United States v. Jose Manuel Leon-Leon

35 F.3d 1428 UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel LEON-LEON, Defendant-Appellant. No. 93-10162. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1994. Decided Sept. 16, 1994. Francisco Leon, Tucson, AZ, for defendant-appellant. Joseph Koehler, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: FERGUSON, NOONAN, and T.G. NELSON, Circuit Judges. Opinion by Judge T.G. NELSON; Dissent by Judge FERGUSON. T.G. NELSON, Circuit Judge: I. Overview 1 Jose Manuel Leon-Leon (Leon-Leon) reentered the United States after being deported and, as a result, was convicted of violating 8 U.S.C. Sec. 1326 . He appeals the district court's decision that the deportation order could be used to prove an element of Sec. 1326. He also appeals the district court's exclusion of evidence regarding his reasonable belief that he had permission to reenter the United States. We affirm. II. Facts and Procedural History 2 On November 29, 1985, Leon-Leon, a citizen of Mexico, was admitted to the United States as a permanent resident alien. On August 10, 1986, he was convicted of…

Opinion by Judge T.G. NELSON; Dissent by Judge FERGUSON.

I.

Overview

Jose Manuel Leon-Leon (Leon-Leon) reentered the United States after being deported and, as a result, was convicted of violating 8 U.S.C. § 1326 . He appeals the district court’s decision that the deportation order could be used to prove an element of § 1326. He also appeals the district court’s exclusion of evidence regarding his reasonable belief that he had permission to reenter the United States. We affirm.

II.

Facts and Procedural History

On November 29, 1985, Leon-Leon, a citizen of Mexico, was admitted to the United States as a permanent resident alien. On August 10, 1986, he was convicted of transporting marijuana, an aggravated felony. Pursuant to this conviction, Leon-Leon was deported to Mexico in September 1988. After his deportation, Leon-Leon made no application to the Immigration & Naturalization Service (INS) for any kind of status adjustment.

*1430 On June 9,1992, Leon-Leon reentered the United States. The next day, he was apprehended in Douglas, Arizona, during the execution of a search warrant at the home of his ex-wife. On October 21, 1992, a superseding indictment was filed charging…

dissenting.

Appellant, Jose Manuel Leon-Leon was convicted of being an alien who, in violation of 8 U.S.C. § 1326 , reentered the United States without permission after having been deported.

Appellant’s 1988 deportation hearing was held by telephone. Appellant and his attorney were at the INS office in Tucson, Arizona and the Immigration Judge was presiding in Phoenix. There is no evidence in the record to show that Leon-Leon waived his right to be physically present at the hearing. See Purba v. Immigration & Naturalization Svc., 884 F.2d 516, 518 (9th Cir.1989) (parties must consent to telephonic hearings).

Since the appellant did not speak English, a court interpreter was present in Phoenix. The only questions translated into Spanish related to the appellant’s name, whether he spoke Spanish and whether Fernando Gaxio-la was his attorney. Leon-Leon responded affirmatively in Spanish to each of these questions.

After clarifying these preliminary matters, the court then asked Leon-Leon’s attorney, in a single, compound question, whether the appellant would waive the seven day rule with respect to the date of the telephonic hearing, admit service of the order to show cause on…