US v. Guiterrez-Alba, CR. No. 95-01182 DAF.
| Decision Date | 25 June 1996 |
| Docket Number | CR. No. 95-01182 DAF. |
| Citation | 929 F. Supp. 1318 |
| Parties | UNITED STATES of America, Plaintiff, v. Jose Juan GUITERREZ-ALBA, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Alexander Silvert, Office of the Federal Public Defender, Honolulu, HI, for Jose Juan Gutierrez-Alba.
Omer G. Poirier, United States Attorneys Office, Honolulu, HI, for U.S.
ORDER GRANTING GOVERNMENT'S MOTIONS IN LIMINE TO EXCLUDE EVIDENCE
The court heard the Government's Motions in Limine on June 21, 1996. Assistant United States Attorney Omer Poirier appeared on behalf of Plaintiff United States of America (the "Government"); Assistant Public Defender Alexander Silvert, appeared on behalf of Defendant Jose Juan Guiterrez-Alba ("Defendant"). After reviewing the motions and the supporting, opposing and supplemental memoranda, the court GRANTS the Government's Motions in Limine to Exclude Evidence Regarding the Legality of Deportation and to Exclude Evidence Regarding Defendant's Receipt of Amnesty.
On December 21, 1995, Defendant was indicted for unlawfully entering the United States after having been previously deported for a felony conviction (grand theft auto), in violation of 8 U.S.C. § 1326(b).
The felony conviction underlying his deportation involves automobile theft in Idaho. In 1987, Defendant told authorities that he was over 18 years of age, thus the court convicted and sentenced him as an adult for Grand Theft Auto. No juvenile proceedings were ever initiated. And to date, Defendant has not appealed his felony conviction.1
Following his conviction, a prison guard apparently learned that the Defendant was 17 years of age and reported this information to the Immigration and Naturalization Service prior to the deportation hearing. INS did not act on this unofficial "information" and proceeded to deport Defendant on two bases: (a) he had a valid felony conviction, and (b) he was an illegal alien who entered the United States without inspection. Defendant has indicated that he intends to introduce evidence at trial showing that the criminal conviction cannot form the basis for deportation because the state court of Idaho that convicted him as an adult was not a court of competent jurisdiction. The instant motion in limine by the Government concerns the admissibility of evidence regarding the legality of Defendant's deportation at trial.
Also at the motions in limine hearing, Defendant indicated that as part of his defense at trial, he intended to introduce this evidence establishing that he had been granted amnesty, albeit illegally, to remain in the United States. The Government objects to the introduction of this evidence as irrelevant to the charges at hand. The court will treat the admissibility of amnesty evidence as a separate motion in limine for the purposes of clarity and order.
The Government moves in limine to exclude evidence regarding the propriety of Defendant's deportation. It makes two arguments for exclusion. First, the Government argues the lawfulness of deportation is not an element of an 8 U.S.C. § 1326 prosecution. Second, it maintains that evidence on this issue is essentially a collateral attack on the validity of his prior deportation, which is a matter for the court, not for the jury.
Defendant cites United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) and its progeny for the proposition that the lawfulness of a prior deportation is an element of a section 1326 offense. See, i.e., United States v. Ibarra, 3 F.3d 1333, 1334-1335 (9th Cir.1993), cert. denied, 510 U.S. 1205, 114 S.Ct. 1327, 127 L.Ed.2d 675 (1994). Defendant claims that he does not intend to attack the validity of the conviction itself, but rather INS's dependency on that conviction. Defendant contends that this matter presents a mixed question of law and fact which must be submitted to the jury for consideration. See United States v. Gaudin, ___ U.S. ___, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).
8 U.S.C. § 1326 states in relevant part:
Any alien who (1) has been arrested and deported or excluded and deported, and thereafter, (2) enters, attempts to enter, or is at any time found in, the United States ... shall be fined under Title 18, or imprisoned not more than 2 years, or both.
8 U.S.C. § 1326(a) (1996). The elements of the offense of unlawful reentry following deportation are (1) that defendant was an alien, (2) that defendant was deported, and (3) that he thereafter reentered the United States without permission. United States v. Barragan-Cepeda, 29 F.3d 1378 (9th Cir.1994).
