UNITED STATES оf America, Plaintiff-Appellee, v. Tomas HERRERA-OCHOA, also known as Jose Ochoa-Herrera, Defendant-Appellant.
No. 00-50046.
United States Court of Appeals, Fifth Circuit.
March 19, 2001.
247 F.3d 495
Giles takes issue with the merits of the decision to offset the recovery. Because the decision to award front pay is within the discretion of the district court, so also we review the decision to offset that award for abuse of discretion. Thе district court acted well within that discretion.
Giles baldly asserts that the collateral source rule bars setting off the benefits against the front pay award.37 Giles cites Davis for the proposition that “when an employee has bargained for a fringe benefit as additional consideration for employment, compensation received by the employee under that fringe benefit should not be deducted from damages awarded to the emplоyee,” 18 F.3d at 1244. Giles fails, however, to explain how that proposition might apply to this case.
Plainly, the benefits used to offset the front pay were not additional, bargained-for compensation but were instead compensation for the injury out of which this case arises. In seeking to apply Davis‘s language to the facts of this case, Giles misapprehends one of the central tenets of Davis: “Properly interpreted ..., the collateral source rule prevents tortfeasors from paying twice for the same injury—a result that would achieve both over-deterrence and overcompensation.” Id. at 1244 n. 21.
The collateral source rule would do exactly that—GE is already obligated to pay Giles‘s disability pension and LTD benefits to compensate for his inability to work in the future. Failure to set those amounts off against his front pay award—which is designed to accomplish the samе purpose—would overcompensate Giles. Accordingly, the court acted within its discretion in setting off the benefits from the front pay award.
VI.
In conclusion, the jury‘s compensatory award is excessive, even as limited by
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
M. Carolyn Fuentes (argued), San Antonio, TX, for Defendant-Appellant.
Before REYNALDO G. GARZA, STEWART and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Tomas Herrera-Ochoa (“Herrera“) appeals the district court‘s finding that the evidence was sufficient to convict him of unlawfully being in the United States after deportation in violation of
FACTUAL & PROCEDURAL HISTORY
While walking in a high-risk crime area, Herrera was arrested by Officer Ruben Mendoza (“Mendoza“) in El Paso, Texas, on April 2, 1999, after he and his companion turned and walked away briskly upon seeing Mendoza. After Herrera informed him of his name and birth date, Mendoza was told by a radio dispatchеr that Herrera was a possible deported felon. Subsequently, Mendoza accompanied Herrera to police headquarters for fingerprinting and to the Border Patrol office. The immigration authorities at the Border Patrol office placed Herrera‘s fingerprints through the Ident system and confirmed that Herrera was an undocumented alien. Herrera later confessed to an INS special agent that he was a citizen of Mexico who had previously been deported from the United States and that he had not received permission from the Attorney General to reapply for legal admission.
Herrera was indicted for being an alien, who had illegally re-entered or was “found in” the United States without the consent of the Attorney General, after having been deported in violation of
DISCUSSION
A. Motion to Suppress the A-File
Herrera asserts that the trial court erred when it denied Herrera‘s motion to suppress his A-file because it found that Herrera was illegally stopped and seized, and it suppressed his fingerprints and his confession on that basis.2 Herrera contends that just as his fingerprints were suppressed, his A-file should be suppressed as a fruit of his illegal seizure.
“In reviewing a district court‘s ruling on a motion to suppress, we review questions of law de novo, and accept the trial court‘s factual findings unless they are clearly erroneous.” United States v. Castro, 166 F.3d 728, 731 (5th Cir.1999). This Court also reviews the evidence in the light most favorable to the government, the prevailing party in the instant case. See id.
