmin of the Indiana State Police was traveling eastbound in the left lane of the Indiana Toll Road. Approximately 200 or 300 feet ahead of him in the right lane, he saw a full-sized white van with California license plates and tinted windows. He also saw another vehicle in the right lane behind the van, as well as other vehicles, traveling in front of the van. Trooper Carmin watched the van cross over the center line about one foot into the left lane two times within one mile, without using its turn signal. Believing the driver of the van to be intoxicated and a possible danger to other vehicles on the road, Trooper Carmin pulled the van over. He approached the vehicle and asked the driver for his license. The driver appeared nervous; his hands were shaking and he would not make eye contact. Trooper Carmin told the driver to exit the vehicle and proceeded to ask the driver some questions.

The driver told Trooper Carmin that he was traveling from California to New Jersey, and that he did not know the name of the owner of the van. While the driver stood at the back of the van, Trooper Carmin approached the passenger side. Hernandez-Rivas was sitting in the front seat. The trooper asked Hernandez-Rivas who owned the van. Hernandez-Rivas told him that the van was a rental, but could not produce any rental agreement. When Trooper Carmin asked the other eleven passengers if anyone had proper documentation to be in the United States legally, no one responded. Trooper Carmin noticed that the passengers were wearing several layers of clothes, and that there was trash scattered on the floor of the van.

The trooper contacted Immigration and Customs Enforcement ("ICE") agents because he believed he was dealing with a human trafficking case. He also issued the driver a written warning for unsafe lane movement. Hernandez-Rivas and the other occupants of the van were transported to a nearby police station in Chesterton, Indiana, where ICE Special Agents Rodolfo Medellin and Karel Matyska conducted interviews of Hernandez-Rivas, the driver, and the other occupants of the van. Hernandez-Rivas was carrying a California Identification Card, a Mexican Identification Card, and $2,599.85 in United States currency. During the interview, Hernandez-Rivas confessed that on May 10, 2005, he was transporting fifteen illegal aliens from California to New Jersey, and that for his services, he would receive $3500 from a man named Abraham. He also said that before the van was pulled over by Trooper Carmin, he dropped off four passengers in the Chicago area, collecting $500 to $650 from relatives that were waiting to pick up the passengers. He admitted that he made three previous trips in the month of May, with fifteen to sixteen passengers in the van on each trip. The agents also learned that Hernandez-Rivas had been previously removed from the United States and had reentered the country illegally.

On May 18, 2005, Hernandez-Rivas was indicted for conspiring to transport illegal aliens for commercial or private gain, transporting illegal aliens for commercial or private gain, and illegal re-entry into the United States after being deported. On July 22, 2005, an amended plea agreement was filed with the court, where Hernandez-Rivas agreed to plead guilty to the first two charges in exchange for the government's dismissal of the illegal reentry charge.

A plea hearing for Hernandez-Rivas was held on August 9, 2005.¹ Initially, the district court judge told Hernandez-Rivas that "[i]f you can't hear the interpreter, if the electronic equipment doesn't work, or for some reason you can't hear [the interpreter] tell me and I'll have her repeat the interpretation or we'll have to fix the equipment. Do you understand?" Hernandez-Rivas stated that he did. Pursuant to. Federal Rule of Criminal Procedure 11, the judge engaged Hernandez-Rivas in a colloquy to determine whether, inter alia, he understood the nature of the charges against him, what the possible penalties were, and whether he was coerced or threatened by anyone to plead guilty. Hernandez-Rivas's responses satisfied the judge, and thereafter, pursuant to Rule 11(b)(3), he attempted to elicit a factual basis for the guilty plea from Hernandez-Rivas. The judge first asked him why he was guilty, and Hernandez-Rivas explained that a man told him to transport individuals from Los Angeles to New Jersey, in exchange for $1000. The following exchange then took place between the district court judge and Hernandez-Rivas:

Q: Did you ask [the man] any questions of who you were going to transport?

A: No, I never asked him.

Q: Did you know anything about the people you were going to transport?

