BARRY J

BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant XXXX XXXX-XXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

XXXX XXXX-XXX,

Defendant.

)

No. CR 00-0000 XXX

DEFENDANT=S MOTION TO DISMISS INDICTMENT, OR FOR REMAND TO MAGISTRATE COURT FOR ARRAIGNMENT

Hearing Date: Tuesday, May 24, 2005 at 10:30

TO: UNITED STATES ATTORNEY, PLAINTIFF; AND KEVIN V. RYAN, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF CALIFORNIA; AND CHRISTINE WATSON, ASSISTANT UNITED STATES ATTORNEY

PLEASE TAKE NOTE that on Tuesday, May 24, 2005 at 10:30 am, Mr. XXXX-XXX will move this Court to dismiss the indictment or, in the alternative, to remand to the magistrate court for proper arraignment as to the two year statutory maximum for the offense of illegal reentry by an alien. This motion is based on the Constitution of the United States, all relevant case law and statutory authority, the following memorandum of points and authority, and such argument as the Court will entertain at the motions hearing.

Background

I. The Grand Jury Was Charged by This Court in July of 2004

Undersigned counsel has asked AUSA Christine Watson for the charging date for the grand jury which returned an indictment against Mr. XXXX XXXX-XXX. According to Ms. Watson, this grand jury B Grand Jury 04-1 B was empaneled on July 21, 2004 and was Apresumably read the charge on the same date.@ Letter of Watson to Kalar of Feb. 9, 2005, Exh. A.

Interestingly, it was this Court which charged the grand jury on that date. See Reporter=s Transcript of Proceedings, Exh. B. In its charge, this Court appears to have used model instructions recommended by the Administrative Office of the United States Courts. See, e.g., United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir.) (discussing model charges), rehearing en banc granted, opinion withdrawn by United States v. Navarro-Vargas, 382 F.3d 920 (2004).

In its charging instructions, this Court restricted the grand jury=s ability to question the laws that they were asked to apply:

You cannot judge the wisdom of the criminal laws that have been enacted by Congress; that is, whether or not there should or should not have been a federal law designating certain activity as criminal. This is a matter for Congress to determine.

Reporter=s Transcript of Proceedings, Exh. B at 4:8-12.

This Court also offered an endorsement of the prosecutors who would ultimately be offering the evidence against Mr. XXXX-XXX before the grand jury:

If past experience is any indication of what to expect in the future, then you can expect candor, honesty, and good faith in matters presented by the government lawyers; however, ultimately, you must decide of your own independent judgment, never becoming an arm of the United States Attorney.

Id. at 12:6-10.

II. The Indictment Returned by the Grand Jury Fails to Allege a Prior Aggravated Felony

On January 13, 2005, a federal grand jury returned a one-count indictment charging Mr. XXX-XXX with illegal reentry, in violation of 8 USC ' 1326. Specifically, the indictment alleged:

INDICTMENT

The Grand Jury charges:

On or about June 15, 2001, the defendant

XXXX XXXX-XXX,

an alien, was arrested and deported from the United States to Mexico, and thereafter, having voluntarily returned to or remained in the United States subsequent to June 15, 2001, the defendant was found in the Northern District of California on or about May 26, 2004, the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a reapplication by the defendant for admission into the United States, in violation of Title 8, United States Code, Section 1326.

Indictment filed Jan. 13, 2005, Exh. C.

The indictment did not allege that the defendant had been convicted of an aggravated felony before his deportation or his reentry.

III. Mr. XXXX-XXX was Advised at Arraignment that the Statutory Maximum Sentence was Twenty Years for the Illegal Reentry Offense

Mr. XXXX-XXX was arraigned on the indictment by the Honorable Judge Bernard Zimmerman on January 18, 2005. At this arraignment, the defendant was informed that the statutory maximum sentence for this offense was twenty years. See, e.g., Indictment, Cover/Information Sheet, Exh. C (listing penatly as 20 years imprisonment).

