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United States v. Baeza-Cruz

United States District Court, E.D. Washington

November 4, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TONY RAFAEL BAEZA-CRUZ, DAVID FILIBERTO DOMINGUEZ-KU, DIVEIN FERNANDO TOBON-MUNOZ, JOSE ARMANDO SULUB-CHAN, and JUAN CARLOS MIS-BALAM, Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

          JOHN T. RODGERS, UNITED STATES MAGISTRATE JUDGE

         THIS 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).

         Defendants 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.

         The 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 trial.

         The 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 restraint.

         On 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.

         Broadly, 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.

         Prior 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 Defendants.

         At 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.

         Whereupon the Court makes the following:

         FINDINGS OF FACT

         1. On 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.

         2. The 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.

         3. Border Patrol Agent Justenson testified that the place Defendant's entered the United States was not a point of ...


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