UNITED STATES of America, Plaintiff-Appellee, v. Manuel CONTRERAS, Defendant-Appellant

Citations: 63 F.3d 852; 95 Cal. Daily Op. Serv. 6492; 95 Daily Journal DAR 11103; 1995 U.S. App. LEXIS 22526; 1995 WL 489136Docket: 94-30306

Court: Court of Appeals for the Ninth Circuit; August 17, 1995; Federal Appellate Court

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Manuel Contreras, a Mexican citizen, appeals his conviction for Aggravated Illegal Reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2). The Ninth Circuit affirmed the conviction. Contreras was initially arrested on July 29, 1988, for possession with intent to distribute cocaine and served with an Order to Show Cause for deportation while in custody. After admitting the allegations during a telephonic hearing on August 12, 1988, he was ordered deported but was not immediately removed due to pending criminal charges. Following his conviction for cocaine possession, he served 47 months in prison and was deported to Mexico on December 30, 1991. His supervised release prohibited him from re-entering the U.S. without permission.

Contreras returned to Oregon unauthorized before the end of his three-year supervised release period and was arrested on January 29, 1993, on a second drug charge. Although this charge was dismissed on November 18, 1993, he admitted to violating his supervised release conditions and was sentenced to time served. On the same day, he was indicted for Aggravated Illegal Reentry, which led to the current appeal. 

Contreras claims a violation of his right to a speedy trial, citing the Speedy Trial Act, which mandates that an indictment must be filed within thirty days of arrest. The court reviews legal interpretations of the Speedy Trial Act de novo and factual findings for clear error.

Contreras was arrested on April 8, 1993, for violating supervised release, but the indictment for illegal reentry did not occur until November 18, 1993. He contended that his arrest was 'in connection with' the illegal reentry charge due to the same underlying conduct of reentering the U.S. illegally. However, the court rejected this argument, clarifying that the Speedy Trial Act requires more than just a 'same conduct' standard. The court noted that Contreras was detained on both drug charges and the supervised release violation until the November indictment, and found no government delay in obtaining the indictment. Consequently, the court ruled that the Speedy Trial Act was not violated.

Contreras also claimed that the delay between his January 29, 1993, arrest for drug charges and the November indictment violated his Fifth Amendment due process rights. The court applies a two-pronged test to evaluate claims of pre-indictment delay. The defendant must first demonstrate 'actual prejudice' resulting from the delay. Contreras argued he was prejudiced because he could not consolidate sentencing for the violations. The court found this argument speculative, aligning with precedent that emphasizes the stringent application of the actual prejudice test. Although sentencing guidelines suggest that revocations are typically served consecutively, the district court maintained discretion in sentencing and found that Contreras did not establish actual prejudice, concluding that there was no abuse of discretion in its decision.

Contreras challenges his 1991 deportation order on three grounds: 1) inadequate advice regarding his eligibility for relief, 2) lack of translation for key hearing portions, and 3) the hearing being conducted by telephone. The validity of these claims involves a mixed legal and factual question reviewed de novo. The Supreme Court, in United States v. Mendoza-Lopez, established that an alien can challenge a deportation order if the underlying process was fundamentally flawed, effectively denying judicial review. Contreras does not claim he was denied the right to appeal; therefore, each allegation is assessed for potential due process violations.

Regarding eligibility notice, the court finds that Contreras received adequate notification during the hearing, which included an explanation of eligibility requirements in both English and Spanish. The hearing involved only three other detainees, and the IJ provided clear guidance about their rights, including specific references to Contreras' circumstances.

On the issue of untranslated portions of the hearing, it is noted that Contreras affirmed his proficiency in English and an affidavit confirmed his skills. While a discussion concerning good moral character was not translated, it did not prevent judicial review.

Lastly, the telephonic nature of the hearing is acknowledged as a deprivation of Contreras' right to an in-person hearing, as he was unrepresented and not informed of this right. Consequently, he cannot be considered to have waived it simply due to not requesting an in-person hearing.

A due process violation noted in Contreras’ case did not impact his right to judicial review, as he failed to demonstrate any resulting prejudice. Although the deportation hearing had procedural deficiencies, these were insufficient to support a collateral attack on the deportation order. Contreras challenged the district court's admission of his warrant of deportation (I-205 form) as evidence under the public records exception to the hearsay rule. The court reviews such admissions for abuse of discretion, and the I-205 form, while hearsay, was deemed admissible because it serves as a routine, objective record of factual matters. Contreras' argument for reconsidering a previous ruling regarding this form was dismissed as irrelevant, given that there was no change in the preparation of these forms since 1980. Additionally, the admission of the I-205 form did not violate the Confrontation Clause, as evidence admitted under a firmly rooted hearsay exception is compliant with constitutional standards. Regarding the sufficiency of evidence for the finding of prior deportation, the warrant indicated that Contreras was deported on December 30, 1991, at the El Paso Port of Entry, with corroboration from INS personnel. Contreras acknowledged evidence supporting that he was last seen leaving the U.S. toward Mexico.

Contreras contends that the evidence presented is legally inadequate to prove deportation, arguing it does not confirm he "actually reached Mexican soil," suggesting he might have deceived his INS escorts. He references the case of Yonejiro Nakasuji v. Seager, which involved a vessel that failed to properly deport aliens by returning them to U.S. waters instead of foreign soil. The court upheld a penalty against the vessel's master for not executing the deportation order, establishing that a mere return to international waters did not satisfy the requirement of removal from the U.S.

Contreras attempts to apply Yonejiro to argue against his punishment under Section 1326, positing that if his deportation was similarly a sham, he should not face penalties. The court rebuts this by stating that his position misinterprets Yonejiro, as it would unfairly distinguish between deportation violators. Evidence indicated Contreras was last seen walking toward Mexico, making it reasonable to infer he crossed into Mexico, thus supporting his conviction.

Contreras also challenges the admissibility of I.N.S. Special Agent Ruben Vela's testimony regarding deportations, arguing it was improper since Vela had no personal experience with deportations in El Paso, where Contreras’ deportation occurred. However, the court reviews this for plain error due to Contreras' lack of objection and finds no error.

Lastly, Contreras argues that the government did not provide adequate evidence of his alienage. The government presented a deportation order, a transcript from his hearing where he admitted his alienage and Mexican citizenship, and Vela’s testimony confirming his citizenship. The court cites a precedent stating that a deportation order alone is insufficient to prove alienage, but affirms that the cumulative evidence here adequately establishes Contreras' alienage. The ruling is affirmed.