Unpublished Disposition, 931 F.2d 61 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 931 F.2d 61 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Guillermo ENCISO-MONTERO, aka Guillermo Enciso, Defendant-Appellant.

No. 90-50503.

United States Court of Appeals, Ninth Circuit.

Submitted April 3, 1991.* Decided April 30, 1991.

Before NORRIS, CYNTHIA HOLCOMB HALL and TROTT, Circuit Judges.


MEMORANDUM** 

Appellant appeals his conviction for violation of 8 U.S.C. § 1326, being a deported alien found in the United States. Appellant argues that the district court erred in rejecting his pre-trial motion to dismiss his indictment on the ground that the government should be equitably estopped from prosecuting him. We affirm the conviction.

While we review a district court's factual findings for clear error, United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984), the legal basis for the district court's dismissal of a motion to dismiss an indictment is reviewed de novo. United States v. Gatto, 763 F.2d 1040 (9th Cir. 1985).

The gravamen of appellant's argument is that the government should be equitably estopped from prosecuting him because he relied on an immigration judge's statement, made at the end of a separate deportation hearing, that he would be immediately deported to Mexico if he did not contest the IJ's decision to deport him. Appellant argues that he waived his rights to counsel and to a deportation hearing in reliance upon the IJ's statement that he would be immediately deported if he did not invoke these rights. Instead of being immediately deported (a result appellant evidently preferred), he was rearrested the next day and charged with the instant offense.

We affirm the district court because appellant has failed to satisfy all the traditional elements of estoppel.1  Specifically, appellant has not shown that he relied, to his detriment, on the IJ's conduct. See United States v. Wharton, 514 F.2d 406, 412 (9th Cir. 1975) (setting forth four traditional elements of estoppel, including requirement that party asserting estoppel must rely, to his injury, on conduct of party to be estopped) (citing United States v. Georgia-Pacific Corp., 421 F.2d 92, 96 (9th Cir. 1970)). After finding that there was no factual dispute that appellant waived his rights to an attorney at the deportation hearing before the IJ made his remark that appellant would be immediately deported, the district court ruled that " [t]herefore, there could not have been any reliance, as is required for equitable estoppel." Reporter's Transcript of Motion Hearing, at 20, Excerpts of Record ("ER") 23. We do not find the district court's factual finding to be clearly erroneous, and we agree with its consequent legal conclusion.2 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

This conclusion obviates our need to determine whether appellant satisfied the extra requirements needed to invoke equitable estoppel against the government. See Watkins v. U.S. Army, 875 F.2d 699, 706-09 (9th Cir. 1989) (en banc) (discussing extra requirements needed to assert equitable estoppel against government), cert. denied, 111 S. Ct. 384 (1990)

 2

In his statement of the facts of the case, appellant does not even claim that he relied on the IJ's statement that he would be immediately deported; rather, he claims only that INS and deportation facility personnel made this statement to him before he actually waived his rights. In his legal argument, however, appellant does not argue that actions taken by INS personnel form the basis for his estoppel argument. Rather, he explicitly argues that " [i]n [appellant's] case, a statement by a federal judge which promised a result is the action which should have estopped the government from pursuing the [instant] criminal indictment." Appellant's Brief at 7