Discussion

I. This Court Should Dismiss the Indictment Because the Grand Jury Charging Instructions Improperly Infringed Upon the Grand Jury=s Functions

As noted above, this Court charged the grand jury which returned the indictment against Mr. XXXX-XXX. The charging instructions provided to the grand jury (modeled on instructions provided by the Administrative Office), were fatally flawed in two respects. First, the instructions impermissibly limited the ability of the grand jury to consider the wisdom of the laws presented to them. In addition, the instructions improperly B and unilaterally B endorsed the credibility of the prosecutors presented the evidence before the grand jury.

A. The Charging Instructions Improperly Infringed Upon the Grand Jury=s Ability to Reject a Charge

The instruction given to the grand jury who returned this superceding indictment followed the model charge recommended by the Administrative Office of the United States Courts. See, e.g., United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir.) (discussing model charges), rehearing en banc granted, opinion withdrawn by United States v. Navarro-Vargas, 382 F.3d 920 (2004).

These model instructions have been subjected to a series of challenges by the Federal Defenders of San Diego. See, e.g., United States v. Marcucci, 299 F.3d 1156, 1158 (9th Cir. 2002), United States v. Adams, 343 F.3d 1024, 1027 & n.1 (9th Cir. 2003). The culmination of these challenges is the Navarro-Vargas case, which has been argued before an en banc panel and is currently under consideration. See United States v. Navarro-Vargas, 367 F.3d 896, 898 (9th Cir.), rehearing en banc granted, opinion withdrawn by United States v. Navarro-Vargas, 382 F.3d 920 (9th Cir. 2004).

The relevant portions of the charging instructions given in the present case are identical to those under attack in Navarro-Vargas. See 367 F.3d at 898. In the (withdrawn) panel decision in Navarro-Vargas, the Court held that these instructions did not violate the defendant=s Fifth Amendment rights. Id.^[1]

Judge Kozinski offered a vigorous dissent. Id. at 899. First, he incorporated the Aeloquent@ dissent of Judge Hawkins in the Marcucci decision. Id.

Judge Kozinski went on to note two specific problems with the charging instructions= prohibition on questioning the Awisdom of the laws.@ First, the dissent noted that prosecutorial discretion is a well-established principle, and allows prosecutors to decline to enforce of laws that are outdated, unwise, or unimportant. Id. at 900. For example, AUSA Watson B or United States Attorney Ryan B could decide that illegal reentry cases create disproportionally high sentences for what is essentially a trespassing offense, and could refuse to bring these cases. Or, as in the Central District of California, the United States Attorney could decide not to simply prosecute the more minor illegal reentry cases. See United States v. Banuelos-Rodriguez, 215 F.3d 969, 973 (9th Cir. 2000) (AAt the time that Defendant was sentenced, the United States Attorney in the Central District opted to concentrate on prosecuting those Aworst@ ' 1326 violators who could be sentenced under ' 1326(b). By contrast, the United States Attorney in the Southern District chose to prosecute more ' 1326 violators and then offer the majority of them an opportunity to plead to a lesser offense. As a result, it was more likely that an illegal alien who was eligible for the enhancement provided by ' 1326(b) would be sentenced under ' 1326(b) if the alien was apprehended in the Central District.@)

As Judge Kozinski explains, the function of the grand jury is Amost accurately described as prosecutorial.@ Id. at 900. AThere=s no reason grand juries cannot or should not make similar political judgments about which laws deserve vigorous enforcement and which ones do not, in deciding whom to indict, and on what charges.@ Id. This is a particularly important function because AUSA Watson and United States Attorney Ryan B unlike a local District Attorney B are not subject to local election and are therefore immune to local control. Id. at 902. The grand jury is, therefore, an important local check on abusive prosecutorial power from a federal government based three thousand miles away in Washington, D.C.

The dissent=s second observation is that the grand jury=s ability to consider the wisdom of the laws gains particular importance in light of the inability of the petit jury to exercise such discretion. Id. at 902. Neither the government, nor this Court, will likely tolerate a defense argument before the petit jury at trial that Section 1326 is an unwise law, and that therefore Mr. XXXX-XXX should not be convicted. Because that argument is precluded before the petit jury, it is particularly important that the grand jury=s power to return a Ano bill@ is not limited.

