UNITED STATES of America, Plaintiff-Appellee, v. Benjamin CORONA-GARCIA, Defendant-Appellant.
No. 98-50568.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 2, 1999 Filed April 14, 2000
210 F.3d 973
PETITION GRANTED; CASE REMANDED WITH INSTRUCTIONS.
Richard M. Barnett, San Diego, California, for the defendant-appellant.
Bruce R. Castetter, Assistant United States Attorney and Carol C. Lam, Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.
Opinion by Judge BRIGHT; Dissent by Judge REINHARDT
BRIGHT, Circuit Judge:
A jury convicted Benjamin Corona-Garcia of reentering the United States after he had been previously deported, a violation of
I. BACKGROUND
Benjamin Corona-Garcia (“Corona-Garcia“) is a native and citizen of Mexico. While incarcerated in California for state crimes, the INS interviewed Corona-Garcia as part of an “Institutional Hearing Program” in which suspected criminal aliens are subjected to questioning. In his interview with an INS officer, and without the benefit of Miranda, Corona-Garcia admitted that: (1) he is a Mexican citizen; (2) he had previously been deported to Mexico from the United States; (3) he reentered the United States near Calexico, California, by “jumping the fence” sometime in April 1997; and (4) he had neither sought nor received permission to reenter the United States. See Trial Tr. at 59.
When Corona-Garcia was eventually paroled by the state, he was transferred to the custody of the INS. On March 23,
On March 31, 1998, a grand jury indicted Corona-Garcia and alleged that:
On or about April 1997, within the Southern District of California, defendant BENJAMIN CORONA-GARCIA, an alien, after having been deported and removed from the United States to Mexico, through the Port of Entry, Calexico, California, on or about December 16, 1996, entered in San Diego County, without the Attorney General of the United States having expressly consented to the defendant‘s reapplication for admission into the United States; in violation of Title 8, United States Code, Section 1326.
E.R. at 1-2 (emphasis added).
Subsection (a) of
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless . . . the Attorney General has expressly consented to such alien‘s reapplying for admission . . . [shall be subject to criminal penalties].
On the morning of trial, with a pool of prospective jurors waiting to be impaneled, Corona-Garcia moved for substitution of counsel. The district court promptly held a sealed, ex parte proceeding (subsequently unsealed) at which Corona-Garcia‘s counsel informed the court that, although he was prepared for trial, he and his client disagreed on undisclosed matters of trial strategy. Addressing the court, Corona-Garcia indicated that he was confused, upset, and failing to communicate with his lawyer. After extensive efforts to elicit further information from both Corona-Garcia and his lawyer, the district court found that the basis offered for substituting counsel was inadequate and presented a substantial likelihood of inconvenience and delay. On that basis, the court denied the motion.
After opening arguments, Corona-Garcia moved to suppress his confessions. The district court heard extended argument on the question and agreed that the INS took Corona-Garcia‘s first admission in violation of his Fifth Amendment rights. The court suppressed the confession on that basis. However, with respect to his second admission, the court found that Corona-Garcia‘s confession to Agent Welch was made under conditions which complied with Miranda. As a result, the court ruled that Corona-Garcia‘s confession to Agent Welch could be presented to the jury.
During trial, the government introduced several documents from Corona-Garcia‘s INS file. These documents showed that Corona-Garcia had been found deportable by an immigration judge in November 1996, see Ex. 3, and that he had in fact been deported at the Calexico border station in December 1996 pursuant to a Warrant of Deportation. See Ex. 4. The government also introduced a so-called “Certificate of Non-Existence.” See Ex. 6. This certificate showed that the INS
Testimony was also given by several witnesses. Torres, a fingerprint expert from the San Diego Police Department, testified that the fingerprint card attached to Corona-Garcia‘s 1996 Warrant of Deportation matched a fingerprint exemplar taken from Corona-Garcia a few days before trial. McCormack, an immigration enforcement officer, testified that he witnessed Corona-Garcia‘s physical deportation at the Calexico border station on December 16, 1996. Carvajal, an INS agent, testified about the nature and contents of several of the INS documents introduced as exhibits, including the Certificate of Non-Existence. Finally, and most importantly, Agent Welch testified to the form and content of her interview with Corona-Garcia.
