United States v. Pomposo Casimiro-Benitez

Pomposo Casimiro-Benitez appeals from a judgment of conviction of illegal reentry of the United States by an alien after a prior conviction of illegal entry in violation of 8 U.S.C. § 1325 , and of illegal reentry of the United States by an alien after a prior deportation in violation of 8 U.S.C. § 1326 . This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 , 1294. We affirm.

On June 14, 1975, at approximately 4:30 a. m., Border Patrol Agents John D. Pool and Franklin R. Shumate were patrolling an area of downtown San Ysidro, California, near the Toreador Motel, which is located between one-half and three-quarters of a mile from the international border with Mexico. Agent Pool was aware that this area was utilized by illegal entrant aliens for hiding purposes while waiting for transportation. He had personally apprehended other illegal aliens in that immediate vicinity-

On this particular night, Agent Pool was instructing Agent Shumate, a trainee officer, as to the use of the area surrounding *1123 the Toreador Motel as a hiding place by illegal entrant aliens. As Agent Pool drove his patrol car slowly in front of the motel, he shined his hand-held 'spotlight on…

(concurring):

I concur. I reach the result this way.

It is stipulated, when placed in the car, Casimiro-Benitez was in custody. (One may doubt it, but we must accept the stipulation.) I have no trouble with the officers placing the appellant under restraint. There is little reason to doubt the defendant (and his companions), crouching behind a wall at 4:30 a. m. near the Toreador, had committed some crime or were in the process of committing one. The chance for error on this guess would be less than one in a thousand.

The officers, therefore, had a right to find out who Casimiro-Benitez was. Of course, the officers at the beginning should have given him a Miranda warning. But at that point, they had a right to immediately take Casimiro-Benitez away and fingerprint him. That would have unraveled the whole thing. Surely the failure to give a Miranda warning didn’t grow a poisoned tree that entitled the defendant to be permanently acquitted or to remain in the country.

We could reverse and the government could prove its case by official records, plus the testimony of the officers as to where they found Casimiro-Benitez. Thus, I do believe that the Miranda error was harmless.

533 F.2d 1121 UNITED STATES of America, Plaintiff-Appellee, v. Pomposo CASIMIRO-BENITEZ, Defendant-Appellant. No. 75-3335. United States Court of Appeals, Ninth Circuit. March 26, 1976. Thomas D. Schaefer (argued), San Diego, Cal., for defendant-appellant. Stephen V. Petix, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. OPINION Before CHAMBERS and BARNES, Circuit Judges, and BOHANON, * District Judge. BARNES, Circuit Judge: 1 Pomposo Casimiro-Benitez appeals from a judgment of conviction of illegal reentry of the United States by an alien after a prior conviction of illegal entry in violation of 8 U.S.C. § 1325 , and of illegal reentry of the United States by an alien after a prior deportation in violation of 8 U.S.C. § 1326 . This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291 , 1294. We affirm. 2 On June 14, 1975, at approximately 4:30 a. m., Border Patrol Agents John D. Pool and Franklin R. Shumate were patrolling an area of downtown San Ysidro, California, near the Toreador Motel, which is located between one-half and three-quarters of a mile from the international border with Mexico. Agent Pool was aware that this area was…