In addition to the Awisdom of the laws@ error, the charging instructions were also flawed for their unilateral endorsement of the prosecutor. This issue is not before the Navarro-Vargas en banc panel.

In its charging instructions, this Court told the grand jury to expect Acandor, honesty, and good faith in matters presented by the government lawyers.@ Exh. B at 12:6-8.^[2] Because this endorsement of the evidence presented by AUSA Watson undermined the neutrality of the grand jury, the superceding indictment is flawed and the indictment must be dismissed.

This instructional error is analogous to statutory prohibitions of bias in the judiciary. See, e.g., 28 USC ' 455 (West 2004) (ADisqualification of justice, judge, or magistrate judge.@) Subsection (a) of this statute requires a jurist to disqualify his or herself Ain any proceeding in which his impartiality might reasonably be questioned.@ Id. Similarly, the impartiality of the Court might reasonably be questioned when it specifically endorses government counsel before the grand jury. This is particularly true when there is no adversary to challenge the Acandor, honesty, and good faith@ of the government lawyers in front of the grand jury.

Note that the defendant is not specifically challenging this Court as biased; indeed, ironically, it appears that this Court may have little direct experience with ASUA Watson. Instead, this Court=s instructions were flawed because the model instructions are flawed. Nonetheless, the grand jury did not know that this bias originated with the Administrative Office instead of this Court B they simply heard that the prosecutors were to be trusted.

Would this Court ever consider instructing the petit jury at trial that in its experience, the AUSA was candid, honest, and presented evidence in good faith? Would the Court give that instruction unilaterally B that is, only in regards to the government? This Court=s instinctive rejection of that scenario applies with even greater force before the grand jury, for in that forum there is no adversary to test the government=s actions.

II. This Court Should Dismiss the Indictment or Remand for Proper Arraignment with the Correct Statutory Maximum, Because the Indictment Does Not Charge Constitutionally-Permissible Enhancement Facts

The twenty-year statutory maximum sentence reported at the defendant=s arraignment is constitutionally barred on two fronts. First, the enhancement fact of a prior deportation was not adjudicated before a jury B indeed, it was not even adjudicated before an Immigration Judge. In addition, the enhancement fact of a prior aggravated felony was not alleged in the indictment. The correct statutory maximum sentence is accordingly six months. See 8 USC ' 1325. The case should either be remanded for a correct arraignment, or the indictment should be dismissed in light of these pleading flaws.

A. Because the June 15, 2001 Deportation Was Not Proved Beyond a Reasonable Doubt at Trial, it Cannot be Used as an Enhancement Fact to Increase the Two Year Statutory Maximum Sentence

Section 1325 of Title 8 describes a misdemeanor offense for illegal entry. See 8 USC ' 1325. For the first offense under Section 1325, the statutory maximum is six months. Id. at ' 1325(a). To convert this misdemeanor into a felony, the government must prove additional enhancement facts B including the fact of a prior deportation. See 8 USC ' 1326(a), (b); see also United States v. Mendoza-Lopez, 481 US 828, 838-39 (1987) (AThis principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense . . . The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into the felony of unlawful entry after a deportation.) (internal quotations and citations omitted).

The enhancement fact of a prior deportation increases the statutory maximum from six months for a Section 1325 offense to two years for a Section 1326(a) conviction. Compare 8 USC ' 1325(a), with 8 USC ' 1326(a). That enhancement fact similarly increases the statutory maximum from six months for a Section 1325 offense to twenty years for a Section 1326(b) conviction. Compare 8 USC ' 1325(a), with 8 USC ' 1326(b).

