United States v. Zepeda-Rodriguez

• Decision Date: 29 April 2022
• Docket Number: 19-MJ-24357-LL-TWR
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE LUIS ZEPEDA-RODRIGUEZ, Defendant-Appellant.
• Court: U.S. District Court — Southern District of California

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOSE LUIS ZEPEDA-RODRIGUEZ, Defendant-Appellant.

No. 19-MJ-24357-LL-TWR

United States District Court, S.D. California

April 29, 2022

ORDER (1) VACATING CONVICTION, AND (2) REMANDING TO MAGISTRATE JUDGE

(ECF Nos. 51, 57)

Honorable Todd W. Robinson United States District Judge

Presently before the Court is Defendant-Appellant Jose Luis Zepeda-Rodriguez's Appeal, (see ECF No. 57), of the October 29, 2020 Judgment in a Criminal Case finding him guilty of attempted illegal entry into the United States under 8 U.S.C. §1325(a)(1) and sentencing him to time served. (See EFC No. 51 (the “Judgment”).) Zepeda-Rodriguez challenges the conviction on four grounds: (1) the government failed to prove the element of alienage because the arresting agent never testified that Zepeda-Rodriguez stated he was not a United States citizen, (see ECF No. 65 (“AOB”) at 1, 7-10); (2) the prosecutor presented no evidence that Zepeda-Rodriguez knew he was not a citizen, (see id. at 1, 10-11); (3) the Honorable Linda Lopez erred in allowing the arresting officer to testify to his translation of Zepeda-Rodriguez's field statements because the translation was hearsay and unqualified expert testimony, (see id. at 1, 11-14); and (4) Zepeda-Rodriguez's prosecution violated equal protection because he was treated differently than similarly

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situated citizens, (see id. at 1, 14, 22-25), and because Congress passed § 1325 with a discriminatory intent. (See id. at 1, 14-22.) Plaintiff-Appellee the United States of America filed a responsive brief, (see ECF No. 68 (“RB”)), and Zepeda-Rodriguez filed a reply. (See ECF No. 70 (“ARB”).) The Court has jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3402 and determines that this matter is suitable for determination on the papers without oral argument. Having carefully reviewed the Parties' briefs, the record, and the relevant law, the Court VACATES Zepeda-Rodriguez's conviction based on insufficient evidence of alienage but DENIES Zepeda-Rodriguez's appeal as to his remaining arguments and REMANDS this case to the magistrate for further proceedings.

BACKGROUND

I. Evidence Introduced at Trial

On November 9, 2019, United States Border Patrol Agent Joshua Ewers was working a 5 a.m. to 3 p.m. shift in the Pacific Crest Trail (“PCT”) marker area in El Cajon station, the station in which he had been working for over eleven years. (See ECF No. 64 (“Trial Tr.”) at 10:1-7, 10:15-17, 13:13-16, 13:22-14:3, 14:22-25, 37:21-38:4, 51:14-16.) The area is “[v]ery mountainous, rugged terrain, [with] thick brush, ” (see Id. at 10:21-22), although the city of Campo is approximately one mile away, (see id. at 39:16-20), and Highway 94 is approximately one mile north. (See id. at 33:12-21.) The PCT is a popular hiking trail that begins in Campo and runs north to the Canadian border, (see id. at 30:25-31:5, 31:10-19, 41:11-42:6, 43:5-23), and there is an event center approximately a half-mile away. (See id. at 31:21-25, 38:24-39:1, 40:16-25.) There is no port of entry in El Cajon station, (see id. at 10:23-24), and the nearest port of entry is approximately nine-and-a-half miles to the west in Tecate, California. (See id. at 23:14-16, 33:22-34:5.)

Agent Ewers' assignment in the PCT marker area that day was to patrol a dirt road running parallel to the United States and Mexico international border fence for “footprints, disturbances in the dirt indicating that something had crossed the road.” (See id. at 15:3-21.) At approximately 12:30 p.m., (see id. at 35:9-11, 37:11-12, 53:23-24, 59:7-8),

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Agent Ewers “detected several steps of fresh footprints at the United States Border that appeared to be coming from Mexico and going north into the brush on the border road.” (See id. at 16:11-17; see also id. at 17:6-17.) Although the area is busy, (see id. at 49:12-15), Agent Ewers knew from experience that the footprints were fresh because of their “color” and the fact that there were no tire tracks on top of the footprints. (See id. at 34:21-35:3, 36:6-8, 62:18-24.) Agent Ewers followed the footprints north for approximately ten minutes until he was approximately 250 yards north of the international border, (see id. at 17:18-18:5, 23:7-10, 59:9-10), and approximately 250 feet from the monument marking the start of the PCT trial, (see id. at 42:22-43:4, 44:9-11, 49:6-11), at which point he came across eight subjects laying down and trying to hide in the thick brush, (see id. at 18:5-15, 62:7-11), one of whom Agent Ewers identified as Zepeda-Rodriguez. (See id. at 23:22-24:8.) Zepeda-Rodriguez did not have any hiking or camping equipment, (see id. at 32:5-23, 44:15-17), or a hiking permit. (See id. at 62:12-14.) In his eleven years working in El Cajon station, Agent Ewers has never encountered a United States citizen or anybody else with legal status laying in the brush in that area. (See id. at 33:5-10.)

