United States District Court, E.D. Washington
FINDINGS OF FACT, CONCLUSIONS OF LAW AND
T. RODGERS, UNITED STATES MAGISTRATE JUDGE
MATTER came before the Court on October 24 and
October 28, 2019, for a joint bench trial of all five
defendants on Count 1 of the Indictment, which alleged a
violation of 8 U.S.C. § 1325(a)(1).
were not present and excused from attendance pursuant to Fed.
R. Crim. P. 43. Each defendant was represented by counsel;
Assistant Federal Defenders John Stephen Roberts, Jr., and J.
Houston Goddard for defendant Tony Rafael Baeza-Cruz,
Attorney Virginia Rockwood for defendant David Filiberto
Dominguez-Ku, Attorney Richard Lynn Mount for defendant
Divein Fernando Tobon-Munoz, Attorney Terrance Michael Ryan
for defendant Jose Armando Sulub-Chan, and Peter Steven
Schweda for defendant Juan Carlos Mis-Balam.
United States was represented by Assistant United States
Attorney Matthew F. Duggan through the first full day of
trial. The United States was represented by Assistant United
States Attorney Russell Smoot on the second and final day of
Indictment is adequate to charge and does charge the
completed crime of a knowing entry into the United States at
a time and place not approved by immigration authorities and,
alternatively, the crime of attempting to enter the United
States with the specific intent to be free of official
September 20, 2019, Count 2 of the indictment was dismissed
on Defendants' motion. Count 3 of the indictment was
severed and is scheduled for a jury trial before this Court
on November 21, 2019.
in Count 1 the United States alleges that during the
late-night hours of April 4, 2019, the five defendants were
initially observed on the Canadian side of the United
States/Canadian border as they crossed a fence at the border
and walked some 300 yards South into the United States.
Defendants were contacted by uniformed agents of the United
States Border Patrol, briefly queried, then taken to a nearby
Border Patrol station for additional processing. The
Indictment in question was returned on April 16, 2019.
to trial, the parties argued, and the Court ruled on certain
pretrial motions, notably Defendant's motion to suppress
statements and to exclude certain documentary evidence. The
Court granted the suppression motion, in part, permitting the
admission in the United States' case-in-chief of the
statements made by Defendants in the course of a
“Terry stop” when initially contacted in
the field by Border Patrol agents, but suppressing as
violative of Miranda statements subsequently made
during processing at the Border Patrol station. The Court
also excluded photocopies of certain documents allegedly
issued by foreign governments and seized from the person of
trial, the United States offered the testimony of United
States Border Patrol Agents Ross Roley, Michael Egerton,
Jorge Vasquez, Jeffery L. Prock, and Seth Justesen.
Defendants presented the testimony of Federal Defender
interpreter and investigator Maira Perez. The Court also
admitted the United States' exhibit purporting to be
defendant Tobon-Munoz' written waiver of his
Miranda rights and three defense exhibits purporting
to be photographs of the area where Defendants crossed the
border as it appeared in daylight at the time of trial.
the Court makes the following:
April 5, 2019, sometime between 11:00 p.m. and 11:30 p.m.,
all five defendants, with a sixth person who is not on trial
here, stepped over a three-strand barbed wire fence that ran
generally contiguous with the United States/Canadian border.
Defendants were on foot and proceeded directly south.
fence was in imperfect repair, in some places being fewer
than three strands and in some places completely absent. At
the place where Defendants crossed, the fence was
approximately “waist high.” There were no signs
or markers prohibiting entry or identifying an international
border. The fence ran through orchards and fields and crossed
a two-lane road that ran directly north from the United
States and continued into Canada.
Border Patrol Agent Justenson testified that the place
Defendant's entered the United States was not a point of