Filed: Sep. 20, 2019
Latest Update: Sep. 20, 2019
Summary: ORDER GRANTING MOTION TO DISMISS COUNT 2 OF THE INDICTMENT JOHN T. RODGERS , Magistrate Judge . THIS MATTER comes before the Court on Defendants' July 26, 2019 joint motion to dismiss Count 2 of the Indictment. ECF No. 100. The United States is represented by Assistant U.S. Attorney Matthew F. Duggan. Defendants Tony Rafael Baeza-Cruz, David Filiberto Dominguez-Ku, Divein Fernando Tobon-Munoz, Jose Armando Sulub-Chan, and Juan Carlos Mis-Balam have waived their presence in this case and ar
Summary: ORDER GRANTING MOTION TO DISMISS COUNT 2 OF THE INDICTMENT JOHN T. RODGERS , Magistrate Judge . THIS MATTER comes before the Court on Defendants' July 26, 2019 joint motion to dismiss Count 2 of the Indictment. ECF No. 100. The United States is represented by Assistant U.S. Attorney Matthew F. Duggan. Defendants Tony Rafael Baeza-Cruz, David Filiberto Dominguez-Ku, Divein Fernando Tobon-Munoz, Jose Armando Sulub-Chan, and Juan Carlos Mis-Balam have waived their presence in this case and are..
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ORDER GRANTING MOTION TO DISMISS COUNT 2 OF THE INDICTMENT
JOHN T. RODGERS, Magistrate Judge.
THIS MATTER comes before the Court on Defendants' July 26, 2019 joint motion to dismiss Count 2 of the Indictment. ECF No. 100. The United States is represented by Assistant U.S. Attorney Matthew F. Duggan. Defendants Tony Rafael Baeza-Cruz, David Filiberto Dominguez-Ku, Divein Fernando Tobon-Munoz, Jose Armando Sulub-Chan, and Juan Carlos Mis-Balam have waived their presence in this case and are excused from any attendance pursuant to FED. R. CRIM. P. 43. Each defendant is represented by counsel.
Count 2 of the Indictment in this case alleges a violation of 8 U.S.C. § 3125(a)(2), Eluding Examination and Inspection by Immigration Officers. ECF No. 15. On July 24, 2019 the Ninth Circuit decided United States v. Corrales-Vazquez, No. 18-50206, 2019 WL 3311349 (9th Cir. July 24, 2019). The Circuit Court of Appeals there held that the government does not prove that a person has "eluded examination and inspection" as proscribed by 8 U.S.C. § 3125(a)(2), if that person has not entered the United States at a designated border crossing point.
Based on this recent Ninth Circuit decision, the Court invited the parties to submit additional briefing regarding the potential impact of the case by July 26, 2019. ECF No. 99. Defendants' filed the instant joint motion to dismiss; the government did not file supplemental briefing and did not file a response to Defendants' motion to dismiss.
Corrales-Vazquez holds that for a Section 1325(a)(2) charge to stand, entry must have been made at a port of entry that was open for inspection. On September 19, 2019, the parties submitted a supplement which indicates they agree "[n]one of the acts alleged in the Indictment occurred at a designated port of entry that was open for inspection and examination." ECF No. 113 at 2. In light of Corrales-Vazquez, the conduct alleged in this case is not a violation of Section 1325(a)(2). Accordingly, Defendants' motion to dismiss, ECF No. 100, is GRANTED and Count 2 is DISMISSED.
IT IS SO ORDERED. The District Court Executive is directed to enter this order and furnish copies to counsel.