At the close of the government‘s evidence, and arguing that it had failed to show that he entered the United States illegally, Corona-Garcia moved for judgment of acquittal under Rule 29. After extended argument on this contention, the district court concluded that adequate evidence had been presented by the government for a jury to find all of the elements of a
Corona-Garcia presented no witnesses and offered no evidence beyond several INS documents introduced as defense exhibits during cross-examination. After brief deliberations, the jury returned a verdict of guilty. On August 25, 1998, the district court sentenced Corona-Garcia to eighty-four months in prison. This sentence was at the bottom of the guideline range for an offender with a criminal history score of 23 and an offense level of 22. The district court reached this offense level calculation, in part, because it granted Corona-Garcia a two level reduction under
On August 31, 1998, Corona-Garcia timely appealed to this court. He now asserts three errors.
II. DISCUSSION
A. Substitution of Counsel
Corona-Garcia argues that the district court erroneously denied his motion for substitution of counsel. We review the denial of such motions for abuse of discretion. See United States v. Castro, 972 F.2d 1107, 1109 (9th Cir. 1992).
We focus on three considerations when addressing whether a defendant was wrongly denied the opportunity to substitute counsel: first, we consider whether the district court‘s inquiry on the matter was adequate; second, we study the extent of the conflict between the defendant and his counsel; and third, we weigh the timeliness of the motion against any inconvenience or delay that would result from granting the motion. See United States v. D‘Amore, 56 F.3d 1202, 1204-05 (9th Cir. 1995), overruled on other grounds by United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999) (en banc). In this case, it is
First, when Corona-Garcia moved for substitution of counsel, the court immediately suspended the proceedings, cleared the courtroom, and held an ex parte hearing on the motion. At this hearing, the court inquired about the reasons and support for the motion and examined both Corona-Garcia and his trial counsel at length. Corona-Garcia explained to the court that he was having family problems, that he felt “lost and confused,” Hearing Tr. at 2, and that he and his lawyer were “not communicating with each other.” Id. at 3. For his part, Corona-Garcia‘s counsel explained that he was “prepared to go forward,” id. at 4, and that he had been communicating with his client, but he also indicated that Corona-Garcia disagreed with him about some fundamental issues of trial strategy. See id. at 8. Although the court attempted repeatedly to elicit further elaboration from both Corona-Garcia and his counsel, neither person would provide any detail. Under these circumstances, we believe that the district court conducted an inquiry which was as extensive as can reasonably be expected and one which was fully adequate.
Second, the extent of the conflict between Corona-Garcia and his lawyer does not appear to have been severe. Although Corona-Garcia claimed that he was not receiving appropriate “paperwork,” Hearing Tr. at 4, neither he nor his lawyer could specify a single document which Corona-Garcia had not received. Id. at 8-9. The only genuine conflict appears to have been with respect to trial strategy. Despite the court‘s repeated attempts to expose this conflict to scrutiny, both Corona-Garcia and his lawyer refused to provide any meaningful detail. See id. at 5, 6, 8, and 9. On other matters, despite vague assertions to the contrary, both Corona-Garcia and his lawyer admitted that they were in fact communicating. See id. at 3, 5. Thus, our examination of the record reveals that although there was some limited conflict between Corona-Garcia and his lawyer, it was not extensive.2
Third, the motion—brought as it was with trial imminent—would cause inconvenience and delay, both to the court and the prosecution. A defendant‘s late notice may not be enough alone to prevent substitution of counsel. See United States v. Torres-Rodriguez, 930 F.2d 1375, 1380-81 (9th Cir. 1991) (reversing conviction despite request for substitution made on day of trial) overruled on other grounds by Bailey v. United States, 516 U.S. 137 (1995). But when late notice and motion are combined, as they are here, with unpersuasive, chimerical arguments, the case for delay is weak. In addition, Corona-Garcia requested that his trial be conducted expeditiously and both the court and government cleared their calendars to accommodate him, see Tr. of Motion Hearing, May 18, 1998, yet upon making his motion Corona-Garcia had no other counsel waiting to substitute. Under these conditions, and with veniremen waiting for voir dire, we conclude (as did the district court) that the inconvenience caused by any delay would have been substantial and the cost to the court in terms of judicial resources would have been high.
Thus, under the totality of these circumstances, we cannot say that the district court abused its broad discretion when it denied Corona-Garcia‘s request for substitution of counsel.
B. Judgment of Acquittal
At the close of the government‘s case, Corona-Garcia moved for judgment of acquittal under Rule 29. In support of his motion, Corona-Garcia argued that despite
Corona-Garcia renews this argument on appeal and contends that the district court erred when it denied his motion for acquittal. We review such contentions de novo and ask whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Bahena-Cardenas, 70 F.3d 1071, 1072-73 (9th Cir. 1995) (citations and emphasis omitted).
The only element of the crime in contest here is whether the government presented adequate evidence concerning Corona-Garcia‘s entry into the United States. The primary evidence against Corona-Garcia in this regard consists of his own confession: He admitted that he entered the United States along the Mexican border near Calexico, in San Diego County, California, sometime in April 1997.
