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United States v. Perez-Hernandez

United States District Court, D. New Mexico

May 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PEDRO PEREZ-HERNANDEZ, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

         This 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).

         At the 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[1]; (Doc. 51).

         The 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 and 56).

         FINDINGS OF FACT

         Based on the admissible testimony and evidence introduced at trial, the Court makes the following Findings of Fact.[2]

         I. Defendant's Arrest

         1. 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. Tr. 26:1-16.

         2. On 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.

         3. 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.

         4. When 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.

         5. Due 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.

         6. When 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.

         7. 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.

         8. 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.

         9. 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.

         10. The 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. Tr. 29:1-11.

         11. The 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.

         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.

         13. The 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.

         14. 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.

         15. 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.

         16. Agent Arevalo did not ask Defendant at the time of arrest about his country of origin. Tr. 39:4-11.

         17. 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.

         II. The Booking Process

         18. 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.

         19. On October 24, 2018, Agent Baker was working the day shift, and participated in the processing of Defendant after his arrest. Tr. 45:13-23.

         20. Agent Baker positively identified Defendant, in the courtroom, as the person he helped process on October 24, 2018. Tr. 46:24-47:4.

         21. Defendant verbally claimed to be both a U.S. citizen and to have derived U.S. citizenship through his stepfather. Tr. 58:3-9.

         22. Defendant insisted during the booking process that he was a U.S. Citizen and stated that he had paperwork. Tr. 58:13-23.

         23. Agent Baker took Defendant's biographical information, including Defendant's name, date of birth, and fingerprints during processing. Tr. 47:9-16.

         24. 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.

         25. The 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. 49:22-50:22.

         26. 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.

         27. 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.

         28. When Agent Baker ran Defendant through databases, he discovered that Defendant had been convicted of ...


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