USA vs. CERVANTES, et al, Eastern District, Arkansas 4:08-cr-00314-SWW
Oct 18, 2010
Acaquittal on all counts (Counts 1 and 3)
USA v. Cervantes et al
U. S. Federal Court, Eastern District of Arkansas
CLERK'S MINUTES for proceedings held before Judge Susan Webber Wright: Jury Trial as to Reveriano Madrigal, Jesus Murillo concludes on 10/18/2010; 10:20 a.m. jury note conference; 1:10 p.m. jury note conference; 1:15 jury returned to courtroom with verdict; jury failed to reach a verdict as to Madrigal and a mistrial was declared; case against Madrigal will be reset and defendant allowed to remain on bond pending trial; Not guilty as to Jesus Murillo and judgment of acquittal will be entered; Court adjourns at 1:50 p.m. (AUSA: Anne Gardner, Patricia Harris; Attorney for Jesus Murillo is Milton A. DeJesus; USPO: Eric Myrene; Interpreter: Tomas Leon; Court Reporter: Judy Ammons.) (mcn)
Jose Luis Gonzalez vs. United States of America; Case NO. 2:05CV-00269 SWW-JVV. Eastern District, Arkansas
Oct 15, 2010
Judgment for Plaintiff, $813,000.00
Jose Luis Gonzalez vs. United States of America; Case NO. 2:05CV-00269 SWW-JVV. Eastern District, Arkansas (10/15/2010). Plaintiff is awarded $813,000.00 in compensatory damages on his Federal Tort Claims Act claim against the United States through the Bureau of Prisons.
Plaintiff was an inmate at a BOP facility, Forrest City, Arkansas during which time he was injured while participating in a prison sanctioned baseball game; he expeditiously sought medical treatment at the prison’s medical facility for his injuries but through a series of negligent acts his condition went undiagnosed and thus untreated for 30 days; when eventually x-rayed it was determined that he suffered a fracture of his tibia and fibula. Surgery was performed at a Memphis, TN hospital. The injuries occurred on July 28, 2004; surgery was performed on August 27, 2004.
Plaintiff initiated a series of Bivens actions, FTCA claims and constitutional claims, seeking damages for pain, suffering and disability resulting from the delay in treatment. The United States government filed a series of summary judgment motions throughout the course of litigation, which winnowed the claims to a surviving Bivens action and an FTCA claim. In February of 2010 the Bivens action for deliberate indifference was dismissed through summary judgment; the FTCA claim for negligence survived to trial and thus the proper and only defendant was the United States. The matter wound its way through the administrative and pre-trial process and ultimately was tried to the Honorable United States District Judge on August 30 and 31, 2010.
Before trial could commence, Plaintiff completed his sentence and was deported back to his home country. Because of his criminal conviction plaintiff was unable to make entry into the United States and therefore Plaintiff’s counsel traveled to Plaintiff’s home country and took Plaintiff's deposition. Leave was sought and granted for Plaintiff to appear through deposition.
Expert medical testimony by Dr. James Keever, M.D. Texarkana, Texas, established legally sufficient negligence, which the Honorable Court found to be gross negligence resulting in permanent disability, pain, suffering and mental anguish. Plaintiff’s counsel exposed questionable and discredited declarations by medical personnel regarding their conduct and medical decisions. The 22 page Memorandum and Order containing the Findings of Fact and Conclusion of Law and Order are found on PACER.
Faustino Santana v. John Ashcroft
Jan 10, 2005
Testing "collateral estoppel" in immigration
Petitioner Faustino Santana-Albarran ("Santana-Albarran") seeks review of the denial of his application for cancellation of removal and adjustment of status under § 240A(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b) (1). 1 The Immigration Judge ("IJ") found that Santana-Albarran could prove three out of the four statutory requirements for cancellation of removal, but that he failed to establish that he had been physically present in the United States for a continuous ten-year period. The Board of Immigration Appeals ("BIA") affirmed without opinion. Santana-Albarran seeks review of the decision arguing that his continuous physical presence in the country had already been established in the removal hearing and should therefore have been given preclusive effect in the subsequent cancellation hearing; we DENY the petition for review.
Before proceeding..., we must first address our jurisdiction to entertain his petition for review. The INA specifically divests jurisdiction of a court to review judgments regarding the granting of discretionary relief, including the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B). The denial of relief based on the ground that the alien has failed to demonstrate a continuous physical presence, however, is a non-discretionary factual determination and properly subject to appellate review. Elnemr v. INS, 95 Fed.Appx. 121, 2004 WL 515858, at *4 (6th Cir. Mar.15, 2004);
The first issue which Santana-Albarran raises in his petition is that his continuous physical presence in the country had been established in the removal hearing, and therefore, the IJ erred by failing to give this finding preclusive effect in his subsequent cancellation hearing. We have held that "[t]he availability of collateral estoppel is a mixed question of law and fact which this court reviews de novo." Hammer v. INS, 195 F.3d 836, 840 (6th Cir.1999), cert. denied, 528 U.S. 1191, 120 S.Ct. 1247, 146 L.Ed.2d 105 (2000). Applying this standard, we conclude that the doctrine of collateral estoppel is inapplicable in this case.