Although the government may rely on a defendant‘s confession to meet its burden of proof, it has nevertheless been
Lopez-Alvarez summarized Opper‘s two-part corroboration requirement this way:
[F]irst, although the state need not introduce independent evidence of the corpus delicti in conformance with the traditional test, it must introduce sufficient evidence to establish that the criminal conduct at the core of the offense has occurred. Second, it must introduce independent evidence tending to establish the trustworthiness of the admissions, unless the confession is, by virtue of special circumstances, inherently reliable . . . only then will the evidence be deemed sufficient in a case in which the conviction depends in part on such admission.
Lopez-Alvarez, 970 F.2d at 592.
The gravamen of the offense in this case—that is to say the conduct at the core of the offense—is entry.3 Although Corona-Garcia maintains that only his bald confession supports a conclusion that he entered the United States, we disagree. Under the constellation of corroborating evidence presented by the government, and viewing that evidence in the light most favorable to the prosecution, as we are obliged to do, we believe that a rational trier of fact could have found beyond a reasonable doubt that Corona-Garcia entered the United States.
Corona-Garcia‘s presence in the United States is important in this regard. Because the government established that it deported Corona-Garcia to Mexico in December of 1996, it is true by force of common sense that his subsequent presence in the United States demonstrates some form of entry and, a fortiori, corroborates his admission to entry. Thus, because entry is the “conduct at the core of the offense,” Lopez-Alvarez, 970 F.2d at 592, Corona-Garcia‘s mere presence in the United States helps satisfy the first part of the Opper/Lopez-Alvarez test.
The second part of the test requires evidence tending to establish that the defendant‘s confession was trustworthy. In this regard, we believe that an inference may be fairly drawn from Corona-Garcia‘s prior deportation at Calexico and his admission that he subsequently reentered the United States near there. This inference, and the detail upon which it relies, is not insignificant because it provides a logical connection between Corona-Garcia and an otherwise random entry point along the long Mexican frontier. Hence, Corona-Garcia‘s prior deportation at Calexico lends support to his confession and tends to establish that it was trustworthy.
Although it is true that the sum total of this evidence might well be insufficient, standing alone, to prove entry, we do not read Opper or Lopez-Alvarez to require such absolute proof. Indeed, Opper and Lopez-Alvarez require corroboration of the defendant‘s confession—that is to say evidence that fortifies, augments, or supports it4—from which a jury may infer that the defendant‘s confession was a trustworthy admission to core conduct that actually occurred. Corona-Garcia‘s presence in the United States may not prove he entered the United States near Calexico in April 1997, but it certainly goes far to confirm his admission that he did. Corona-Garcia‘s deportation at Calexico does not prove that he reentered near there, but that coincidental fact does strengthen the credibility of his confession.
Therefore, notwithstanding Corona-Garcia‘s protestations to the contrary, the district court did not err when it denied his motion for judgment of acquittal.
C. Downward Departure for Acceptance of Responsibility
Finally, Corona-Garcia also challenges his sentence. At his sentencing hearing, the district court granted a two-level reduction for acceptance of responsibility, pursuant to
Corona-Garcia argues that, because the district court found that a two-level reduction was warranted, he was then entitled to an additional one-level reduction by virtue of his full and prompt confession to INS investigators. We agree.
Section 3E1.1, titled “Acceptance of Responsibility,” requires that:
(a) [i]f the defendant clearly demonstrates acceptance of responsibility for his offense, decrease offense level by 2 levels.
(b) [i]f the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:
(1) timely providing complete information to the government concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently,
decrease the offense level by 1 additional level.
Presuming that a defendant has qualified for the initial two-level reduction under subsection (a), the disjunctive language
Here, although Corona-Garcia did put the government to its burden of proof and demanded a speedy trial, he also provided the government with timely and complete information concerning his reentry following deportation. Corona-Garcia made detailed confessions to two INS investigators before he was charged. In fact, he did so before he was even referred for prosecution. This confession established all of the necessary elements of a
Thus, in addition to the two-level reduction already granted by the district court under
III. CONCLUSION
Corona-Garcia‘s conviction under
I dissent. While I agree with the majority‘s decision concerning substitute counsel and the applicability of the Sentencing Guidelines, I do not join the part of the opinion that concerns the sufficiency of the evidence to convict Corona-Garcia. The majority‘s reasoning cannot be reconciled with the plain language of our decision in United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir.1992) or the Supreme Court‘s decision in Opper v. United States, 348 U.S. 84 (1954). Because I believe the government failed to offer evidence that independently verifies Corona-Garcia‘s confession that he entered the United States without the permission of the Attorney General, I would reverse his conviction.
