U.S. v. Ramirez-Lopez
| Decision Date | 10 January 2003 |
| Docket Number | No. 01-50164.,01-50164. |
| Citation | 315 F.3d 1143 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan RAMIREZ-LOPEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark S. Windsor, San Diego, CA, for the defendant-appellant.
John M. Parmley, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California, Napolean A. Jones, District Judge, Presiding. D.C. No. CR-00-00852-NAJ.
Before KOZINSKI and GOULD, Circuit Judges, and CEBULL,* District Judge.
Opinion by Judge CEBULL; Dissent by Judge KOZINSKI
Juan Ramirez-Lopez (Ramirez-Lopez) seeks reversal of his jury conviction for criminal violations 8 U.S.C. § 1324(a)(1)(A)(i), (a)(1)(A)(ii), (a)(1)(B)(iv), and (a)(2)(B)(ii) (). He was sentenced to a term of seventy-eight (78) months. On appeal, the Defendant raises a number of issues, specifically, whether (1) the Defendant's due process and compulsory process rights were violated when the Government removed witnesses from the United States before Defense Counsel could interview them because Ramirez-Lopez failed to demonstrate either bad faith by the Government or prejudice to his case; (2) inadmissible evidence and improper argument by the Government occurred at trial that would constitute reversible error; (3) cumulative errors occurred at trial as to justify reversible error; (4) whether 8 U.S.C. § 1324 is unconstitutional in light of the U.S. Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (5) whether evidence of mens rea as it relates to death is a required element in finding guilt under 8 U.S.C. § 1324(a)(1)(B)(iv).
On March 6, 2000, Defendant-Appellant Ramirez-Lopez was arrested with fourteen others who had crossed the border into the United States from Mexico through the mountains of eastern San Diego County. During that crossing, due to inclement weather, a member of the party died of hypothermia. Upon placement in custody, Appellant Ramirez-Lopez was taken to the hospital for frostbite and subsequently interviewed. During his interview by border patrol agents, he waived his Miranda rights as well as his Lujan-Castro right to retain otherwise deportable witnesses. During that same interview, he denied being the leader of the group.
When border patrol agents interviewed the other fourteen members of the group, two of the members inculpated Ramirez-Lopez as the guide or leader of the group while the remaining members exculpated him, denying that he was the guide. Rather, they stated that their guide had abandoned them or that they did not have a guide. Pursuant to the Defendant's Lujan-Castro waiver, the border patrol returned all but five of the witnesses. The Government did not ascertain the exact home addresses of the deported witnesses. Border Patrol officers retained two witnesses that inculpated Ramirez-Lopez and three that exculpated his involvement as a guide.
Prior to trial, Ramirez-Lopez made a number of motions in limine. Specifically, he moved for dismissal on various grounds including (1) the involuntary waiver of his Miranda and Lujan-Castro rights; (2) the unconstitutionality of the charges against him in light of Apprendi v. New Jersey; and (3) the unreasonable delay between custody and arraignment. The district court denied the Defendant's motions.
I. Were Ramirez-Lopez's Due Process and Compulsory Process Rights Violated When the Government Removed Witnesses from the United States Before Defense Counsel Could Interview Them?
Appellant Ramirez-Lopez contends that the district court erred when it failed to dismiss the indictment (1) because he had not voluntarily and intelligently waived his Miranda and Lujan-Castro rights; and (2) due to the delay in arraignment. Further, he contends that the government violated his rights under the Due Process Clause of the Fifth Amendment and Compulsory Due Process Clause of the Sixth Amendment when they deported nine witnesses that had exculpatory and material testimony regarding his role in the offense charged. The denial of a motion to dismiss based on a violation of constitutional rights is reviewed de novo. United States v. Lam, 251 F.3d 852, 855 (9th Cir.2001) (Sixth Amendment); United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001) (Due Process).
In determining whether a voluntary and intelligent waiver of Ramirez-Lopez's Miranda and Lujan-Castro rights was had, the district court held an evidentiary hearing on the Defendant's motion to suppress the waivers and a motion to dismiss the indictment. At that hearing, Ramirez-Lopez argued that he did not waive his Miranda rights nor did he waive his Lujan-Castro right to retain otherwise deportable witnesses. Ramirez-Lopez acknowledges that he was advised of his Miranda and Lujan-Castro rights and did voluntarily sign both waivers, but he contends that they were not done knowingly or intelligently.
