United States v. Jara–Favela

686 F.3d 289

UNITED STATES of America, Plaintiff–Appellee,

v.Juan Francisco JARA–FAVELA, Defendant–Appellant.

No. 11–40142.

United States Court of Appeals, Fifth Circuit.

June 27, 2012.

Carmen Castillo Mitchell, Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Laura Fletcher Leavitt, Molly Estelle Odom (argued), Asst. Fed. Pub. Defenders, Eileen K. Wilson (argued), Asst. U.S. Atty., Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The Defendant–Appellant Juan Francisco Jara–Favela (“Jara–Favela”) appeals his convictions for attempted illegal reentry and for making a false statement to Customs and Border Patrol (“CBP”) agents. We AFFIRM.

I

This appeal arises out of Jara–Favela's attempt to illegally reenter the United States at the United States–Mexico border. A jury convicted him of attempted illegal reentry and for making a false statement to CBP agents. The facts that follow summarize the testimony presented at trial.

Jara–Favela, a Mexican citizen, was previously granted legal status to be in the United States, but was deported to Mexico after an immigration judge ordered him removed. He did not apply for readmission. Just over a month after his removal, Jara–Favela approached the bridge at the Gateway to the Americas Port of Entry, located on the United States–Mexico border between Laredo, Texas, and Nuevo Laredo, which is in Mexico. The bridge spans the Rio Grande and is divided into several lanes dedicated to pedestrian or automotive traffic.

Important to this case is an area known as soft secondary inspection, an area reserved for people with questions and minor problems. Pedestrians such as Jara–Favela may approach soft secondary inspection in a few ways. First, if a problem arises at primary inspection, pedestrians, whether approaching the bridge from either direction, may be referred or escorted to soft secondary inspection for assistance. If referred or escorted from either side of the border, the person sometimes may receive an orange slip explaining the issue to be resolved. Only if able to resolve the issue, the soft secondary agent will stamp the orange slip, signaling to the agent at primary inspection that the person may cross the border.¹ Pedestrians arriving from Mexico may approach soft secondary in one other way. They may walk there directly to ask questions, without first passing through primary inspection. Regardless of how they reach soft secondary—a referral, escort, or simply walking up to the counter—all pedestrians crossing the bridge, whether going north or south, ultimately must pass through one of three booths for primary inspection before they may legally cross the border.

At the port of entry, Jara–Favela approached soft secondary inspection and spoke to Crystal Escobedo (“Escobedo”), a CBP officer. Jara–Favela did not have an orange slip, and it was unclear whether he reached soft secondary from the Mexican or American side of the border. Jara–Favela showed Escobedo his Mexican passport and his expired, but otherwise valid, ADIT stamp that he had previously used to enter the United States.² Jara–Favela did not claim that his ADIT stamp was valid, but asked Escobedo about the status of his legal permanent resident card, claiming he had never received it. Escobedo checked Jara–Favela's residency status in a database and learned that Citizenship and Immigration Services (“CIS”) had not issued Jara–Favela a card since 2005. Escobedo asked Jara–Favela where he was coming from. He said, “el norte”—the north. Assuming that Jara–Favela meant the United States, Escobedo advised Jara–Favela to visit the CIS office in Laredo for help. Before leaving soft secondary inspection, Jara–Favela asked Escobedo for a stamped orange slip. Assuming that he was referred to soft secondary inspection from primary inspection on the United States side of the border and had not received an orange slip, Escobedo advised Jara–Favela to return to the primary inspection officer who let him pass through to secondary.

Jara–Favela went to a pedestrian lane at primary inspection, where CBP officer Zach DeLeza (“DeLeza”) was on duty. DeLeza did not know that Jara–Favela had just spoken to Escobedo. Jara–Favela showed DeLeza his passport with the expired ADIT stamp. Speaking in Spanish, DeLeza asked him where he was coming from. Jara–Favela told him he was coming from the north and explained that he wanted to check the status of his legal permanent resident card. DeLeza searched a database at secondary inspection and saw a “lookout” beside Jara–Favela's name. DeLeza asked Jara–Favela at least one more time where he was coming from, and Jara–Favela again said the north. DeLeza filled out an orange slip, writing Jara–Favela “claims [he is] coming from the north and he came about to check on his [Legal Permanent Resident] card.” DeLeza escorted Jara–Favela to secondary inspection with help from his supervisor Agent Isidro Avila (“Avila”).