The United States Supreme Court has defined the doctrine of collateral estoppel
as providing that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). The Court has applied the doctrine of collateral estoppel in the context of "an administrative agency ... acting in a judicial capacity" as well. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966).
Invoking the doctrine of collateral estoppel, Santana-Albarran argues that the IJ's finding in the removal hearing that "he last entered the United States in 1985" should be treated as an established fact in the cancellation hearing, and therefore, demonstrates that he has been in the country for a continuous ten-year period. J.A. at 115 (Removal Hr'g Tr.).
Collateral estoppel is inapplicable because resolution of the issue of when Santana-Albarran last entered the United States was not "necessary and essential" to the judgment in the removal hearing that his presence was unlawful. The removal hearing sought to establish Santana-Albarran's current status in the country. Whether the last entry was in 1985 or 1995, the dispositive issue at the removal hearing was whether at the time he entered, whenever that might have been, did he do so without permission. There is no time requirement that needs to be established in the removal hearing. By contrast, in the cancellation hearing, the exact date that he entered the country is critical for determining if the requisite ten- year period has been met.
United States vs. Perez-Murguia
Nov 29, 1993
Double Jeopardy clause does not apply
Among others, Ambrosio Perez-Murguia, appeals his conviction for conspiracy to distribute cocaine and marijuana.
We affirm the convictions of Frayer, Gary Haney, and Perez-Murguia. We reverse the conviction of Larry Haney.
The indictments in this case were the result of an investigation by agents of the United States Customs Service and the Drug Enforcement Agency (DEA). The investigation began in early 1991, when an informant introduced Customs Service Agent John Turner to Jerry Massey, a drug- dealer living near Saltillo, Mexico. After that introduction, Agent Turner, using the alias of "John Anthony," had numerous telephone conversations with Massey, and Agent Turner recorded each one. In those taped conversations, Agent Turner and Massey extensively discuss drug transactions. Through his investigation, Agent Turner came to believe that Massey was the "kingpin" of a large drug operation. Although Massey was indicted in this case, he is incarcerated in Mexico and was not extradited in these proceedings.
In early summer 1991, Massey agreed to sell Agent Turner 150 pounds of marijuana at $750 a pound. Agent Turner planned to have another undercover agent on the Mexican border take delivery of the marijuana from an individual known to the agents as "Paco" and pay Paco $90,000. Agent Turner would then meet Massey's representative in Little Rock and pay that individual $22,500.
After the marijuana deal fell through, Agent Turner and Massey negotiated for the sale of 100 kilograms of cocaine. One kilogram would be "fronted" and delivered
Agent Turner in Little Rock, Arkansas, and Agent Turner would pick up the remainder in Houston, Texas. On September 6, 1991, Massey told Agent Turner that a man named "Hueto" would deliver the kilogram of cocaine to Little Rock. A week later, Agent Turner and Agent Fehrenbach of the DEA met "Hueto," a/k/a Perez-Murguia, at the Otter Creek Holiday Inn in Little Rock. Perez-Murguia delivered one kilogram of cocaine and arrangements were made for the other 99 kilograms to be delivered in Houston, Texas, later in September 1991.
In October and November 1991, Agent Turner continued negotiations with Massey for further drug transactions. In early December, Massey agreed to deliver 40 kilograms of cocaine to Agent Turner's representatives in Dallas for $21,500 per kilogram (a total sale price of $860,000). Of that price, $19,500 per kilogram was to be paid at the time of delivery in Dallas and $2,000 per kilogram ($80,000) was to be paid to people in Arkansas working under Massey's direction: $20,000 to Frayer and $60,000 to Gary Haney. Agent Turner also convinced Massey to advance him $3,000 in travel expenses, feigning unhappiness about having travelled to Houston without completing a drug deal. Massey told Agent Turner that a man named "Leon" would meet him with the money.
Appellant asserts that his conviction puts him in double jeopardy because he had already been convicted for distribution in federal district court in Texas.
The double jeopardy bar applies only to prosecutions or convictions which cannot survive the "same elements" test. United States v. Dixon, --- U.S. ----, ----, 113 S.Ct. 2849, 2859, 125 L.Ed.2d 556 (1993). The same elements test inquires whether each offense contains an element not contained in the other; if so, they are not the same offense and the Double Jeopardy Clause does not bar additional punishment and subsequent prosecution. Id. Perez-Murguia was convicted in Texas for possession of cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). The conviction at issue here is for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. 2 Each of the offenses involve different elements. 3 Thus the Double Jeopardy Clause does not prevent a conspiracy prosecution after a prosecution for possession with intent to distribute.
