USA v. Ruelas-Arreguin

• Decision Date: 07 March 2000
• Docket Number: D,No. 99-50213,RUELAS-ARREGUI,99-50213
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRESefendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1056

219 F.3d 1056 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRES RUELAS-ARREGUIN, Defendant-Appellant.

No. 99-50213

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 7, 2000--Pasadena, California

Filed July 19, 2000

[Copyrighted Material Omitted] Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

David P. Curnow, Assistant U.S. Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding; D.C. No. CR-98-02100-NAJ

Before: J. Clifford Wallace, Harry Pregerson and Sidney R. Thomas, Circuit Judges.

THOMAS, Circuit Judge:

This appeal would seem to present a question from the realm of quantum physics: to what extent does existence depend on observation? Or, in our terms, is venue proper only where an alien is seen and arrested for being "found in" the United States in violation of 8 U.S.C. S 1326, or may he be prosecuted in the district where he illegally entered and traversed unseen? Applying the continuing offense doctrine, we conclude that venue is proper in either district and affirm the conviction. We remand for resentencing, however, because Ruelas-Arreguin was improperly denied an additional onelevel adjustment for acceptance of responsibility.

I

Ruelas-Arreguin is a native and citizen of Mexico who illegally returned to the United States after having been deported. Upon reentry, he was transported through Southern California undetected in the bed of a pickup truck traveling east towards Yuma, Arizona. INS border patrol agent Stephen Johnson was traveling westbound on Interstate 8 from Yuma to El Centro, California when he received a radio dispatch regarding a white pickup truck with a red stripe and camper shell heading eastbound on Interstate 8. Agent Johnson was approximately two miles within California when he received the radio message. He sighted the pickup truck, crossed the median, and began following the vehicle for five or six miles eastbound on Interstate 8 from California into Arizona. At this initial sighting, only the driver was visible.

After the vehicle stopped in the parking lot of a local restaurant in Yuma, Agent Johnson approached the vehicle to question the driver and, at that time, discovered numerous people, including Ruelas-Arreguin, laying on the floor of the truck bed. After he had established their Mexican citizenship, Agent Johnson arrested the occupants of the vehicle and arranged to have them transported to the Yuma border patrol station, where they were each interviewed by INS officials and processed through the IDENT system. When questioned at the Yuma station, Ruelas-Arreguin confirmed that he had been previously convicted for attempted murder. He also signed a sworn affidavit indicating that he was in the United States illegally after having been deported and that he had used a false name.

Thereafter, Ruelas-Arreguin was indicted in the Southern District of California on one count of being a deported alien found in the United States in violation of 8 U.S.C.S 1326. Following the government's case-in-chief, Ruelas-Arreguin presented no case other than a motion for judgment of acquittal under Fed. R. Crim. P. 29 ("Rule 29"). The district court deemed the Rule 29 motion timely but did not entertain it until after closing arguments and the reading of the jury instructions. In that motion, Ruelas-Arreguin argued that venue was improper in the Southern District of California because he was "found" for purposes of S 1326 in Arizona, not California.

The district court rejected the asserted grounds for acquittal but took the venue issue under submission. After the jury returned with a guilty verdict, the district court denied the venue portion of the Rule 29 motion without prejudice and asked for additional briefing by sentencing.

At the sentencing hearing, the district court denied the Rule 29 motion in its entirety without further explanation. The district court also rejected Ruelas-Arreguin's request for an additional one-level downward adjustment for acceptance of responsibility under U.S.S.G. S 3E1.1(b)(1). Instead, the district court awarded only a two-level reduction under U.S.S.G. S 3E1.1(a), observing that: "While Mr. Ruelas certainly is deserving of the minus 2 for acceptance, the additional point basically being a convenience factor to the parties involved, is not warranted and the court will not award the additional point." Ruelas-Arreguin was then sentenced to 63 months imprisonment, to be followed by 3 years of supervised release.

The district court had jurisdiction under 18 U.S.C.S 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. S 1291 and 18 U.S.C. S 3742. We review de novo the question whether venue was properly laid in the Southern District of California, see United States v. Childs, 5 F.3d 1328, 1331 (9th Cir. 1993), and we review the district court's decision to withhold an additional one-level adjustment under U.S.S.G. S 3E1.1(b) for clear error. See United States v. Villasenor-Cesar, 114 F.3d 970, 973 (9th Cir. 1997).