In short, as explained by the Supreme Court in Mendoza-Lopez, the results of deportation proceedings can be used to increase the statutory maximum for the crime of illegal reentry from six months to two, or to twenty, years. Phrased differently, the prior deportation proceedings produce an enhancement fact that dramatically increases the statutory maximum for a criminal charge. Under the Sixth Amendment of the United States Constitution, because this enhancement fact increases the statutory maximum it must be plead in the indictment and must be proved beyond a reasonable doubt in a jury trial. See generally, Apprendi v. New Jersey, 530 U.S. 466 (9th Cir. 2000). Because this deportation proceeding was not before a jury B indeed, was not even before an immigration judge B it cannot be constitutionally used as an enhancement fact to increase the defendant=s illegal reentry statutory maximum sentence.

In a directly analogous case, the Ninth Circuit has held that relying on an enhancement fact secured without these due process protections violates Apprendi and fatally undermines an enhanced sentence. See United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001).

In Tighe, the defendant pled guilty to several counts of bank robbery. Id. at 1190. The presentence report concluded that the defendant fell under the Armed Career Criminal Act, (AACCA@), which created the danger of a fifteen year mandatory minimum sentence. Id. The defendant objected that a juvenile adjudication could not be used to trigger the greater ACCA sentence, because it was not proved beyond a reasonable doubt to a jury. Id. That objection was overruled, and the district court sentenced the defendant to 235 months under the ACCA-related guideline. Id.

On appeal, the defendant argued that his sentence was unconstitutional Abecause it was increased beyond the statutory maximum 10 years by the district court=s finding that he was adjudicated a juvenile delinquent for committing a violent felony when he was 14 years old.@ Id. at 1191. The defendant argued that Apprendi required that enhancement fact could only be used had it been charged in the indictment and found by a jury beyond a reasonable doubt. Id. The Ninth Circuit agreed. A[T]he district court violated Apprendi when, at sentencing, it increased Tighe=s penalty beyond a prescribed statutory maximum based on an adjudication which denied Tighe the right to a jury trial.@ Id. at 1195.

The reasoning of Tighe is indistinguishable from the challenge now before this Court. In both cases, the government attempted to use a prior adjudication to enhance a statutory maximum sentence. In neither case was that enhancement fact alleged in an indictment or proved beyond a reasonable doubt in a jury trial. Therefore, in the present case B as in Tighe B the defendant cannot be exposed to the greater statutory maximum sentence based on an constitutionally-deficient enhancement fact.

At the arraignment before Judge Zimmerman the government alleged that Mr. XXX-XX now faces a twenty-year statutory maximum sentence. This Court should hold that as currently pled, the indictment does not allege an Apprendi-compliant enhancement fact that increases the defendant=s statutory maximum sentence to twenty years. It should accordingly dismiss the indictment.^[3]

B. Because the Indictment Fails to Allege an Aggravated Felony, the Statutory Maximum Sentence is Two Years

As explained in the preceding section, the maximum statutory sentence permitted by the Constitution in this case is six months, because the enhancement fact of a deportation was not adjudicated before a jury (or even before an Immigration Judge). If, however, the Court disagrees with this constitutional challenge, the statutory maximum sentence stated at the defendant=s arraignment is still incorrect. Because the government has not alleged the enhancement fact of a prior aggravated felony in the indictment, the statutory maximum sentence for the offense of illegal reentry is two years B instead of the twenty represented by the government and stated by Judge Zimmerman. Compare 8 USC ' 1326(a) with 8 USC ' 1326(b).

As described in the preceding section, the government has alleged at the defendant=s arraignment that the statutory maximum term for the offense alleged in the indictment is twenty years. That is incorrect, and to the extent that this is the government=s intention the indictment is fatally flawed. Because the indictment does not allege the enhancement fact of a prior aggravated felony, the statutory maximum sentence permitted under Apprendi is the two years contemplated in Section 1326(a). Because the government has expressed its intention to seek a twenty year sentence, and because the indictment does not contain the enhancement fact of a prior aggravated felony, Mr. XXXX-XXX seeks to dismiss the indictment.