A de novo review of the trial court‘s legal conclusions indicates that it correctly relied on United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir.1999) (stating that “a defendant‘s INS file need not be suppressed because of an illegal arrest“), and United States v. Pineda-Chinchilla, 712 F.2d 942, 944 (5th Cir.1983) (noting that since a defendant “has no legitimate expectation of privacy in the file, he has no standing to challenge its introduction into evidence“). Although Herrera attempts to distinguish these cases from the present case on the basis that the defendants did not establish that the files were obtained through exploitation of the initial illegality of the defendants’ unlawful arrest, we find this argument unavailing.3 The government correctly argues that although the defendants in those cases may not have established that the file was a “fruit of the poisonous tree,” this Court considered these arguments. Pineda-Chinchilla, 712 F.2d at 943 (stating that the question of whether the A-file should “be suppressed as the product of an illegal arrest because [it is] ‘thе fruit of the poisonous tree‘” should be answered in the negative); see also Roque-Villanueva, 175 F.3d at 346 (discussing the “fruit of the poisonous tree” in Pineda-Chinchilla). Therefore, the district court did not err regarding this issue.4
Herrera also argues that the district court erred when it convicted him of violating
This Court must affirm a conviction if a rational trier of fact could have found, viewing the evidence and all inferences therefrom in the light most favorable to the verdict, that the evidence established the essential elements of the crimе beyond a reasonable doubt. United States v. Kates, 174 F.3d 580, 582 (5th Cir.1999). The government argues that United States v. Santana-Castellano, in which this Court held that an undocumented alien was “found in” the United States in prison, is controlling. 74 F.3d 593, 598 (5th Cir. 1996). Addressing a sentencing appeal only we stated:
[w]here a deported alien enters the United States and remains here with the knowledge that his entry is illegal, his remaining here until he is “found” is a continuing offense ... [t]his analysis gives common sense effect to the “found in” language of
§ 1326 , which is obviously intended to extend the definition of the offense to include those situations where the alien is the only onе who knows the precise date of his surreptitious entry and knows that he has violated the law in reentering the country after he has been arrested and deported.
Like the indictment in the instant case, the indictment in Santana-Castellano charged the defendant with being found in the United States on a specific date. Id. at 598. The critical distinction between the cases, however, is that the defendant in Santana-Castellano pled guilty to the charge thereby conclusively establishing that he was found in the United States on the date charged in the indictment, given his inсarceration at the Texas Department of Criminal Justice for injury to a child. Here, unlike in Santana-Castellano, we have a bench trial and there is no clear record evidence that Herrera was found in the United States on or about April 2, 1999, the date charged in the indictment.
The government argues nonetheless that the docket entry which notes “4/2/99—Arrest of Tomas Herrera-Ochoa,” is record evidence that proves Herrera‘s guilt. We note, however, that while the docket entry indicates that Herrera was arrested on April 2, 1999, it does not reveal adequate information such that it may satisfy the government‘s burden to prove an essential element of the crime beyond a reasonable doubt. For instance, the docket entry does not reveal where Herrera was arrested or by whom he was arrested.
The government similarly contends that Herrera‘s appearance at trial, as well as the documents in his A-file, may be used to infer that Herrera was found in the United States on or about April 2, 1999. We find this argument unpersuasive, given the untenable choice such an argument forces a criminal defendant to make. As Herrera correctly argues, a criminal defendant would be forced to choose between his Sixth Amendment right to be present at trial or his Fifth Amendment due process right that the government prove each and every element
The instant case turns on whether or not the government presented sufficient probative evidence to establish beyond a reasonable doubt—the “found in” element it charged in the indictment. For reasons not revealed by the record, the government did not present the same proof at trial that it did at the motion to suppress hearing. Though called at the suppression hearing, Mendoza, the arresting officer, did not testify at trial that he found Herrera in El Paso on April 2, 1999, as charged in the indictment. Likewise, Herrera‘s admission that he had previously been deported and that he had not been granted permission by the Attorney General to reenter the United States was not put in evidence at trial. Having survived the suppression hearing with the A-file still in its quiver, the government relied on this one arrow of evidence in its quest to hit the bullseye.
The district court‘s oral reasons for judgment of conviction relied principally on the contents of the A-file plus inferences the court as finder of facts drew from the file. Nothing in the transcript suggests that the district court relied on anything it heard at the suppression hearing or on the docket entry that the government clings tо in its appellate argument. Premised upon the prior authentication of the A-file as that of Herrera‘s, the district court compared the photo in the file with the defendant‘s appearance in court and concluded that they were the same person. Likewise, it credited as accurate and probative the A-file documents showing Herrera‘s removal from the United States on December 19, 1997, and the absence of documеnts showing that Herrera had been granted permission to re-enter the United States after the removal date. The court completed its analysis by noting that because Herrera was in the courtroom on November 15, 1999, it was reasonable to infer that he was found in the United States on April 2, 1999, as charged in the indictment.