II

Initially, we must decide whether Ruelas-Arreguin preserved his objection to venue when he moved for a judgment of acquittal on grounds of improper venue at the close of the government's case. Consistent with the uniform decisions of our sister circuits, we conclude that he did.

If a defect in venue is clear on the face of the indictment, a defendant's objection must be raised before the government has completed its case. See Hanson v. United States, 285 F.2d 27, 28 (9th Cir. 1960). However, as numerous circuits have recognized, if the venue defect is not evident on the face of the indictment, a defendant may challenge venue in a motion for acquittal at the close of the government's case. See, e.g., United States v. Robinson, 167 F.3d 824, 829 (3d Cir.), cert. denied, 120 S. Ct. 118 (1999); United States v. Melia, 741 F.2d 70, 71 (4th Cir. 1984) (per curiam); United States v. Solomon, 29 F.3d 961, 964 (5th Cir. 1994); United States v. Brandon, 50 F.3d 464, 469 (7th Cir. 1995); United States v. Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979); United States v. Daniels, 5 F.3d 495, 496 (11th Cir. 1993) (per curiam).

Although we have not expressly adopted such a rule, see United States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir. 1996) ("We express no view as to the proper disposition of a motion for acquittal for lack of venue, should one be made after the close of the government's case-in-chief."), we have nevertheless made room for it, see Gilbert v. United States, 359 F.2d 285, 288 (9th Cir. 1966) (implying that venue objection may have been timely if raised in motion for acquittal). Thus, in line with the persuasive decisions of our sister circuits, we hold that venue objections made at the close of the government's case-in-chief are timely if the defect in venue is not apparent on the face of the indictment.

In this case, the alleged defect in venue was not apparent on the face of the indictment. The indictment alleged that Ruelas-Arreguin was "found in" the United States "within the Southern District of California." On its face, therefore, the indictment alleged proper venue because it alleged facts which, if proven, would have sustained venue in the Southern District of California. See United States v. Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997) ("[O]nly the indictment may be considered in pretrial motions to dismiss for lack of venue, and [ ] the allegations must be taken as true."). Thus, RuelasArreguin preserved his objection to venue when his counsel moved at the close of the government's case for a judgment of acquittal on the ground that venue was improper in the Southern District of California¹.

III

Although the venue objection may have been timely, venue was proper in the Southern District of California. The Constitution requires that venue lie in the district where a crime was committed. See U.S. Const. art. III, S 2, cl. 3; U.S. Const. amend. VI. This constitutional command is repeated in the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 18. The burden of establishing proper venue by a preponderance of the evidence rests with the government. See United States v. Angotti, 105 F.3d 539, 541 (9th Cir. 1997).

To decide whether venue was proper in the Southern District of California, we "must initially identify the conduct constituting the offense . . . and then discern the location of the commission of the criminal acts." United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999). Under S 1326, a deported alien may be convicted for either entering, attempting to enter, or being "found in" the United States. See 8 U.S.C. S 1326(a)(2). They are three distinct offenses. See United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. May 16, 2000). The crime of being "found in" the United States is completed when the "alien is discovered and identified by the immigration authorities." United States v. Hernandez , 189 F.3d 785, 791 (9th Cir. 1999), cert. denied, 120 S. Ct. 1441 (2000). However, the crime does not begin and end there.

An "entry" into the United States is required before a person is "found in" the United States. See Pacheco-Medina, 212 F.3d at 1166. "Entry" into the United States is "embedded in the `found in' offense." Id. Thus, the crime of being "found in" the United States commences with the illegal entry, but is not completed until discovery. See United States v. Salazar-Robles, 207 F.3d 648, 650 (9th Cir. 2000). In that sense, we have held that it is a "continuing offense," United States v. Ramirez-Valencia, 202 F.3d 1106, 1110 (9th Cir. 2000) (citing United States v. Guzman-Bruno , 27 F.3d 420, 423 (9th Cir. 1994)), even though the crime does not crystalize until official...