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United States v. Cabrera-Hoil

United States District Court, E.D. Washington

July 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CESAR EMMANUEL CABRERA-HOIL, VICTOR DANIEL CETINA-CHI, WILBERT ROSENDO CHAN-TUN, MAURICIO DE JESUS ESCOBEDO-GAMBOA, ANGEL LUIS GOMEZ-BE, and JORGE RAFAEL TZEK-PEREZ, Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

          JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE

         THIS MATTER was tried to the Court on July 11, 2019. All six defendants were charged in each of the three counts of the Amended Information.

         Defendants Cesar Emmanuel Cabrera-Hoil, Victor Daniel Cetina-Chi, Wilbert Rosendo Chan-Tun, Mauricio De Jesus Escobedo-Gamboa, Angel Luis Gomez-Be, and Jorge Rafael Tzek-Perez were not present and excused from attendance pursuant to Fed. R. Crim. P. 43. Each defendant's lawyer was present throughout the trial. The United States was represented by Assistant U.S. Attorney Matthew F. Duggan.

         Prior to trial, all Defendant's moved to suppress statements allegedly made to border patrol officers on the morning of their arrest. The Court granted the motion in part.

         The United States presented testimony from Mr. Jason Fox, and U.S. Border Patrol Agents Vincent Clark, Jose Flores, and Michael McIsaac.

         At the close of the United States' case, Defendants moved for a judgment of acquittal on all counts pursuant to Fed. R. Crim. P. 29. In open court the motion was granted with respect to Count 3. By subsequent order, the Court granted the motion as to Count 2. Accordingly, the only Count remaining in the case is Count 1 of the Amended Information.

         Following the argument on the Rule 29 motions, all defendants rested without offering evidence. All parties presented argument.

         In order to show Defendants committed the crime of attempted illegal entry under 8 U.S.C. § 1325(a)(1), as charged in Count 1 of the Amended Information, the United States must prove beyond a reasonable doubt (1) Defendants were not citizens of the United States, (2) Defendants had the specific intent to enter the United States free from official restraint and without the express consent of the Attorney General, and (3) Defendants committed an overt act that was a substantial step towards entering without that consent. United States v. Castillo-Mendez, 868 F.3d 830, 836 (9th Cir. 2017); United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005).

         The Court now makes the following:

         FINDINGS OF FACT

         1. All events took place at or near the Oroville, Washington Border Patrol Station, within the boundaries of the Eastern District of Washington. At all times the Oroville station was “closed for entry, ” though apparently officers were in the facility and on duty.

         2. Sometime after 3:00 a.m. on March 28, 2019 a United States Border Patrol Agent working at the Oroville, Washington station noted a white minivan with its engine running at a closed gas station convenience store on the United States side of the border. As the agent approached, the van drove away.

         3. Sometime after 5:00 a.m. the same agent noticed that same white van, again at the closed gas station convenience store. The van again moved away as the agent approached. The agent stopped the van and spoke with the driver. The driver said he was looking for work as a mechanic. The driver was detained.

         4. A surveillance camera operator observed six individuals clustered on the Canadian side of the border, moving in and out of a SUV vehicle and walking back and forth within a few blocks' radius on the Canadian side of the border. These six individuals were under visual observation from this ...


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