U.S. vs Martina Velasquez Cruz
Apr 01, 1991
Litigating the "incidental connection" test in immigration crimes
Martina Velasquez-Cruz appeals from a final judgment entered in the United States District Court for the Eastern District of Arkansas 1 upon a jury verdict, finding her guilty of three counts of willful transportation of illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). The district court sentenced her to time served and a special assessment, and recommended deportation from the United States. On appeal, defendant argues that her conviction was not supported by sufficient evidence. For the reasons stated below, we affirm the judgment of the district court.
In 1989, six illegal aliens emigrated from Ecuador to America. The aliens initially came to Los Angeles, California, but sought to move to New York City. While the aliens were in Los Angeles, they met defendant, an illegal alien who was applying for amnesty from the government, and also wanted to move to New York. The aliens pooled their money, and bought a used car and a van. In March 1989, defendant, the aliens, and Pedro Mendez-Pacheco (another illegal alien) left Los Angeles. For at least part of the journey, Mendez-Pacheco drove the van and defendant drove the car. The parties disagree as to whether defendant arranged the purchase of the car, and as to whether she did all the driving.
On March 13, 1989, defendant was driving the used car through Lonoke, Arkansas, and Mendez-Pacheco was driving the van. Craig Weinbrenner, a United States Border Patrol Agent, pulled the car over, and discovered that defendant, Mendez-Pacheco and their passengers were illegal aliens. Weinbrenner then arrested both the drivers and their passengers for illegal alienage.
Defendant was later charged and was found guilty by a jury of willful transportation of illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(1)(B) (1988).
At trial, and again after trial, defendant moved for a judgment of acquittal on the ground that the government's evidence of "willful furtherance" was insufficient to support a conviction. The district court denied each motion on the ground that there was sufficient evidence to support the jury's verdict. See United States v. Velasquez-Cruz, No. LR-CR-88-38(2), slip op. (E.D.Ark. Aug. 11, 1989) (order denying motion for judgment of acquittal) (Velasquez-Cruz ). The district court sentenced defendant to time served, a special assessment, and deportation from the United States. This appeal followed.
In this case, the parties disagree as to (1) the proper definition of "willful furtherance" under Sec. 1324(a)(1) (B) and (2) whether, under the appropriate definition, sufficient evidence exists to support defendant's conviction. Each issue will be addressed in turn.
Under Sec. 1324(a)(1)(B), a defendant may not be convicted for merely driving a vehicle containing illegal aliens. Instead, the government must show that "the defendant acted willfully in furtherance of the alien's violation of the law." United States v. Hernandez, 913 F.2d 568, 569 (8th Cir.1990) (Hernandez ), [ REPRESENTED BY MILTON A. DEJESUS, see other case histories ]
Thus, the district court apparently applied the Ninth Circuit's "incidental connection" test for ascertaining whether a defendant has acted "in furtherance" of illegal immigration. See United States v. Moreno, 561 F.2d 1321, 1322 (9th Cir.1977) (where transportation of an illegal alien is "only incidentally connected to the furtherance of the violation of law.... It was too attenuated to come within the boundaries of [Sec. 1324]") Defendant suggests that the district court erred in using the Moreno standard. Specifically, defendant argues that in order to establish a violation of Sec. 1324(a)(1) (B), "the government must prove that the defendant transported an alien with the purpose of supporting or promoting his or her illegal presence."
We therefore hold that defendant's conviction was supported by sufficient evidence, and we accordingly affirm the judgment of the district court.
Tawfik vs. United States, BIA Precedent Decision
Sep 11, 1990
Reversed, Remanded, LPR status restored
This case is designated a Precedent Decision in immigration law on evidentiary Issues, establishing the standard for determining whether specific evidence is "substantial and probative" and therefore sufficient to support the administrative decision; the standard is now codified in U.S. Federal Regulations and the case is often cited in this context.
U. S. vs Hernandez
Sep 10, 1990
Affirmed conviction, transporting aliens
Miguel Reyna-Hernandez appeals from a judgment of the district court 1 rendered in a bench trial finding him guilty of two counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B) (1988). On appeal Reyna-Hernandez asserts the evidence was insufficient to sustain the verdict. We affirm. Reyna-Hernandez was arrested in a sting operation set up by the United States Border Patrol. A Border Patrol agent posing as an employer was contacted by co-defendant Cerda, who used the name "Antonio." The agent agreed to pay Cerda $600 per worker that Cerda delivered to Arkansas. Cerda and Reyna-Hernandez then drove six illegal aliens from near the Texas border to Arkansas. During the trip, Cerda and Reyna-Hernandez let the six aliens out into the desert to slip around a highway check point, referred to as a "puente." Upon arriving in Arkansas, Cerda and Reyna-Hernandez were arrested by the Border Patrol. At trial, two of the transported aliens testified that they had told Reyna-Hernandez that they did not have "papers" and Reyna-Hernandez responded that not having papers was not a problem. Additionally, Reyna-Hernandez warned these two aliens that if they were caught, he would lose his own papers and thus his right to be in the United States, and that the aliens would be sent back to Guatemala.