The most important error in the majority opinion lies in its interpretation of the corpus delicti rule. That rule serves the important systemic interest in preventing the development of a coercive system of justice by discouraging government overreliance on confessions. As the Supreme Court explained, “a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964). See also Lopez-Alvarez, 970 F.2d at 589 n. 5.
Lopez-Alvarez and Opper require that the state provide independent corroboration of the gravamen of the offense, apart from a confession. Lopez-Alvarez, 970 F.2d at 591. Nonetheless, the majority says the independent evidence need only “fortify, augment, or support” the confession, citing Black‘s Law Dictionary. Slip op. 979 n. 4. While the term “corroboration” may be used for some purposes in the manner Black‘s and the majority suggest, it may not be given that construction in confession cases. Supreme Court and Ninth Circuit case law on corpus delicti clearly foreclose affording such an insubstantial meaning to the corroboration requirement. In Lopez-Alvarez, we construed Opper as requiring that the state must offer evidence that independently verifies that the criminal conduct constituting the gravamen of the offense has occurred. In doing so, we made it clear that the government may not solely rely on the defendant‘s confession.
After Opper, must there be any independent verification that criminal conduct has occurred? The answer is that independent verification is still required. However, the state no longer need introduce independent tangible evidence supporting every element of the corpus delicti. Instead, the state is required to support independently only the gravamen of the offense—the existence of the injury that forms the core of the offense and a link to a criminal actor—with tangible evidence.
Lopez-Alvarez, 970 F.2d at 591. We stated plainly that the evidence, apart from the confession, must “demonstrate” that the offense occurred. Id. at 590. The majority agrees that “the sum total of [the corroborating] evidence might well be insufficient, standing alone, to prove entry.” Slip op. at 979. If that is the case, the conviction cannot stand under Opper and Lopez-Alvarez. The evidence presented here simply does not establish independently that the gravamen of the offense occurred, and therefore is insufficient as a matter of law.
While Corona-Garcia‘s presence here corroborates that he entered the United States in some fashion, it does not corroborate the charge that he entered without the consent of the Attorney General. The majority mentions in a footnote the only evidence that could possibly corroborate the illegality of the entry, and its decision must hinge on the validity of that evidence. The evidence the majority notes is a “Certificate of Non-Existence” which purports to show that Corona-Garcia‘s file reflects that he never sought permission to enter. The principal problem with the majority‘s reliance on the Certificate, however, is that the government did not rely on it, either in its brief or at oral argument, notwithstanding the fact that the Certificate was raised at oral argument. Even more important, in response to a specific question the government identified for the court a list of all of the evidence on which the Court could properly rely, and, it deliberately omitted any reference to the Certificate of Non-Existence.1
The government‘s decision not to rely on the Certificate should have caused the majority concern about the Certificate‘s reliability; as it turns out, such concern is wholly warranted. As the majority correctly notes, the Certificate does not reflect that Corona-Garcia requested permanent residency in this country in 1988, even though he did. In addition, it does not reflect that he received temporary work authorization at that time, even though he did. However, the majority concludes that these defects are immaterial because the Certificate was only offered to prove that Corona-Garcia did not apply for permission to enter after 1996. But the point of Corona-Garcia‘s argument, and obviously the reason the government declined to rely on the Certificate, is that the conceded errors in the Certificate show that it is inherently unreliable and incomplete. If the government cannot explain why the Certificate fails to reflect Corona-Garcia‘s activities in 1988, (and it does not purport even to try to do so), we cannot assume that the Certificate accurately reflects his activities since 1996. Although the government recognizes this fact, the majority simply ignores it. I do not believe that we can uphold a conviction on the basis of unreliable government records on which the government itself is unwilling to rely.
Finally, in a half-hearted effort to find some corroboration, the majority says that the record shows that Corona-Garcia was deported to Mexico the previous year, and
The rule against the unfettered use of confessions in criminal cases has stood as a bulwark against the rise of an inquisitorial system of justice since the time of the common law. In this case, the result it requires may seem overly technical or unnecessarily formalistic. But the safeguards established by the common law of criminal procedure, like those established by the Bill of Rights, will not long stand if we choose to apply them only in cases where we happen to think they are important. There can be little doubt that the government failed to introduce sufficient independent evidence against Corona-Garcia, aside from his confession. Any fair evaluation of the evidence in this case compels that conclusion. I believe that we are required to reverse Corona-Garcia‘s conviction under Opper and Lopez-Alvarez. Accordingly, I respectfully dissent.