At this point, Agent Ewers conducted an immigration inspection in Spanish.^[1] (See id. at 24:10-12, 25:23-26:2.) He asked the group questions and elicited responses from

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each individual. (See id. at 26:3-7.) Agent Ewers asked what country each person was a citizen of, (see id. at 26:8-11); whether they had immigration documents to be lawfully present in the United States, (see id. at 27:15-18); and whether they knowingly entered the United States illegally. (See id. at 27:24-28:1.) Zepeda-Rodriquez responded that he did not have immigration documents to be in the United States lawfully and that he had knowingly entered the United States illegally.^[2] (See id. at 27:22-23, 28:2-3.) Agent Ewers then arrested Zepeda-Rodriguez, (see id. at 28:4-5), and arranged for him to be transported to the station for processing. (See id. at 28:18-24.)

A subsequent search of the TECS database revealed no records that Zepeda-Rodriguez had crossed through any ports of entry. (See id. at 69:9-71:3.)

II. Procedural Background

The United States charged Zepeda-Rodriguez with improper attempted entry under 8 U.S.C. §1325(a)(1) on November 12, 2019. (See generally ECF No. 1 (“Compl.”).) At his initial appearance, Magistrate Judge Robert N. Block ordered Zepeda-Rodriguez detained without prejudice pending trial, (see ECF Nos. 3, 6), and appointed Zepeda-Rodriguez counsel, (see ECF No. 3), with Chloe S. Dillon of Federal Defenders entering an appearance as lead counsel on December 3, 2019. (See generally ECF No. 5.) Magistrate Judge Robert A. McQuaid held a status hearing on November 15, 2019, (see ECF No. 7), at which he allowed Zepeda-Rodriguez to be released on bond pending trial. (See generally ECF Nos. 7-10.)

Zepeda-Rodriguez's case was transferred to Judge Lopez on November 21, 2019, (see ECF No. 11), and proceeded under the “Streamline” process, (see ECF No. 15-1 at 3-4), which, at that time, the United States Department of Justice (“DOJ”) used to prosecute misdemeanor illegal entry charges under § 1325. See United States v. Chavez-Diaz, No. 18MJ20089 AJB, 2018 WL 9543024, at *1-2 (S.D. Cal. Oct. 30, 2018), rev'd on other grounds, 949 F.3d 1202 (9th Cir. Feb. 5, 2020). Following a status hearing before

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Judge Lopez on December 3, 2019, (see ECF No. 14), Zepeda-Rodriguez moved to dismiss the Complaint, suppress statements, and grant leave to file further motions. (See generally ECF No. 15 (“1st MTD”).) As is relevant to the instant appeal, Zepeda-Rodriguez argued that dismissal was required because his prosecution in Streamline court violated equal protection, (see ECF No. 15-1 at 3-4), and the charging document did not allege that Zepeda-Rodriguez knew he was not a United States citizen, (see id. at 4-5), and for suppression of Agent Ewers' translation of Zepeda-Rodriguez's field statements as inadmissible as hearsay and unqualified expert testimony. (See id. at 13-17.) At a February 27, 2020 hearing, Judge Lopez denied Zepeda-Rodriguez's requests for dismissal “for the reasons stated in 19cr2894 and 19cr3058” but deferred ruling on his motion to suppress until trial. (See ECF No. 21.)

Following several continuances related to COVID-19, (see ECF Nos. 23-26, 30-34), Judge Lopez held a motion hearing on July 30, 2020, at which time she set a bench trial for October 28, 2020. (See ECF No. 42.) On September 1, 2020, Zepeda-Rodriguez filed a second motion to dismiss that, as is relevant to this appeal, sought dismissal on the grounds that his prosecution violated equal protection under Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). (See ECF No. 43 (“2d MTD”) at 2-15.) Judge Lopez denied Zepeda-Rodriguez's Second Motion to Dismiss on October 23, 2020. (See generally ECF No. 46.)

At the October 28, 2020 bench trial, the prosecution offered the testimony of two witnesses: Agent Ewers, (see Trial Tr. at 9:10-64:11), and Officer Norman. (See id. at 67:8-72:3.) Zepeda Rodriguez's lead trial counsel, Salil Dudani, renewed his motion to suppress Agent Ewers' testimony regarding his translation of Zepeda-Rodriguez's field statements several times. (See id. at 8:16-20, 26:12-14, 64:21-66:13.) Judge Lopez initially indicated that she “didn't think [Agent Ewer'] needed to be noticed as an expert because he didn't provide expert testimony, ” (see id. at 66:14-18), and that her ruling would be based on Agent Ewers' “ability to understand the [Spanish] language for purposes of whatever interaction he's going to claim he had with the Defendant in this case.” (See

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id. at 8:21-9:5.) After hearing Agent Ewers' testimony, Judge Lopez reasoned that Agent Ewers “has established...