U.S. v. Herrera-Ochoa

• Decision Date: 19 March 2001
• Docket Number: No. 00-50046,HERRERA-OCHOA,00-50046
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMAS, also known as Jose Ochoa-Herrera, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 495

245 F.3d 495 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMAS HERRERA-OCHOA, also known as Jose Ochoa-Herrera, Defendant-Appellant.

No. 00-50046

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

March 19, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Tomas Herrera-Ochoa ("Herrera") appeals the district court's finding that the evidence was sufficient to convict him of unlawfully being in the United States after deportation in violation of 8 U.S.C. 1326 (" 1326") as well as the district court's denial of a motion to suppress his Immigration and Naturalization Service ("INS") A-file¹ that he contends is a "fruit" of his illegal arrest. Because we find that the district court did not err in denying the motion to suppress his A-file, but erred in convicting Herrera, we affirm in part and reverse in part.

FACTUAL & PROCEDURAL HISTORY

While walking in a high-risk crime area, Herrera was arrested by Officer Ruben Mendoza ("Mendoza") in El Paso, Texas, on April 2, 1999, after he and his companion turned and walked away briskly upon seeing Mendoza. After Herrera informed him of his name and birth date, Mendoza was told by a radio dispatcher that Herrera was a possible deported felon. Subsequently, Mendoza accompanied Herrera to police headquarters for fingerprinting and to the Border Patrol office. The immigration authorities at the Border Patrol office placed Herrera's fingerprints through the Ident system and confirmed that Herrera was an undocumented alien. Herrera later confessed to an INS special agent that he was a citizen of Mexico who had previously been deported from the United States and that he had not received permission from the Attorney General to reapply for legal admission.

Herrera was indicted for being an alien, who had illegally re-entered or was "found in" the United States without the consent of the Attorney General, after having been deported in violation of 1326. See United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995). Herrera moved for suppression of his fingerprints, statements, body, identity, and A-file. The district court only allowed the suppression of his fingerprints and his confession, finding that Mendoza had neither probable cause nor reasonable suspicion to detain Herrera.

The sole testimony at trial was by INS Special Agent Michael Puzio ("Puzio") who testified that from his review of Herrera's A-file, Herrera was "found in" El Paso at the time of his arrest. Puzio also testified that the A-file established that Herrera was deported in 1997 and that he had not applied for permission to re-enter the United States. The government, however, failed to present testimony from Mendoza regarding Herrera's undocumented status or evidence of Herrera's admission regarding his illegal status. In a bench trial, Herrera was subsequently found guilty of illegal re-entry.

DISCUSSION

A.Motion to Suppress the A-File

Herrera asserts that the trial court erred when it denied Herrera's motion to suppress his

A-file because it found that Herrera was illegally stopped and seized, and it suppressed his fingerprints and his confession on that basis.² Herrera contends that just as his fingerprints were suppressed, his A-file should be suppressed as a fruit of his illegal seizure.

"In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo, and accept the trial court's factual findings unless they are clearly erroneous." United States v. Castro, 166 F.3d 728, 731 (5th Cir. 1999). This Court also reviews the evidence in the light most favorable to the government, the prevailing party in the instant case. See id.

A de novo review of the trial court's legal conclusions indicates that it correctly relied on United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (stating that "a defendant's INS file need not be suppressed because of an illegal arrest"), and United States v. Pineda-Chinchilla, 712 F.2d 942, 944 (5th Cir. 1983) (noting that since a defendant "has no legitimate expectation of privacy in the file, he has no standing to challenge its introduction into evidence"). Although Herrera attempts to distinguish these cases from the present case on the basis that the defendants did not establish that the files were obtained through exploitation of the initial illegality of the defendants' unlawful arrest, we find this argument unavailing.³ The government correctly argues that although the defendants in those cases may not have established that the file was a "fruit of the poisonous tree," this Court considered these arguments. Pineda-Chinchilla, 712 F.2d at 943 (stating that the question of whether the A-file should "be suppressed as the product of an illegal arrest because [it is] 'the fruit of the poisonous tree'" should be answered in the negative); see also Roque-Villanueva, 175 F.3d at 346 (discussing the "fruit of the poisonous tree" in Pineda-Chinchilla). Therefore, the district court did not err regarding this issue.⁴