A: No, I didn't know that either.

Q: Were you ever told anything about the people you were going to be transporting?

A: No, that was never told to me.

Q: Would you have to deduct anything [from the payment of $1000] for expenses? Was that a thousand dollars free and clear?

A: No, that thousand dollars was payment for the work of having driven.

. . .

Q: At the time, did you believe that you were doing anything illegal?

A: No, your Honor. At no time did I believe that I was doing anything illegal.

Q: Did you ever ask any questions regarding whether anything you were going to be doing would be illegal?

A: No, I never asked any questions, your Honor.

. . .

Q: You didn't think anything was illegal because of how much money you were getting?

A: No, your Honor.

The court called for a sidebar, and the prosecutor immediately stated, "I say just go to trial, Judge." Hernandez-Rivas's counsel asked the district judge if the Spanish interpreter was translating correctly, and he responded that she was. The judge said he was "struggling" with eliciting the factual basis, and expressed concern that giving Hernandez-Rivas opportunity to take a break would result in Hernandez-Rivas returning with a different story. A second illustrative dialogue between the district judge and Hernandez-Rivas followed:

Q: Did you ever suspicion that the individuals in the van were illegal aliens?

A: No, your Honor, I never had those suspicions.

Q: If you had known that they were illegal aliens, would you have continued to transport them to New Jersey?

A: No, sir.

. . .

Q: Did anything occur on the trip that led you to believe that these individuals were illegal aliens?

A: No, your Honor.

The judge called another sidebar, and once more expressed skepticism that Hernandez-Rivas's statements established a sufficient factual basis. The prosecution again requested that they proceed to trial. The judge granted a recess to allow counsel for Hernandez-Rivas to speak with his client, but expressed hesitation in doing so, stating, "I have no problem with [counsel speaking to Hernandez-Rivas], but I'm not sure I'll accept a different story. I gave [him] two opportunities. I told [him] to be totally honest with me."

After the recess, the judge gave Hernandez-Rivas yet another opportunity to explain why he was guilty. He told the judge that he began to realize he was transporting illegal aliens when they left Los Angeles, and became more aware of their illegal status when they arrived in Chicago. Hernandez-Rivas said that he did not understand the judge's previous questions because the headphone he was using to hear the Spanish interpreter was making noise. He also blamed the misunderstanding on his nerves and the length of the hearing. Hernandez-Rivas then admitted that he "would like to accept responsibility," and that he was "guilty of having brought these people [into the United States] without documents."

The district judge stated that there was not a sufficient factual basis made, commenting that even if he were to accept the answers from the second colloquy, he was not confident that he could "give [the answers] any credibility because of the inconsistency to the first answers." The judge went on to say "[i]f anything, it's more suspect" that Hernandez-Rivas's stories were inconsistent. Consequently, the judge rejected Hernandez-Rivas's guilty plea, finding that there was not a sufficient basis for a finding of guilty and Hernandez-Rivas's answers were "totally inconsistent."

On November 18, 2005, during a motions hearing, Hernandez-Rivas made another attempt to plead guilty, which the court denied, again noting the inconsistencies in his stories.

On November 21, 2005, an evidentiary hearing was held on Hernandez-Rivas's motion to suppress the evidence seized following Trooper Carmin's traffic stop and subsequent search of the van. Hernandez-Rivas argued that the stop was pretextual because Trooper Carmin believed the occupants were suspicious. The district court denied the motion, finding that the stop was not pretextual, and that Trooper Carmin had reasonable suspicion to stop the van when he saw it swerve over the white center line twice in one mile, while other vehicles were in the vicinity, and the van's movements violated §§ 9-21-8-24 and 9-21-8-11 of the Indiana Motor Vehicle Code. Moreover, the court found that improper lane usage is a legitimate reason for an investigatory stop. The district court also held that Trooper Carmin had probable cause to believe that the driver of the van had committed a traffic offense and posed a danger to others on the road.

On January 3, 2006, Hernandez-Rivas filed a motion to dismiss his counsel, claiming that his attorney told him that...