The Ninth Circuit has admittedly considered and rejected this Apprendi argument. See United States v. Pacheco‑Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (AUnder Almendarez‑Torres, the government was not required to include Pacheco‑ Zepeda=s prior aggravated felony convictions in the indictment, submit them to a jury, or prove them beyond a reasonable doubt, and the district court properly considered such convictions in sentencing.@)

What has changed, however, since the Pacheco-Zepeda decision is the Supreme Court=s view of the use of the enhancement facts of prior convictions to increase statutory maximum sentences. That shift has been recently, and vividly, illustrated in the case of Shepard v. United States, 125 S. Ct. 1254 (2005). To fully appreciate the impact of the Shepard decision, it is useful to review the evolving approach towards the use of prior convictions as statutory enhancement facts.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that an enhancement fact that increases a statutory maximum sentence must be proved to a jury beyond a reasonable doubt. Id. at 490. The Court carved out an exception to this constitutional rule, however, for the fact of a prior conviction. See id. By doing so, the Court let stand its earlier decision in United States v. Almendarez-Torres, 523 U.S. 224 (1998), in which the Court deemed the existence of a prior aggravated felony in a prosecution under 8 U.S.C. ' 1326 to be a Asentencing factor@ rather than an element, and hence not required to be pled in an indictment. See id. at 226. At the same time, the Court was careful to note that Almendarez-Torres was limited to its Aunique facts,@ including, chiefly, that Mr. Almendarez-Torres did not challenge the factual basis for the application of a recidivist enhancement. See Apprendi, 530 U.S. at 489-90.

Subsequently, in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), the Ninth Circuit was called upon to evaluate the precedential value of Almendarez-Torres in the wake of Apprendi. While recognizing that the Supreme Court in Apprendi expressed Areservations@ about the correctness of Almendarez-Torres, the Ninth Circuit could only conclude, Aat most, that Apprendi casts doubt on the continuing viability of Almendarez-Torres.@ Id. at 414. In the Ninth Circuit=s view, it remained the Supreme Court=s exclusive prerogative to overrule its prior decision. See id. (citing Agostini v. Felton, 521 U.S. 203, 237 (1997)).

Since Pacheco-Zepeda was decided, the Ninth Circuit has rebuffed similar constitutional challenges based on the failure to allege and prove a prior aggravated felony. See, e.g., United States v. Lopez-Zamora, 392 F.3d 1087, 1097-98 (9th Cir. 2004); United States v. Quintana-Quintana, 383 F.3d 1052, 1053 (9th Cir. 2004). In each such case, the Court=s reasoning has been based on its prior holding in Pacheco-Zepeda.

Now, however, recent Supreme Court authority has severely undermined Almendarez-Torres and, by extension, Pacheco-Zepeda. In Shepard v. United States, 125 S. Ct. 1254 (2005), the Court considered whether Taylor=s modified categorical approach permits consideration of police reports for purposes of determining whether a prior conviction qualifies as a predicate conviction under the Armed Career Criminal Act. In the course of answering that question, the Supreme Court observed that permitting a judge to make a disputed finding of fact concerning the factual basis for a plea (i.e., whether the plea was to an offense that qualifies as a Acrime of violence@) would Araise[] the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments . . . guarantee a jury=s finding of any disputed fact essential to increase the ceiling of a potential sentence.@ Id. at 1262. While the plurality raised this specter in support of its limitation on the universe of judicially noticeable facts under a Taylor analysis, it also recognized the possibility that its decision Amay portend the extension of [Apprendi] to proof of prior convictions.@ Id. at 1263 n.5 (AIt is up to the future to show whether the dissent is good prophesy.@).

Justice Thomas, concurring in the judgment, was less circumspect. Lamenting that A[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres,@ Justice Thomas noted that Aa majority of the Court now recognizes that Almendarez-Torres was wrongly decided.@ Id. at 1264 (Thomas, J., concurring).

Of course, only the Supreme Court can deliver the fatal blow to Almendarez-Torres. See Agostini, 521 U.S. at 237. As the Ninth Circuit has explained, however, Alower courts [are] bound not only by the holdings of higher courts= decisions but also by their >mode of analysis.=@ Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (citation omitted). Accordingly, Athe issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.@ Id. (citations omitted).