We are presented with the novel questions of whether the conviction of Herrera under
The government suggests, however, that this court may take judicial notice of a district court docket entry regarding Herrera‘s arrest warrant which, according to the government, establishes that Herrera was in the United States on April 2, 1999. Herrera responds that the docket entry does not indicate where Herrera was located at the time of his arrest and, therefore, it is not the proper subject of judicial notice because it does not indisputably establish that Herrera was in the Unitеd States. Herrera further suggests that this
Judicial notice may be taken of any fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuraсy cannot reasonably be questioned.”
This Court has taken judicial notice of facts in a criminal case tried to a judge rather than to a jury. Burjan, 596 F.2d at 694. In Burjan, the defendant argued that the government failed to prove that the District Court for the Canal Zone had jurisdiction because it did not show that the alleged offenses occurred within the Canal Zone. Id. at 693. This Court took notice, however, of the boundaries of the Canal Zone, noting that because the defendant had waived a jury, this Court could take notice of facts without offending the Sixth Amendment guarantee of the right to trial by jury. Id. at 694. Further, as the facts were indisputable, there was no violation of the right to confront witnesses.
Whether it is appropriate to take judicial notice in this case of the trial court records, indicating that Herrera was found in the United States, is unclear as such a fact may not be one “whose accuracy cannot reasonably be questioned.” Although Herrera admitted his presence in the United States in pretrial pleadings, and although during the suppression hearing, Officer Mendoza testified that he detained Herrera in El Paso on the date alleged in the indictment, the government did not present this evidence at trial. Taking judicial notice of the trial cоurt record arguably infringes on Herrera‘s Sixth Amendment right to confront witnesses. In Burjan, taking judicial notice on appeal did not offend the right to confront witnesses where “the facts judicially noticed—the location of geographical boundaries are indisputable” as they could be established by reference to official maps. Id. at 694.
Further in Burjan, this Court noted that although the prosecution must establish jurisdiction, the standard of proof is merely a preponderance of the evidence. Id. Taking judicial notice in this case of an essential element of the crime, however, potentially infringes on Herrera‘s right to have each element proved beyond a reasonable doubt.
In addition, the government has neither cited nor have we found any case in which an appellate court has taken judicial notice of an element in a criminal case that was not an adjudicative fact such that it was “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
The government‘s trial strategy left the trial court with a dearth of evidence and with only a common sense analysis with which to assess the disputed issues. The court reasoned that Herrera‘s presence in the cоurt room on November 15, 1999, was necessarily linked to his having been found in the United States on April 2, 1999, as charged in the indictment. To the defendant‘s argument for a directed verdict of acquittal because of the missing “found in” element, the court responded, “You think they went over to Mexico and brought him to the courtroom today?” As alluring as the district court‘s finding appears, we conclude after careful review of the record and of the applicablе cases, that Herrera‘s conviction must be reversed. As previously discussed herein, Herrera‘s presence in the courtroom pursuant to his Fifth and Sixth Amendment rights under the Constitution is not inextricably linked to the government‘s charge in the indictment.
Simply put, the government had readily available to it all the evidence needed to prove its case. Its having failed to successfully marshal the evidence at trial, the trial court consequently erred in finding the evidenсe sufficient to support the conviction.
CONCLUSION
Because we find that the district court did not err when it denied his motion to suppress his A-file, but that it erred when it convicted Herrera under
AFFIRMED IN PART. REVERSED IN PART.
REYNALDO G. GARZA, Circuit Judge, dissenting:
I respectfully dissent in the majority opinion because I believe that we are letting a felon go unpunished.
I first thought that if an alien was in court, his presence there would be sufficient to convict on the point that he was found in the United States. That is what I think the district judge thought when he said this, “Do you think that they went to get him in Mexico and brought him here?” However, I realize that this would raise a constitutional question of the defendant having to testify, so I do not believe that my dissent should be on this point.
However, the same district judge heard both the evidence at the suppression hearing and the guilt hearing and he had a perfect right to depend on all the evidence that he had heard in both hearings when he entered is judgment. Therefore, I think that the evidence the majority says was not presented at the trial was not necessary, for it had already been heard by the district judge at the suppression hearing. For this reason, I think the majority makes a mistake in saying that the government failed to prove what they had to prove at the trial, and for this reason I dissent.