United States v. Ruiz-Lopez

• Decision Date: 25 April 2014
• Docket Number: No. 13–10093.,13–10093.
• Citation: 749 F.3d 1138
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Luis RUIZ–LOPEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

749 F.3d 1138

UNITED STATES of America, Plaintiff–Appellee,

v.Luis RUIZ–LOPEZ, Defendant–Appellant.

No. 13–10093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2014.

Filed April 25, 2014.

Karen L. Landau (argued), Oakland, CA, for Defendant–Appellant.

Susan B. Gray (argued), Assistant United States Attorney, Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, Department of Justice, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Lucy Koh, District Judge, Presiding. D.C. No. 5:11–cr–00749–LHK–1.

Before: M. MARGARET McKEOWN and RONALD M. GOULD, Circuit Judges, and GORDON J. QUIST, Senior District Judge.^*

OPINION

GOULD, Circuit Judge:

Luis Ruiz–Lopez, convicted of illegal reentry following deportation under 8 U.S.C. § 1326(a) and (b), seeks a judgment of acquittal. He claims that the government did not present evidence sufficient to prove his alienage beyond a reasonable doubt. Because we conclude that sufficient evidence supported the jury's finding of alienage, we affirm the district court's denial of a judgment of acquittal.

I

In December 2002, Ruiz–Lopez was interviewed in the Solano County Jail in Fairfield, California by Department of Homeland Security (“DHS”) Agent Axel Sauter. From 1997 to 2002, Agent Sauter was assigned “to interview aliens encountered in the United States to determine their status,” and he conducted about 600 interviews a year. Although not fluent in Spanish, Agent Sauter received Spanish lessons as part of his training and did “more than half” of his interviews at the Solano County jail in Spanish. It was his “regular practice” to terminate the interview if language proved to be a barrier to communication. Agent Sauter conducted each interview the same way according to his “pattern and practice.” He would take handwritten notes during the interview, and then type those notes and enter them onto a Record of Deportable/Inadmissible Alien form (“Form I213”) within a day. None of the information entered onto the Form I–213 was taken from state or federal indices or filled in before the interview, although Agent Sauter would look at such indices before an interview to confirm any relevant information.

Ruiz–Lopez was arrested in 2011 in Northern California. During Ruiz–Lopez's jury trial for illegal reentry, Agent Sauter testified that he could not remember Ruiz–Lopez, but Agent Sauter recognized his own signature and name on Ruiz–Lopez's Form I–213. The Form I–213 relating to Ruiz–Lopez was created following Agent Sauter's usual pattern and practice.

Agent Sauter testified that Ruiz–Lopez told him that: (1) he “was born in Zamora, Michoacan, Mexico”; (2) in 1997, Ruiz–Lopez entered the United States near Nogales, Arizona, without inspection after having used the services of a “coyote,” or smuggler, for the price of $800; and (3) his father and mother were both born in Mexico, but they were in the United States as lawful permanent residents. Ruiz–Lopez said that he did not fear persecution if he returned to Mexico, that he had no pending application for status in the United States, and that his parents had not applied for any kind of benefit on his behalf.

Agent Courtney Norris of the Immigration and Customs Enforcement (“ICE”) testified about the documents in Ruiz–Lopez's A-file, which is the “official record for an individual” recording “all of that individual's contacts or encounters with Immigration Customs Enforcement, Citizenship and Immigration Services, Custom and Border Protection, and the Legacy INS.” Ruiz–Lopez's A-file contained the following documents: (1) the Form I–213; (2) a Notice of Intent to Issue a Final Administrative Removal Order (“Form I–851”); (3) a Final Administrative Removal Order (“Form I–851A”); (4) a Warning to Alien Ordered Removed or Deported, in English and Spanish (“Form I294”); and (5) a Warrant of Removal/Deportation (“Form I205”).

The Form I–851 was served on Ruiz–Lopez nineteen days before his removal. It notified him that the INS had determined that he was subject to expedited administrative removal based on allegations that he was not a citizen or national of the United States, was a native and citizen of Mexico, had entered the United States near Nogales, Arizona, without inspection, and was not eligible for any statutory relief from deportation. That form also had a section titled “Your Rights and Responsibilities” that told Ruiz–Lopez of his rights, and he acknowledged receipt of that notice by signing it at the top of the second page, using his alias Luis Rodriguez. At the bottom of that page, the box admitting the allegations and waiving his right to contest the charges or petition for review of the Final Removal Order had been prechecked. Ruiz–Lopez's signature and fingerprint on that Form I–851 were witnessed by a detention officer.

The other forms were also served on Ruiz–Lopez. The Form I–294 was served on Ruiz–Lopez in both English and Spanish, and it told him that he had been found deportable, that he was time barred from reapplying for permission to enter the United States, and of the legal consequences if he were to reenter illegally. On both the English and Spanish forms, Ruiz–Lopez hand-marked and initialed boxes acknowledgingreceipt, signed them, and attached fingerprints. Agent Norris admitted that sometimes the boxes detailing that the form had been explained do not get checked, but “the pattern and practice is to explain [the form].”

Ruiz–Lopez's Record of Sworn Statement, taken after his arrest in 2011, was also admitted in evidence with redaction. Agent Norris testified that in the area describing languages spoken by Ruiz–Lopez, the Spanish box had been pre-printed as checked, but the English box was checked by hand and the form specified that an interpreter was not used.

At the close of the government's case, Ruiz–Lopez moved for judgment of acquittal under Federal Rule of Criminal Procedure 29 based on insufficient evidence establishing that he was an alien. The district court denied this motion. After the guilty verdict, the motion was renewed and again denied.

II

We review de novo the district court's denial of a motion for judgment of acquittal based on insufficient evidence. United States v. Acosta–Sierra, 690 F.3d 1111, 1117 (9th Cir.2012). Under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we view the evidence in the light most favorable to the prosecution, and then determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir.2010) (en banc). This standard, protecting the key role of the jury in determining guilt or innocence of crime, cannot be met by a person convicted in jury trial, when the jury heard evidence that would permit it to find guilt beyond a reasonable doubt on all the essential elements of the crime.

Ruiz–Lopez contends that the evidence presented at trial was insufficient for a jury to find his alienage beyond a reasonable doubt. To be convicted of illegal reentry under 8 U.S.C. § 1326, the government must prove that “the defendant was an alien at the time of the defendant's entry into the United States.” Ninth Circuit Criminal Jury Instruction 9.8 (2010). “[N]either a deportation order, nor the defendant's own admissions, standing alone,” is sufficient to prove alienage. United States v. Ramirez–Cortez, 213 F.3d 1149, 1158 (9th Cir.2000) (internal citations omitted); see also United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir.1997).

We conclude that the evidence presented was sufficient to find the requisite alienage. Ruiz–Lopez argues that United States v. Ortiz–Lopez, 24 F.3d 53 (9th Cir.1994), is controlling. In...