United States v. Adan Garcia

MEMORANDUM

Adan Garcia appeals his conviction for violation of 8 U.S.C. § 1326 (a), challenging several of the district court’s evidentiary rulings. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

1. Because the lawfulness or unlawfulness of Garcia’s three prior deportations is not an element of the offense under § 1326, but is rather a basis to attack the initiation of the prosecution through a motion to dismiss, the district court did not abuse its discretion in granting the Government’s Motion in Limine to preclude Garcia from offering evidence at trial about the asserted unlawfulness of his pri- or deportations. United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir.1996)' (en banc). To the extent Garcia sought to rely upon § 1326(d) to collaterally attack his prior deportations, he was required to file a timely pretrial motion to dismiss the information, which he failed to do. See United States v. Lopez, 762 F.3d 852, 858 (9th Cir.2014) (“[I]f actual physical removal or deportation is proven, a valid order of removal or deportation may be presumed in the absence of a collateral pre-trial challenge in the form of a motion to dismiss the indictment, or, as…