U.S. v. Lujan-Castro
| Decision Date | 24 July 1979 |
| Docket Number | No. 79-1027,LUJAN-CASTR,D,79-1027 |
| Citation | 602 F.2d 877 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carlosefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank R. Zapata, Asst. Federal Public Defender, Fredric F. Kay, Tucson, Ariz., for defendant-appellant.
Gerald S. Frank, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before SNEED and HUG, Circuit Judges, and ZIRPOLI, * District Judge.
Carlos Lujan-Castro moved the district court to dismiss the indictment against him on the grounds that the waiver of his right to have the government maintain the presence of four deportable alien witnesses was ineffective. The district court denied the motion to dismiss, and Lujan-Castro subsequently was convicted of two counts of transporting illegal aliens, in violation of 8 U.S.C. section 1324(a)(2). He appeals, citing as error the denial of his motion to dismiss the indictment. We affirm.
In the early morning hours of October 4, 1978, agents of the Border Patrol stopped a pickup truck near Douglas, Arizona. The truck, which was being driven by appellant, contained six illegal aliens. Appellant and the others were arrested, and appellant was interviewed at intervals over the next several hours. Approximately four hours after the arrest, the agents requested a waiver by the appellant of his right to have the government retain custody of four of the six deportable aliens. This waiver consisted of two forms, both written in Spanish, appellant's native tongue. The first advised appellant that he had a right to require the government to retain deportable aliens who might be witnesses on his behalf; that once released the witnesses could not be brought back to testify; and that appellant was entitled to the assistance of counsel in deciding whether to request the retention of the aliens. The second form recited that appellant had read the first form and understood his rights; it further stated that appellant knowingly and willingly relinquished these rights and agreed to permit the release of the aliens. Appellant, after some deliberation, signed both forms. Four of the six aliens who had been arrested with appellant were returned to Mexico the same day.
Prior to trial, appellant moved the district court to dismiss on the grounds that the release of the four aliens denied him due process and his right to compel the attendance of favorable witnesses. The district court conducted a hearing on the motion and took testimony concerning the circumstances under which the waiver forms were executed. The district court concluded that the waiver had been knowingly and intelligently made, and denied the motion.
Appellant argues that the denial of the motion to dismiss was error in two respects. First, he claims that the district court was mistaken in its conclusion that the waiver was knowingly and intelligently executed. Second, he claims that the waiver of a right of such magnitude cannot be proper as a matter of law unless made in the presence of a judge or magistrate, or with the assistance of counsel. We reject both claims.
The district court's conclusion that the waiver was knowingly and intelligently executed is a finding of fact that may not be disturbed unless clearly erroneous. United States v. Fong, 529 F.2d 55, 58 (9th Cir. 1975); United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974). Ample evidence in the record supports the district court's conclusion regarding appellant's state of mind at the time he executed the waiver forms, and while the testimony...
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United States v. Tariq
...507 F.2d 30 (9 Cir. 1974), and reaffirmed, United States v. Valenzuela-Bernal, 647 F.2d 72 (9 Cir. 1981); United States v. Lujan-Castro, 602 F.2d 877, 878 (9 Cir. 1979) (per curiam), cert. denied, 444 U.S. 945, 100 S.Ct. 306, 62 L.Ed.2d 314 In Mendez-Rodriguez, the district court denied a m......
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...a valid "knowing and intelligent waiver of the right to retain a deportable alien witness," as required by United States v. Lujan-Castro, 602 F.2d 877, 878 (9th Cir.1979) (per curiam). After an evidentiary hearing and a review of the videotapes of the witness statements, the district court ......
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...alien witnesses as established in United States v. Mendez-Rodriguez (9th Cir.1971) 450 F.2d 1, 4-5. The court in United States v. Lujan-Castro, supra, 602 F.2d at pages 878-879, declined the defendant's invitation to establish as a predicate for such a waiver the presence of a magistrate, a......
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Table of cases
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