USA. v. Ponce

• Decision Date: 05 August 1999
• Docket Number: No. 98-50606,D,ESPARZA-PONC,98-50606
• Citation: 193 F.3d 1133
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CECILIOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1133

193 F.3d 1133 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CECILIO ESPARZA-PONCE, Defendant-Appellant.

No. 98-50606

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 5, 1999--Pasadena, California

Decided October 19, 1999

[Copyrighted Material Omitted]

Steven F. Hubachek, Benjamin L. Coleman, Federal Defenders of San Diego, Inc., San Diego, California, for the appellant.

John H. Gomez and Jennifer E. Braccia, Assistant United States Attorneys, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding. D.C. No. CR-97-03552-JSR.

Before: Cynthia Holcomb Hall and Thomas G. Nelson, Circuit Judges, and James Ware,¹ District Judge.

T.G. NELSON, Circuit Judge:

Cecilio Esparza-Ponce appeals his conviction and sentence for violation of 8 U.S.C. S 1326 (unlawful reentry by a deported alien) and 18 U.S.C. S 911 (false claim of U.S. citizenship). He raises three principal issues: denial of due process in his deportation proceedings, the claimed over breadth of 18 U.S.C. S 911 and violation of the Vienna Convention on Consular Relations.² We have jurisdiction pursuant to 28 U.S.C. S 1291 and affirm.

FACTS AND PROCEDURAL HISTORY

On October 10, 1997, Esparza-Ponce attempted to enter the United States claiming to be a U.S. citizen born in San Diego, when in fact, he is a native and citizen of Mexico. An inspection at the port of entry revealed that Esparza-Ponce had been deported and removed to Mexico earlier on that same day as an alien who had been convicted of two crimes involving moral turpitude. Following his arrest, Esparza-Ponce was interrogated, but he was not informed of his right to contact the Mexican Consulate pursuant to the Vienna Convention on Consular Relations. During the interrogation, Esparza-Ponce made incriminating statements.

A complaint was filed on October 12, 1997, charging Esparza-Ponce with attempting to enter the United States after deportation in violation of 8 U.S.C. S 1326. A superceding indictment added the charge of falsely claiming U.S. citizenship in violation of 18 U.S.C. S 911.

During pretrial proceedings, Esparza-Ponce filed several motions, including a motion to dismiss the indictment based on a collateral attack on the underlying deportation and a motion to suppress incriminating post-arrest statements. The district court denied those motions in a published decision. See United States v. Esparza-Ponce, 7 F. Supp. 2d 1084 (S.D. Cal. 1998).

After the jury returned guilty verdicts on both counts of the superseding indictment, Esparza-Ponce moved to set aside the verdict as to count two, claiming that 18 U.S.C.S 911 is unconstitutionally over broad. The district court denied this motion.

ANALYSIS

A. The Deportation Proceeding³

We review the district court's denial of Esparza-Ponce's collateral attack of his original deportation procedures de novo. See United States v. Jimenez-Marmolejo , 104 F.3d 1083, 1085 (9th Cir. 1996). To succeed in his collateral challenge, Esparza-Ponce must show he was prejudiced by the procedural inadequacies he asserts. See United States v. ProaTovar, 975 F.2d 592, 595 (en banc) (9th Cir. 1992) ("A defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. S 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice.") To meet his burden of showing prejudice, Esparza-Ponce must demonstrate that he had plausible grounds for relief from deportation. See Jimenez-Marmolejo, 104 F.3d at 1085.

Esparza-Ponce asserts that prejudice is shown because he was denied the opportunity to prove that his petty theft conviction would not qualify as a crime involving moral tur-pitude. This circuit has not specifically addressed the substance of Esparza-Ponce's argument. We have, however, stated that "[t]heft is a crime of moral turpitude," United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir. 1980), overruled on other grounds, Proa-Tovar, 975 F.2d at 595; that "[l]awful admission . . . is not available to aliens who have committed a crime of moral turpitude, which includes theft," Lopez-Vasquez, 1 F.3d 751, 755 n.8 (9th Cir. 1993); and that "[c]rimes in which fraud is an ingredient have always been regarded as involving moral turpitude," Burr v. INS, 350 F.2d 87, 91 (9th Cir. 1965).⁴