The first question this court must decide here is whether lawful deportation is an element of a section 1326 offense. The court begins with the Supreme Court's decision in Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) as a starting point for this discussion. In that case, the Supreme Court2 flatly rejected the proposition that a "lawful deportation" is an element of the § 1326(a) offense of unlawful entry after deportation. Mendoza-Lopez, 481 U.S. at 834-37, 107 S.Ct. at 2152-55; see United States v. Aquino-Chacon, 905 F.Supp. 351, 353 (E.D.Va.1995). The Supreme Court conclusively held, "the text and background of § 1326 indicates no congressional intent to sanction challenges to deportation orders in proceedings under § 1326." Mendoza-Lopez, 481 U.S. at 837, 107 S.Ct. at 2154. The Supreme Court made a limited exception, however, to allow the validity of the deportation order to be contestable in a section 1326 prosecution where the deportation proceeding violates due process by effectively eliminating the right of the alien to obtain judicial review. Id. at 839, 107 S.Ct. at 2155-56.
A plain reading of the statute supports the Mendoza-Lopez holding. 8 U.S.C. § 1326(a) makes it crime to reenter the country after deportation; it does not, on its face, limit criminal sanctions only to those situations where the underlying deportation is lawful. See Mendoza-Lopez, 481 U.S. at 834-35, 107 S.Ct. at 2152-53.
There is murky language, however, in a 1993 Ninth Circuit opinion that seems to imply that the Ninth Circuit may require lawful deportation as an element of the offense. See Ibarra, 3 F.3d at 1334. The brief mention of the "lawfulness of deportation" in Ibarra appears to be non-binding dicta and is of little precedential value in this case, especially where the actual holding of Ibarra is directly contrary to Defendant's position here. Also, the court notes that Ibarra cites pre-Mendoza-Lopez case law which may no longer be valid for that proposition.3
Based on the statute and the binding Supreme Court precedent in Mendoza-Lopez, the court concludes that "an unlawful deportation" is not an element of a section 1326 prosecution. 8 U.S.C. § 1326 only requires that the defendant have been deported; despite the questionable language in Ibarra, the court declines to construe that statute as requiring "lawful deportation." The court therefore precludes Defendant from introducing evidence on the legality of the underlying deportation order as a matter of right to disprove an element of the crime.
The court must next determine whether Defendant should be allowed to introduce evidence regarding the legality of deportation on due process grounds. See Mendoza-Lopez, 481 U.S. at 837-839, 107 S.Ct. at 2154-56. The Supreme Court made clear that a deportation is subject to collateral attack in a section 1326(a) prosecution only where the deportation proceeding was so deficient that its use as a predicate for a criminal prosecution would violate a defendant's due process rights. Id. To collaterally attack a deportation order, Defendant must show that the deportation proceeding was so fundamentally flawed as to effectively foreclose judicial review. United States v. Contreras, 63 F.3d 852, 856 (1995). Also, in Aquino-Chacon, the court held that the validity of the deportation order is a question of law appropriately resolved by the court, not the jury. 905 F.Supp. at 353.
In Contreras, the Ninth Circuit indicated that a violation of INS procedure or the defendant's rights under immigration law, does not in and of itself give the defendant the right to collaterally attack his sentence. 63 F.3d at 856. He must show that he was effectively deprived of his right to judicial review and that he was prejudiced as a result of the violation. Contreras, 63 F.3d at 856-57. In Contreras, the court found no due process violation even though (a) the court explained his eligibility of relief from deportation in a group hearing, (b) the Government failed to translate certain off-the-record discussions between the immigration judge and INS counsel into Spanish, and (c) the defendant was deprived of his right to an in-person deportation hearing. Id. The Ninth Circuit agreed with the district court determination that these procedural deficiencies, separately or in sum, could not sustain a collateral attack on the deportation order because Defendant was not deprived of judicial review. Id. at 857.
In Ibarra, the district court granted the Government's motion in limine to exclude a collateral attack of the deportation at trial where the district court had earlier rejected Ibarra's argument that the deportation was unlawful, and where it held that there were no factual issues in dispute regarding the prior deportation. Id. The Ninth Circuit affirmed that ruling, placing emphasis on the fact that the legality of the prior deportation was a legal matter on which Ibarra had already made a record. Id.
In the instant case, Defendant was 17 years old at the time of his deportation proceedings, and thus was technically a "juvenile" under the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. § 5031. His collateral attack of the deportation order is based on his contention that the INS erroneously used the felony conviction as a basis for deportation in...
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