United States v. Anthony Hernandez-Herrera

273 F.3d 1213 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE v. ANTHONY HERNANDEZ-HERRERA, DEFENDANT-APPELLANT No. 00-50458 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 9, 2001 Filed December 12, 2001 1 [Copyrighted Material Omitted] 2 Gerald Singleton, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant. 3 Patrick O'Toole, United States Attorney, San Diego, California, Bruce Castetter, Assistant United States Attorney, San Diego, and John Chung, Special Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. 4 Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding D.C. No. CR-99-03024-MJL 5 Before: Rymer and Rawlinson, Circuit Judges, and Pogue, * Judge. 6 Opinion by Judge Rawlinson: Dissent by Judge Pogue. Rawlinson, Circuit Judge 7 Anthony Hernandez-Herrera ("Herrera") appeals his conviction for being a deported alien "found in" the United States in violation of 8 U.S.C. §§ 1326 . Herrera also appeals pre-trial, jury selection, evidentiary rulings, and the sentence imposed. Because the…

Opinion by Judge RAWLINSON: Dissent by Judge POGUE.

Anthony Hernandez-Herrera (“Herrera”) appeals his conviction for being a deported alien “found in” the United States in violation of 8 U.S.C. § 1326 . Herrera also appeals pre-trial, jury selection, and evidentiary rulings, and the sentence imposed. Because the district court committed no errors, we affirm Herrera’s conviction and sentence.

BACKGROUND AND PROCEEDINGS

On July 24, 1999, a “still watch” agent observed a group of suspected illegal aliens scaling the international border fence separating Mexico from the United States. The “still watch” agent alerted field agents so they could apprehend the suspects. Among the field agents who responded to the call was Agent George Syer (“Agent Syer”). When Agent Syer arrived at the location of the suspects, nine of them were already in custody. Two of the suspects, one of whom was Herrera, escaped into a patch of thick brush. While the suspects were in the brush, the “still watch” agent could no longer observe them. Unfortunately for Herrera, he fled into an area from which there was no escape. The brush was so thick Herrera could not travel through it, and by the time Agent Syer…

Dissenting:

I believe that this case is controlled by United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir.2000). As the majority opinion notes, Herrera fled into an area from which there was no escape. See supra page 1216. He was undisputably “de *1220 prived of [his] liberty and prevented from going at large within the United States.” United States v. Pacheco-Medina, at 1164 (quoting Ex parte Chow Chok, 161 F. 627, 630 (N.D.N.Y.1908), aff'd, 163 F. 1021 (2d Cir.1908)).

The majority opinion attempts to distinguish Pacheco-Medina by claiming that “[p]ersistent tracking, rather than visual surveillance, led to Herrera’s apprehension,” supra page 1219, but the testimony was that the defendant was captured fewer than fifty yards from the International Border Fence in the bushes from which there was no escape. (E.R. at 131-134.) In this circumstance, I believe the testimony on “tracking” to be irrelevant.

Accordingly, I dissent.