In addition to these statements in our own cases, every other circuit that has addressed the question in the context of the immigration laws has concluded that petty theft is a crime involving moral turpitude for purposes of those laws. See, e.g., Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980) ("It has been long acknowledged by this Court and every other circuit that has addressed the issue that crimes of theft, however they may be technically translated into domestic penal provisions, are presumed to involve moral turpitude."); Soetarto v. INS, 516 F.2d 778, 780 (7th Cir. 1975) ("Theft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen."); Ablett v. Brownell, 240 F.2d 625, 630 (D.C. Cir. 1957) ("[P]etty theft [is] a crime which does involve moral turpitude within the meaning of the immigration laws.").

Further, contrary to Esparza-Ponce's statement that the Board of Immigration Appeals ("BIA") has not addressed the question, the BIA has several times held that petty larceny is a crime involving moral turpitude.⁵ See, e.g., Morales Alvarado, 655 F.2d at 174 ("The [BIA] held that both convictions [of indecent liberties and petty theft] were crimes of moral turpitude."); In re De La Nues, 18 I. & N. Dec. 140, 145 (BIA 1981) ("Burglary and theft or larceny, whether grand or petty, are crimes involving moral turpitude."); In re Scarpulla, 15 I. & N. Dec. 139, 140-41 (BIA 1974) ("It is well settled that theft or larceny, whether grand or petty, has always been held to involve moral turpitude.").

Finally, Esparza-Ponce makes a cursory argument that the cases relied on by the district court--Soetarto and Ablett--are old and do not involve California's petty theft statute. Esparza-Ponce has not, however, cited any cases departing from Soetarto and Ablett. Moreover, the current version of California's petty theft statute simply defines grand theft as being theft of property in excess of a certain value or of certain kinds of property. See Cal. Penal CodeS 487. But theft of property not involving those amounts or types of property is not separately defined. Since the elements of petty theft are the same as theft in general, the element of moral turpitude would continue to be present whether the theft be petty or grand.

Esparza-Ponce has failed to show that, on direct appeal of the deportation order, he could have presented plausible grounds for relief from deportation. He has thus failed to demonstrate that he was prejudiced by any procedural inadequacies in his deportation proceedings and his collateral attack of his deportation order therefore fails. See Jimenez Marmolejo, 104 F.3d at 1085.

B. False Claim of Citizenship

Esparza-Ponce falsely claimed to be a U.S. citizen when apprehended. Esparza-Ponce argues here, as he did in the district court, that 18 U.S.C. S 911,⁶ which he was convicted of violating by making a false claim of U.S. citizenship, is overly broad. His argument is summed up in a statement in his brief: The statute "does not require that the false claim be made in a federal immigration matter, a federal matter, or even any other governmental matter." He points to several hypothetical examples of S 911's broad reach potentially chilling speech at political rallies, grocery stores, country clubs and cocktail parties.

While a defendant generally may not challenge a statute on the grounds that it "may conceivably be applied unconstitutionally to others, in other situations not before the court," United States v. Cheely, 36 F.3d 1439, 1443 n.10 (9th Cir. 1994) (citations omitted), in certain circumstances a defendant may bring an over breadth challenge based on First Amendment grounds. The Supreme Court has instructed that the

over breadth doctrine . . . is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial over breadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) (emphasis added).

This court has already placed a limiting construction on the predecessor of S 911,8 U.S.C. S 746(a)(18).⁷ In Smiley v. United States, 181 F.2d 505 (9th Cir. 1950), we stated:

Congress used broad language in making misrepresentations of citizenship an offense. Taken in a literal sense the language of the statute is sufficiently broad to make it a crime for anyone to knowingly and falsely represent himself to be a citizen of the United States without regard to whether or not the person to whom the false statement is made had good reason to inquire into the nationality status of the party. The courts have placed the latter interpretation on the language and we agree such an interpretation is reasonable . . . .

Id. at 507-08. This limiting construction is consistent with the Second Circuit's decision in United States v. Achtner, 144 F.2d 49 (2d Cir. 1944):

[R]epresentation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody.

Id. at 52.

Esparza-Ponce argues that this limiting construction on the statute is not applicable to S 911 because these cases involved the predecessor statute, 8 U.S.C. S 746(a)(18). As the Fifth Circuit has recognized...