United States v. Herrera-Ortiz
2:25-cr-01433
D.N.M.May 14, 2025Background
- The United States charged Rogelio Manuel Herrera-Ortiz with three misdemeanors: entry without inspection (8 U.S.C. § 1325), violation of a security regulation (50 U.S.C. § 797), and entering military property for an unlawful purpose (18 U.S.C. § 1382).
- The criminal complaint alleged that Herrera-Ortiz entered the NM National Defense Area (NMNDA), contiguous to the U.S.-Mexico border, in the process of illegally entering the United States.
- At Herrera-Ortiz's initial appearance, the Federal Public Defender moved orally to dismiss the two military-related charges (§ 797 and § 1382).
- The Court undertook a probable cause review as required in cases of arrest without formal process and found factual allegations insufficient for the two military-related charges.
- The government relied on cut-and-paste complaints across numerous cases, and the defense objected to the sufficiency of the probable cause for the charges.
- The court dismissed the two military-related charges without prejudice due to lack of probable cause that Herrera-Ortiz knew he was entering military property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of "Willfulness" under § 797 | Knowledge of unlawful entry into U.S. suffices for "willfulness" regarding military trespass | Willfulness demands knowledge of the specific regulation and an act in defiance with bad purpose | "Willfully" only requires knowledge that conduct is unlawful; not specific knowledge of the regulation, but knowing entry into military property is required |
| Probable cause for violation of § 797 | Signs posted in NMNDA and illegal entry into U.S. show sufficient knowledge | No specific facts alleged that defendant saw or knew of signs/boundary; knowledge not established | Probable cause lacking on knowledge element—no facts support that Herrera-Ortiz knew he entered NMNDA |
| Mens rea for "goes upon" under § 1382 | Only knowledge requirement relates to the unlawful purpose, not to actual entry | Knowledge that one is entering military property is always required | Court holds knowledge of entry is required; mere entry without awareness is insufficient for prosecution |
| Sufficiency of complaint facts | Generic facts and signage allegations suffice; intent to avoid detection shows guilt | Signs were allegedly present but not linked to defendant's awareness; complaint lacks detail | Allegations do not establish defendant's knowledge of entering military property under either statute |
Key Cases Cited
- Atwater v. City of Lago Vista, 532 U.S. 318 (magistrate review of probable cause required for warrantless arrests)
- Bryan v. United States, 524 U.S. 184 ("willfulness" in criminal statutes means knowledge conduct is unlawful, not knowledge of specific law)
- Spies v. United States, 317 U.S. 492 (interprets "willfulness" for criminal intent)
- Cheek v. United States, 498 U.S. 192 (carves out narrow exception for ignorance of law in technical statutes)
- Ratzlaf v. United States, 510 U.S. 135 (distinguishes willfulness in technical statutory schemes)
- United States v. Wyatt, 964 F.3d 947 (jury instructions on willfulness)
- United States v. Robertson, 709 F.3d 741 (willfulness requires knowledge conduct is unlawful)
- Rehaif v. United States, 588 U.S. 225 (presumption of scienter for all statutory elements that criminalize otherwise innocent conduct)
- United States v. Allen, 924 F.2d 29 (types of purposes under § 1382)
- United States v. Parrilla Bonilla, 648 F.2d 1373 (unlawful purpose and lack of knowledge of entry under § 1382)
- United States v. Cottier, 759 F.2d 760 (defendant must know he's entering restricted area under § 1382)
- United States v. Hall, 742 F.2d 1153 (importance of clear demarcation of military base in trespass cases)
- United States v. Floyd, 477 F.2d 217 (knowledge of entry and prohibition required for § 1382 conviction)
- United States v. Apel, 571 U.S. 359 (public roads may cross military property)