United States v. Romero-Lobato

UNITED STATES OF AMERICA, Plaintiff, v. ERIC ROMERO-LOBATO, Defendant.

Case No. 3:18-cr-00047-LRH-CBC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 4, 2020

ORDER

Following a declaration of a mistrial on January 6, 2020, the Court ordered defendant Eric Romero-Lobato to file a memorandum regarding the admissibility of his proposed derivative citizenship defense. He did so (ECF No. 94), to which the government responded (ECF No. 99) and defendant replied (ECF No. 104). Defendant subsequently filed a motion to dismiss the charge against him with prejudice based on double jeopardy grounds (ECF No. 96), to which the government responded (ECF No. 102) and defendant replied (ECF No. 110). Currently scheduled for February 5, 2020, is an evidentiary hearing to allow defendant to present evidence regarding his proposed derivative citizenship defense. For the reasons stated below, the Court denies defendant's motion to dismiss and reserves ruling on defendant's proposed derivative citizenship defense until after the evidentiary hearing or until this matter is resolved on appeal.

I. Background

This case has been pending for approximately twenty months and had previously been set for trial on May 21, 2019. It was continued to January 6, 2020, to follow two other jury trials involving the same defendant on seven charges including armed carjacking and attempted armed robbery. The juries found defendant guilty on those charges in trials held in July and November of 2019. His sentencings on those convictions have been continued over pending resolution of this third case.

Trial was scheduled to begin at 8:30 am on January 6, 2020. (ECF No. 67). Defendant is facing a charge under a single count indictment for illegal reentry by a previously deported alien, in violation of 8 U.S.C. §1326(a). (ECF No. 1). At the pretrial conference on December 19, 2019, counsel for defendant represented to the Court that the trial would last "a day [or] a day and a half." (ECF No. 101 at 2). Counsel for the United States stated that she believed that all the jury instructions would be submitted jointly; counsel for defendant did not disagree with this statement or indicate that they were considering instructions that would need to be briefed or argued in court. (Id. at 3-4). Pursuant to the Court's pretrial order, the Court had set a pretrial document deadline for instructions and exhibits of December 31, 2019. (ECF No. 65). At calendar call, the Court modified the deadline to noon on Friday, January 3, 2020. (ECF No. 101 at 3). Although it is unusual for the undersigned to start trial on a Monday or to allow counsel to submit documents the Friday before trial, the undersigned agreed to that schedule based in part upon the representations made by defense counsel. The undersigned's decision was premised on the impression created by counsel that the trial would be straightforward and without controversy as to proposed jury instructions or evidentiary matters.

Unfortunately, this is not what happened. On January 3, 2020, defense counsel timely filed several trial documents before the noon deadline; these included an exhibit list and proposed jury instructions. (ECF Nos. 73, 74). But at approximately 3:30 pm that Friday afternoon, in violation of the Court's pretrial and bench orders, defense counsel filed three additional jury instructions ex parte and under seal which went to derivative citizenship and acquired citizenship along with a motion to seal the instructions. (ECF Nos. 81, 82). At 4:23 pm, defense counsel filed a motion in limine to preclude the government from referencing defendant's prior criminal convictions. (ECF No. 84). The timing of this motion in limine was in violation of Federal Rule of Criminal Procedure 47(c), which mandates that any motion must be filed at least seven days before the hearing date unless the Court sets a different date, which it did not. Finally, at approximately 5:42 pm, defensecounsel filed an untimely new exhibit list. (ECF No. 85). As is evident by their filing times, all these filings were untimely and in violation of court order. While court was in session the following court day on January 6 and jury selection was underway, defense counsel then filed a second amended exhibit list at approximately 8:59 am. (ECF No. 89). This exhibit list was a substantial revision to the prior exhibit list, adding documents related to defendant's 1996 removal proceedings and deportation. Defense counsel then filed an untimely third amended exhibit list at approximately 11:05 am while the Court was nearing final jury selection. (ECF No. 90). These untimely exhibit lists were filed shortly before jurors were to be sworn and opening arguments were to begin.