Two of the transported aliens testified for the government, and both indicated that Reyna-Hernandez was the person who drove them from Texas to Arkansas.
Reyna-Hernandez urges that the government's failure to adduce the specific nationality of these two witnesses was fatal to its case because without such information there was insufficient evidence to show that they were in the United States illegally.
The trial judge noted that it would have been better if the government had directly asked each witness his nationality, but concluded that the only reasonable inference to be drawn from the evidence was that the two witnesses were in the United States illegally. (Tr. p. 66-68).
We agree with the trial judge and note that proof of specific nationality is not an element of the offense. 3 The defendant's knowledge of the aliens' illegal status, was proven by both the defendant's words and deeds. The two transported aliens testified that they told Reyna-Hernandez that they had no papers, and he replied this was no problem, that he would see to it they made it to Arkansas. In addition, the defendant assisted the aliens in navigating around a highway checkpoint. The evidence is sufficient to show that Reyna-Hernandez knew the aliens were in the country illegally. Reyna-Hernandez does not challenge the sufficiency of the evidence on the fourth element of the offense.
we AFFIRM the judgment of the district court.
The trial court relied on the two aliens' testimony that they were threatened to be sent back to Guatemala if discovered, a statement which they did not challenge. In addition, the two transported aliens testified that they did not have and never had papers or authorization to stay in the United States. The defendant argues that the term "papers", which was used throughout the trial to refer to legal status to stay in the United States, is ambiguous. We agree with the government that "papers" is commonly understood in this context to mean legal authorization to be in the United States,
Luther Hall vs Lockhart
Nov 25, 1986
Writ of Habeas Corpus denied
Appellant Luther Hall appeals from a final judgment entered in the District Court for the Eastern District of Arkansas denying a writ of habeas corpus. For the reasons discussed below the judgment of the district court is affirmed. Hall was convicted of two counts of capital murder and one count of second degree murder. He was sentenced to life imprisonment without parole for the capital murders and thirty years for the second degree murder. Both convictions were affirmed by the Arkansas Supreme Court. Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (Ark.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983). Hall's petition for habeas corpus was denied by the district court .
Petitoner on appeal argues that the trial court erred in admitting illegally obtained evidence and a coerced confession, that the prosecution used perjured testimony against him, that his counsel's assistance was ineffective, and that he has newly discovered evidence which proves his innocence.
He contends that the gun seized from an automobile in which he was a passenger and which linked him to one of the murders was obtained in violation of the Fourth and Fourteenth Amendments and therefore should not have been admitted at trial.
He next urges this court to grant relief on the grounds that the incriminating statement he made the police was coerced. He argues that he was psychologically coerced into making a statement because he was held in an interrogation room for over five hours prior to booking wearing only a T- shirt, pants, and slippers, was shown statements made by his coconspirators, and was ultimately held incommunicado in maximum security over the weekend before he made a statement.
As the third ground for error Hall argues that he was denied a fair trial because the prosecution knowingly or negligently used perjured testimony against him at trial.
WOLLMAN, Circuit Judge, concurring and dissenting. I find this to be a troubling case. Granted that the killings (executions, really) were brutally carried out, the tardily-submitted affidavits merit fuller consideration when viewed in the light of the evidence against Hall. Moorman's trial testimony was at best equivocal on whether Hall had a weapon in his possession at the time of the killings. True, Hall admitted in his statement that he drove one of the cars to the scene of the killings and stood watch while Moorman, Stephenson, and a third man fired into the trunk. Hall also stated, however, that at the time Moorman and the others came to his home and asked him to join them he had no idea that they planned to kill the victims. Moreover, he denied having a pistol in his possession at the time of the killings. Moorman and Stephenson now claim to be prepared to testify to the truth of Hall's denial of complicity. Indeed, Moorman stands ready to testify that Hall was forced to participate in the killings. I agree that recantations are to be viewed with a skeptical eye, especially when they come from the likes of Moorman and Stephenson. That said, however, I believe that Hall should be afforded an evidentiary hearing on his claim of newly discovered evidence. See Pruitt v. Housewright, 624 F.2d 851, 853 (8th Cir.1980) (Bright, J., dissenting). I concur in the remainder of the majority opinion.