United States v. Rosales-Aguilar, No. 14-50315 (9th Cir. 2016)
Annotate this CaseDefendant appealed his conviction of two counts of attempted illegal reentry. Defendant did not testify at trial but snuck in his recollection of events by using an expert witness as a conduit for his own words. Principally at issue is whether it was proper to allow the government to impeach the expert with statements that defendant made voluntarily but that were not Miranda compliant. The court concluded that the district court properly admitted defendant's statements to the expert to impeach defendant's account of the events at issue. Because defendant does not challenge the district court’s finding that his statements to the Border Patrol officers were voluntary and reliable, the district court did not err by admitting these statements. The court also concluded that the district court did not err in denying defendant's motion for judgment of acquittal on the June 21 count where a jury could reasonably find that defendant had taken a substantial step by crossing the border and waiting in line for about an hour and a half to reach the inspection station, and that defendant had the specific intent to enter without the express consent of the Attorney General. The court rejected defendant's claim that the prosecutor vindictively added a second charge; the district court did not abuse its discretion by denying an adverse-inference jury instruction relating to the destruction of the port-of-entry video; and because the petition for certiorari granted in Mathis v. United States is directly relevant to the court's resolution of defendant's challenge to his sentence enhancement, the court deferred the resolution of this issue pending the Supreme Court's decision in Mathis. The court affirmed the conviction.
Court Description: Criminal Law. The panel affirmed a conviction on two counts of attempted illegal reentry, and stayed further proceedings pending a Supreme Court decision on a sentencing issue, in a case in which the government impeached a defense expert with statements that the defendant made voluntarily to Border Patrol officers but that weren’t Miranda compliant. The panel held that the district court did not err by admitting the statements to impeach the defendant’s account of the events – that he lacked the specific intent necessary for attempted illegal reentry because he was under the influence of heroin and meth – on cross-examination of a defense psychiatrist who testified that the defendant told him he had no memory of going to the border or speaking with the agent. The panel emphasized that it was not the psychiatrist’s observations that were being impeached, but the defendant’s perception, recollection and veracity that were being impeached by the defendant’s own prior inconsistent statements. The panel held that the district court didn’t err in denying the defendant’s motion for judgment of acquittal. The panel held that a jury could reasonably find (1) that the defendant had taken a substantial step by crossing the border and waiting in line for about an hour and a half to reach the inspection station, and (2) that the defendant had the specific UNITED STATES V. ROSALES-AGUILAR 3 intent to enter without the express consent of the Attorney General. The panel rejected the defendant’s contention that the second count was added by the prosecutor vindictively, and held that the district court didn’t abuse its discretion by denying an adverse-inference jury instruction relating to the destruction of a port-of-entry video. Regarding the defendant’s challenge to the district court’s assessment of a drug-trafficking offense enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 1998 conviction for sale of cocaine base under California Health and Safety Code § 11352(a), the panel held that the version of § 11352(a) under which the defendant was convicted does not categorically qualify as a drug trafficking offense because it permits a conviction for transportation of a controlled substance for personal use. The panel deferred resolution of whether § 11352(a) is divisible, thereby permitting application of the modified categorical approach, pending the Supreme Court’s decision in Mathis v. United States, No. 15- 6092.
The court issued a subsequent related opinion or order on November 9, 2017.
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