United States District Court, D. New Mexico
FINDINGS OF FACT AND CONCLUSIONS OF LAW
matter comes before the Court on a bench trial held on April
9, 2019. The Indictment (Doc. 11), filed on November 14,
2018, charges Defendant Pedro Perez-Hernandez with reentry of
a removed alien, in violation of 8 U.S.C. §§
1326(a) and (b).
pretrial conference held on April 9, 2019, Defendant
indicated that he wished to proceed with a bench trial and
waive his Sixth Amendment right to a jury trial. The Court
engaged in a colloquy with Defendant at the pretrial
conference regarding his desire to waive his right to a jury
trial. The Court found that Defendant knowingly, voluntarily,
and intelligently waived his right to a jury trial. Defendant
further filed a Stipulated Waiver of Right to Jury Trial. Tr.
at 11-15; (Doc. 51).
case proceeded to a bench trial immediately following the
pretrial conference. Following closing arguments, the Court
took this case under advisement. The Court further ordered
counsel to file joint and/or separate proposed findings of
facts no later than May 8, 2019, which counsel did. (Docs. 53
on the admissible testimony and evidence introduced at trial,
the Court makes the following Findings of Fact.
United States Border Patrol Agent Richard Arevalo
(“Agent Arevalo”) had been employed with the
United States Border Patrol since 2008 and was currently
assigned to Deming as part of an All-Terrain Vehicle Unit.
October 23, 2018, while working the afternoon shift, Agent
Arevalo encountered an individual by the name of Pedro
Perez-Hernandez. Tr. 26:22-27:5.
Agent Arevalo received information from remote video
surveillance operators. The operators told Agent Arevalo that
they had a visual of two individuals that had illegally
jumped the United States/Mexico fence, and were walking
northbound into the town of Columbus. Tr. 27:8-14.
Agent Arevalo received this information, Agent Arevalo and
his partner, Julio Calzada (“Agent Calzada”),
were about 5 to 10 miles west of the Columbus Port of Entry.
The two individuals entered the United States approximately 3
miles east of the Columbus Port of Entry. Tr. 27:15-20.
to weather conditions, other agents with forward-looking
infrared cameras, or night vision cameras, responded to the
area to assist. Tr. 27:20-28:1.
Agent Arevalo and Agent Calzada arrived at the scene, the two
individuals had separated. Agent Arevalo and Agent Calzada
decided to follow the individual who went west toward the
town of Columbus. Tr. 28:2-8.
Agents lost visual of the individual because of the rain.
Consequently, Agent Arevalo and Calzada began to “sign
cut” to locate the individual. Sign cutting is
“pretty much looking for footprints left by people
walking out in the desert.” Tr. 28:9-15.
Agent Arevalo and Agent Calzada began sign cutting in
opposite directions. After approximately 100 yards of sign
cutting, Agent Arevalo ran into sign, followed it another 100
yards, and located an individual, Defendant, in the brush,
trying to conceal himself. Tr. 28:18-25.
Agent Arevalo encountered Defendant near a small dirt mound
with a little cluster of mesquite bush. Defendant was tucked
away inside the mesquite bush. Tr. 31:6-8.
United States showed Agent Arevalo what had been pre-admitted
as Government's Exhibit 1, a picture of Agent
Arevalo's area of responsibility, which he referred to as
the “port of entry” or “POE” area.
Columbus POE is located on the United States/Mexico border
near the town of Columbus and near where Agent Arevalo
encountered Defendant. Agent Arevalo noted the area on
Government's Exhibit 1 where he encountered Defendant
with a red pin. Tr. 29:10-30:12.
Agent Arevalo found Defendant between a quarter of a mile to
a half of a mile from the southeastern edge of the town of
Columbus, a rural area commonly frequented by those making
illegal entry into the United States. Tr. 30:15-25.
United States showed Agent Arevalo what was pre-admitted as
Government's Exhibit 2, which is a photograph of the
actual mesquite bush where Agent Arevalo located Defendant.
The mesquite bush is located within the District of New
Mexico, in the United States. Tr. 31:9-20.
Agent Arevalo positively identified Defendant, in the
courtroom, as the same person he encountered in the mesquite
bush depicted in Government's Exhibit 2. Tr. 31:21-32:5.
Upon encountering Defendant, Agent Arevalo determined that
Defendant had illegally entered the United States, placed him
under arrest, and directed Defendant to a transport unit that
had arrived on scene. Tr. 31:6-17.
Agent Arevalo did not ask Defendant at the time of arrest
about his country of origin. Tr. 39:4-11.
After Defendant's arrest, Agent Arevalo took the photo
pre-admitted as Government's Exhibit 2 on an unknown date
in November 2018. Tr. 37:16-18.
The Booking Process
United States Border Patrol Agent Derek Baker (“Agent
Baker”) had been employed with the United States Border
Patrol for 11.5 years, and is currently assigned to the
Deming Border Patrol Station. Tr. 45:19-46:12.
October 24, 2018, Agent Baker was working the day shift, and
participated in the processing of Defendant after his arrest.
Agent Baker positively identified Defendant, in the
courtroom, as the person he helped process on October 24,
2018. Tr. 46:24-47:4.
Defendant verbally claimed to be both a U.S. citizen and to
have derived U.S. citizenship through his stepfather. Tr.
Defendant insisted during the booking process that he was a
U.S. Citizen and stated that he had paperwork. Tr. 58:13-23.
Agent Baker took Defendant's biographical information,
including Defendant's name, date of birth, and
fingerprints during processing. Tr. 47:9-16.
Agent Baker was present when Defendant's fingerprints
were taken, and Agent Baker explained the process of how the
fingerprints were taken in tandem with gathering
Defendant's biographical information. Defendant's
biographical information was verified prior to taking his
fingerprints. Tr. 49:4-21.
Court admitted Government's Exhibit 3, an FD-249 booking
sheet containing Defendant's fingerprints. The Court
noted defense counsel's objection to that Exhibit. Tr.
Defendant's fingerprints were run through databases for
criminal history, warrants, and immigration history,
including for information on when Defendant had previously
been apprehended and removed. Tr. 51:25-52:8.
Agent Baker determined Defendant was a citizen of Mexico, and
that Defendant had been previously deported from the United
States on two occasions: July 31, 2015, and September 16,
2017. Tr. 52:9-53:10.
When Agent Baker ran Defendant through databases, he
discovered that Defendant had been convicted of ...