UNITED STATES of America, Plaintiff-Appellee, v. Alberto Jose DEL MURO, AKA Raul Torres-Garcia, Defendant-Appellant

Upon entering the United States, Appellant told immigration inspectors he was a United States citizen and provided identification in the name Alberto Jose Del Muro. A computer check indicated Appellant had used many names in dealing with immigration officials and had been convicted of multiple violations of the immigration laws. Del Muro was arrested and charged for falsely claiming to be a United States citizen. 18 U.S.C. § 911 . A jury found Del Muro guilty, and he was sentenced to 30 months imprisonment. We vacate the sentence and remand.

I.

Del Muro filed a Rule 33 motion for new trial, claiming trial counsel had rendered ineffective assistance by failing to interview or subpoena witnesses suggested by Del Muro. Del Muro requested that the court appoint substitute counsel to present the motion on his behalf. The district court denied the request.

The court held an evidentiary hearing on the motion at which it reviewed declarations and heard live testimony of the potential witnesses. The court required trial counsel to examine the witness who testified and argue that counsel’s own failure to investigate and call this witness and two others prejudiced Del Muro’s case. The…