Specifically, he argues that at the hearing, he testified that he had little education; that he could not read or write; that he had just been hospitalized for frostbite on his feet; and that in another case involving a group of aliens seized that same day and in that same area, the Government had detained all eight witnesses, all of whom provided inculpatory information regarding a Defendant in a different case.1
Subsequent to the hearing, the district court denied Ramirez-Lopez's motion to suppress the Miranda and Lujan-Castro waiver. The district court found that the Government had a fluent Spanish-speaking agent interviewing Ramirez-Lopez, that Ramirez-Lopez was responsive and understood the questions asked of him and that Ramirez-Lopez made no mention of any pain during the interview.
Motions to suppress are reviewed de novo. United States v. Percy, 250 F.3d 720, 725 (9th Cir.2001). On the aforementioned facts, the district court held that Ramirez-Lopez's waivers were made knowingly, intelligently and voluntarily. A review of the record reveals that the district court's findings supporting Ramirez-Lopez's Miranda waiver were more detailed than those upholding the Lujan-Castro waiver. Given that the waivers were made within the same interview and time frame, we impute the district court's Miranda findings to the Ramirez-Lopez's Lujan-Castro waiver and hold the district court's failure to make a more detailed finding, as to Ramirez-Lopez's Lujan-Castro waiver, harmless.
In addition, Ramirez-Lopez contends that when he waived his Lujan-Castro right, he was not assisted by counsel and was not informed as to how the witnesses might be used nor to what facts the witnesses might testify. Whether a waiver was knowingly and intelligently made is reviewed for clear error. United States v. Amano, 229 F.3d 801, 803 (9th Cir.2000). A reading of United States v. Lujan-Castro reveals no stated requirements that assistance of counsel is necessary before a waiver of a Lujan-Castro right can be had, so long as the waiver is made knowingly, intelligently and voluntarily. 602 F.2d 877 (9th Cir.1979). Moreover, a defendant need not understand all the possible consequences that would flow from waiving a right in order to execute a valid waiver. Derrick v. Peterson, 924 F.2d 813, 824 (9th Cir.1990). Upon review, we find that the district court did not commit clear error by finding that Ramirez-Lopez knowingly and intelligently waived his right to detain deportable alien witnesses.
Ramirez-Lopez alleges that the district court erred when it failed to dismiss or, in the alternative, suppress incriminating statements due to delay in arraignment. We review the district court's ruling for clear error. United States v. Padilla-Mendoza, 157 F.3d 730 (9th Cir. 1998). Ramirez-Lopez was taken into custody at approximately 10:30 a.m. on March 6, 2000. That same day, the Mexican consulate came and spoke to him. Also on that day, agents spent time trying to identify the dead body that was found. At approximately 7:40 p.m, the agents gave Miranda warnings to Ramirez-Lopez and began interviewing him. Prior to his arraignment, the agents did not interview him again. Although Ramirez-Lopez did not confess at the interview, he did make incriminating statements. Agents spent the next day preparing the complaint and interviewing multiple material witnesses. He was not arraigned until 10:07 a.m. on March 8, 2000. On the morning of March 8, 2000, the magistrate judge reviewed the Government's complaint and found probable cause for its support.
Ramirez-Lopez contends the resulting delay of almost 48 hours from custody to arraignment was clearly for the purposes of interrogation and justified a dismissal of the indictment for unreasonable and unnecessary delay or, at the very least, suppression of any incriminating statements he may have made. As Ramirez-Lopez received his probable cause determination within 48 hours, he carries the burden of proving that the border patrol agents unnecessarily delayed the hearing in order to interrogate him. Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)).
Federal Rule of Criminal Procedure 5(a) requires "[a]n officer making an arrest under a warrant ... [to] take the arrested person without unnecessary delay before the nearest available magistrate judge...." United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir.1996). This requirement is balanced against the presumption that a complaint reviewed by a magistrate judge within 48 hours of arrest is...
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...to the jury, that they are forced to listen to evidence that tells them nothing at all new." United States v. Ramirez-Lopez, 315 F.3d 1143, 1173 (9th Cir.2003) (Kozinski, J., dissenting) (citations omitted) (emphasis added), majority opinion withdrawn, 327 F.3d 829 The pre-October 5 email c......