After DeLeza explained to Avila what Jara–Favela had told him, Avila asked Jara–Favela where he was coming from. This time, Jara–Favela said Mexico. Because of the perceived inconsistencies in his statements, the agents patted Jara–Favela down and handcuffed him to a chair in an area reserved for hard secondary inspection—dedicated to interrogation, expediting removal, or exploring the possibility of criminal prosecution—to await questioning. While he waited, video footage from the bridge confirmed that Jara–Favela had approached the point of entry from Mexico,³ and CBP Agent Hector Guerra (“Guerra”) reviewed Jara–Favela's case file, which by that time included the other agents' reports. Guerra then interviewed Jara–Favela. Jara–Favela told Guerra that he had come from Nuevo Laredo, intending to go to his home in Laredo. He claimed that he did not know he was being deported a month earlier when he had been escorted to the border at Del Rio. He claimed he was trying to apply for readmission earlier in the day.

A grand jury charged Jara–Favela in a single-count indictment with attempted illegal reentry of the United States following his deportation in violation of 8 U.S.C. § 1326. A superseding indictment added two more counts against Jara–Favela. Count 2 charged Jara–Favela with being unlawfully found in the United States after deportation in violation of 8 U.S.C. § 1326. Count 3 charged Jara–Favela with knowingly and willfully making a false, fictitious, and fraudulent material statement and representation to CBP Officers in violation of 18 U.S.C. § 1001. Count 3 centered on the allegation that Jara–Favela told DeLeza that he was coming from Laredo, Texas, but told Avila that he was coming from Nuevo Laredo, Mexico. On the Government's motion, the district court dismissed Count 2 from the superseding indictment. The case proceeded to trial on Counts 1 and 3.

It was the Government's theory at trial that Jara–Favela entered soft secondary inspection from south of the border and attempted to slip through to the United States by convincing officers that he had approached the international bridge from the north. The Government presented the testimony of Escobedo, DeLeza, Avila, Guerra, and other witnesses that showed, in part, that Jara–Favela had told DeLeza he had come from the north and had told Avila he had come from Mexico.

After the Government rested, Jara–Favela moved for judgment of acquittal, arguing that the Government had not presented enough evidence to support a conviction on either count. The district court acknowledged that Jara–Favela's case was unusual, but denied his motion. Jara–Favela did not testify and presented no additional evidence. After closing arguments, the case proceeded to the jury.

The district court orally instructed the jury. The jury instructions, in part, summarized the indictment and attempted to explain that the evidence that the Government presented differed slightly from what the indictment charged:

A statement is material if it has a tendency to influence or has the capability of influencing—influencing a decision by that officer, which, in this case, is the [CBP].

So the charge here is that, on that same day, that—in talking about something within the jurisdiction of the [CBP]. And—so, therefore, in connection with this whole business of who I am, and where am I going, and where am I coming from, and—and can I come in, or whatever he was doing, that—but that in a material—that it's material to what the officer's jurisdiction is, that the Defendant made a false statement, because he stated to one officer that he was coming from Laredo, Texas, which would be necessarily the north. That's the first north thing north of the bridge. Whereas, he stated to the other officer that he was coming from Nuevo Laredo, Mexico.

This is a little different, because what the Government is saying—that the Defendant knew that one of the statements was false, that they cannot both be right. So the charge is—the indictment doesn't allege which was the false one. The Government—what the indictment alleges is that he made two conflicting statements to [CBP] people at the bridge, in a material matter, that would have had a tendency or could have influenced their decisions.

And that it was knowingly false. That one of the statements—that he made those statements deliberately. And that one of the statements had to be false, because one was “I'm coming from the north,” and one “I'm coming from the south.” And that he made them intentionally and that he knew that one of them was false.

And that it was a matter—it wasn't a social matter. It wasn't a minor, irrelevant matter. It was—it was a matter within the jurisdiction of the people at the bridge, the [CBP] people. And that it was—that it was the kind of thing that—the...