As provided in the Court's pretrial order and as extended at calendar call to noon on January 3, 2020, the parties were "to file" and "serve upon all other parties" their complete exhibit lists containing all exhibits intended to be used at trial and all jury instructions "upon which counsel have agreed and all jury instructions upon which they have not agreed." (ECF Nos. 65, 67). Relevant here, the pretrial order requires that both the government and the defendant file their exhibit lists and proposed jury instructions no later than the noon deadline. The pretrial order also notes that pursuant to this district's local rules, the Court will consider the imposition of sanctions against any attorney who "fails to timely comply with the provisions of [the pretrial order]" or who "fails to timely comply with any other order than schedules deadlines for trial preparation." (ECF No. 65 at 5).

Prior to jury selection on that first morning of the projected two-day trial, the Court ruled on several matters, some of which had been newly raised by the defense's untimely filings. First, the Court held that the government could introduce defendant's 2007 deportation and related documents into evidence because they are relevant and probative to the issues of identity, alienage, and intent to enter the United States free from official restraint. (ECF No. 93 at 10). Second, the Court granted the government's request to introduce evidence of defendant's prior convictions for unlawful reentry because the government must prove that defendant had been previously deported as a necessary component of its case. See, e.g., U.S. v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007). As to defendant's untimely motion to seal certain jury instructions, the Court noted that itwas entirely improper for a party to submit proposed jury instructions to the Court without also disclosing them to the opposition. (ECF No. 93 at 11). Such a tactic is a clear violation of Federal Rule of Criminal Procedure 30 - "[w]hen the request [for jury instructions] is made, the requesting party must furnish a copy to every other party" (emphasis added). Not only was it improper for defense counsel to submit undisclosed proposed jury instructions in such a manner, but the filing was made in unexcused violations of the Court's pretrial orders. No justification was ever given for the untimeliness of the filings, and the Court ordered defense counsel to furnish copies of the proposed instructions to the government. This was on the first day of an anticipated one to two-day trial, and these rulings required unexpected and valued time from the Court for review and decision on the morning of trial.

Following the lunch break and before the final juror (the alternate) was sworn and opening arguments were to begin, the government moved to prevent defense counsel from presenting certain facts before the jury because the untimely filings suggested that the defense was likely to raise facts related to those documents. (ECF No. 93 at 109-10). These facts centered around defendant's first deportation in 1996, such as his juvenile status, lack of presence at the deportation hearing, family situation, and the nature of his initial entry into the United States. (Id. at 110-11). In response, defense counsel argued that those facts "all go to reasonable doubt as to alienage," and that the failure to allow counsel to present them would be tantamount to preventing defendant from putting on a defense. (Id. at 111). This all followed the Court's decision, issued nine months earlier, upholding the legal validity of the 1996 deportation following extensive briefing by the parties. (see ECF No. 57).

Based on the defense's numerous violations of deadlines and procedural rules, the obvious surprise and prejudice arising from those violations, the newly disclosed and complex legal issues concerning previously undisclosed instructions on derivative and acquired citizenship, and because a prospective jury prepared for a one to two day trial was now going to be expanded to a trial which would likely take much longer, the Court declared a mistrial to allow time for the parties and the Court to prepare for what this trial was now going to involve.

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II. Discussion

A. Surprise and Prejudice to the Government

It is axiomatic that late filings in all manner of cases prejudice the opposing party, as that party does not have the time that it should have to properly respond. In Ayala v. County of Imperial, for instance, the court set a strict deadline of March 15 for the plaintiff to file a motion for leave to amend a complaint. 2017 WL 1062589, at *1, 5 (S.D. Cal. Mar. 21, 2017). Plaintiff's counsel missed that deadline without good cause but then filed the motion after the deadline. The Ayala court made the following remarks that the Court believes are equally applicable to the circumstances of this case:

Defense counsel had every reason to think the Court's scheduling order meant what it said. When March 15 came and went and the Court dismissed the case on March 16, they had every reason to think the case actually was dismissed. They were free to turn their attention to other tasks and to adjust their schedules accordingly. When Plaintiffs' counse

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