B.Sufficiency of the Evidence

Herrera also argues that the district court erred when it convicted him of violating 1326 because the government failed to prove beyond a reasonable doubt that he was "found in" the United States on or about the date alleged in the indictment as one of the elements of the crime. The government, however, counters that the district court did not err because Herrera's presence in the United States at the time of his arrest may be inferred from the docket entry, his appearance at trial, and the documents in his A-file.

This Court must affirm a conviction if a rational trier of fact could have found, viewing the evidence and all inferences therefrom in the light most favorable to the verdict, that the evidence established the essential elements of the crime beyond a reasonable doubt. United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999). The government argues that United States v. Santana-Castellano, in which this Court held that an undocumented alien was "found in" the United States in prison, is controlling. 74 F.3d 593, 598 (5th Cir. 1996). Addressing a sentencing appeal only we stated:

[w]here a deported alien enters the United States and remains here with the knowledge that his entry is illegal, his remaining here until he is "found" is a continuing offense . . . [t]his analysis gives common sense effect to the 'found in' language of 1326, which is obviously intended to extend the definition of the offense to include those situations where the alien is the only one who knows the precise date of his surreptitious entry and knows that he has violated the law in reentering the country after he has been arrested and deported. Id.

Like the indictment in the instant case, the indictment in Santana-Castellano charged the defendant with being found in the United States on a specific date. Id. at 598. The critical distinction between the cases, however, is that the defendant in Santana-Castellano pled guilty to the charge thereby conclusively establishing that he was found in the United States on the date charged in the indictment, given his incarceration at the Texas Department of Criminal Justice for injury to a child. Here, unlike in Santana-Castellano, we have a bench trial and there is no clear record evidence that Herrera was found in the United States on or about April 2, 1999, the date charged in the indictment.

The government argues nonetheless that the docket entry which notes "4/2/99 - Arrest of Tomas Herrera-Ochoa," is record evidence that proves Herrera's guilt. We note, however, that while the docket entry indicates that Herrera was arrested on April 2, 1999, it does not reveal adequate information such that it may satisfy the government's burden to prove an essential element of the crime beyond a reasonable doubt. For instance, the docket entry does not reveal where Herrera was arrested or by whom he was arrested.

The government similarly contends that Herrera's appearance at trial, as well as the documents in his A-file, may be used to infer that Herrera was found in the United States on or about April 2, 1999. We find this argument unpersuasive, given the untenable choice such an argument forces a criminal defendant to make. As Herrera correctly argues, a criminal defendant would be forced to choose between his Sixth Amendment right to be present at trial or his Fifth Amendment due process right that the government prove each and every element of the offense charged against him beyond a reasonable doubt.⁵ In Re Winship, 397 U.S. 358, 362, 364 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The Supreme Court has deemed such a choice, in which "one constitutional right should have to be surrendered in order to assert another," "intolerable." Simmons v. United States, 300 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).

The instant case turns on whether or not the government presented sufficient probative evidence to establish beyond a reasonable doubt- the "found in" element it charged in the indictment. For reasons not revealed by the record, the government did not present the same proof at trial that it did at the motion to suppress hearing. Though called at the suppression hearing, Mendoza, the arresting officer, did not testify at trial that he found Herrera in El Paso on April 2, 1999, as charged in the indictment. Likewise, Herrera's admission that he had previously been deported and that he had not been granted permission by the Attorney General to re-enter the United States was not put in evidence at trial. Having survived the suppression hearing with the A-file still in its quiver, the government relied on this one arrow of evidence in its quest to hit the bullseye.

The district court's oral reasons for judgment of conviction relied principally on the...