818 F.3d 965
9th Cir.2016Background
- Rosales-Aguilar was charged with two counts of attempted illegal reentry under 8 U.S.C. § 1326 based on: (1) appearing in the San Ysidro pedestrian line on June 21 without documents, and (2) being found in bushes north of the border on June 24 after removal.
- At the port of entry on June 21 Rosales told an officer he had no entry documents, was not a U.S. citizen, intended to go to Chula Vista, and hoped "they wouldn’t stop him." He was processed for expedited removal and made statements later suppressed as Miranda violations but found voluntary by the district court.
- On June 24 he was arrested while intoxicated; he waived Miranda poorly (court found waiver involuntary) but again made voluntary statements that were suppressed; the district court nevertheless allowed those suppressed statements to be used to impeach inconsistent testimony.
- Defense presented Dr. Matthew Carroll, a psychiatrist, who testified Rosales told him he had no memory of the June 21 events (consistent with intoxication). The government cross‑examined the expert with Rosales’s suppressed prior statements as prior inconsistent statements.
- Rosales was convicted on both counts; at sentencing the district court applied a 16‑level Guidelines enhancement for a prior 1998 California conviction (Cal. Health & Safety Code § 11352(a)) as a "drug trafficking offense," producing an initial Guidelines range later varied downward.
- The Ninth Circuit affirmed convictions, rejecting challenges to impeachment with suppressed statements, to sufficiency on the June 21 count, to vindictive‑prosecution and missing‑video adverse‑inference claims, and deferred resolution of the § 11352(a) divisibility issue pending the Supreme Court’s Mathis decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of suppressed statements to impeach defense witness (expert) | Rosales: government may not use Miranda‑tainted statements against witnesses other than the defendant | Government: expert repeated Rosales’s own out‑of‑court statements; impeachment targets Rosales’s veracity | Court: admissible — impeachment exception applies because statements impeached Rosales’s own account, not the expert’s independent observations |
| Sufficiency of evidence for June 21 attempted reentry | Rosales: mere presence in secondary screening doesn’t prove attempt/intent to reenter unlawfully | Government: crossing border, waiting in line, lacking documents, and statements show specific intent and substantial step | Court: sufficient evidence; conviction on June 21 count upheld |
| Vindictive prosecution (addition of June 21 count after counsel complained about fingerprinting) | Rosales: prosecutor added charge to punish exercise of rights | Government: superseding indictment filed before notice of sanction motion; no punitive motive | Court: no vindictiveness; motion to dismiss denied |
| Adverse‑inference instruction for destroyed port‑of‑entry video | Rosales: routine destruction prejudiced defense; video could have helped | Government: destruction routine, prosecutor not responsible and no indication video would help | Court: denial of adverse‑inference instruction not an abuse of discretion |
Key Cases Cited
- Terry v. Ohio, 392 U.S. 1 (Frisk and seizure exclusionary‑rule context)
- Mapp v. Ohio, 367 U.S. 643 (exclusionary rule fundamentals)
- Harris v. New York, 401 U.S. 222 (Miranda‑tainted statements admissible for impeachment)
- Oregon v. Hass, 420 U.S. 714 (same principle on Miranda impeachment)
- James v. Illinois, 493 U.S. 307 (limits impeachment exception to defendant’s own testimony)
- Descamps v. United States, 133 S. Ct. 2276 (categorical/modified‑categorical approach guidance)
- United States v. Leos‑Maldonado, 302 F.3d 1061 (elements of attempted illegal reentry under § 1326)
- United States v. Valdez‑Novoa, 780 F.3d 906 (presence at port of entry and attempted reentry analysis)
- United States v. Almazan‑Becerra, 482 F.3d 1085 (transport for personal use outside trafficking enhancement)
- Almanza‑Arenas v. Lynch, 809 F.3d 515 (three‑step categorical/mod. categorical framework)