United States v. Jose Nunez-Beltran , 434 F. App'x 640 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50365
Plaintiff - Appellee, D.C. No. 3:10-cr-00522-CAB-1
v.
MEMORANDUM *
JOSE LEONARDO NUNEZ-BELTRAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted May 4, 2011 **
Pasadena, California
Before: PREGERSON, FISHER, and BERZON, Circuit Judges.
Jose Nunez-Beltran was stopped while attempting to run across the border
through a vehicle lane. He was advised of his Miranda rights. He then admitted
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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that he was a Mexican citizen, born in Sinaloa, Mexico, and that he did not possess
any documents allowing him to enter the United States.
The government filed an information charging Nunez-Beltran with one
count of improper entry by an alien in violation of 8 U.S.C. § 1325. The day
before trial, the government filed a bill of particulars, specifying that it intended to
proceed on theories under 8 U.S.C. §§ 1325(a)(1) and (a)(2). At the end of the
bench trial, Nunez-Beltran was convicted of violating 8 U.S.C. § 1325(a)(1), and
sentenced to sixty days of imprisonment. We now affirm.
1. “An indictment is considered duplicitous if a single count combines two
or more different offenses.” United States v. Renteria, 557 F.3d 1003, 1007 (9th
Cir. 2009). We aren’t certain whether 8 U.S.C. §§ 1325(a)(1) and (a)(2) set forth
different offenses or different means of committing the same offense. Cf. Renteria,
557 F.3d at 1008. That inquiry is a difficult one, see United States v. Arreola, 467
F.3d 1153, 1157 (9th Cir. 2006); Schad v. Arizona, 501 U.S. 624, 643 (1991)
(plurality opinion), but one we fortunately need not undertake.
“Duplicity in an indictment . . . constitute[s] reversible error only if” it is
prejudicial. United States v. Aguilar, 756 F.2d 1418, 1422 (9th Cir. 1985). Nunez-
Beltran has not articulated any viable theory of how the alleged duplicity
prejudiced him and we see none.
2
At the conclusion of the bench trial, the magistrate judge stated:
[T]he Court finds that the Government has met their burden of proof
. . . beyond a reasonable doubt and that the defendant is guilty of the
offense charged, 1325(a)(1).
There can therefore be no doubt that the magistrate judge found Nunez-Beltran
guilty of the violation set forth in § 1325(a)(1), and that the magistrate judge did
not rely on the § 1325(a)(2) theory in determining Nunez-Beltran’s guilt.
Nunez-Beltran asserts that the information’s alleged duplicity caused him to
be convicted on the § 1325(a)(1) theory on the basis of evidence that was only
admissible in support of the § 1325(a)(2) theory. We disagree. There is no reason
to think that either the magistrate judge or the district judge erroneously considered
inadmissible evidence. For that matter, we fail to see how any such error would
have been avoided by an information that alleged violations of 8 U.S.C. §§
1325(a)(1) and (a)(2) in separate counts, as Nunez-Beltran has not demonstrated
that severance would have been appropriate.
We are not persuaded by Nunez-Beltran’s claim that the alleged duplicity
prejudiced him by providing inadequate notice of the government’s theory of
prosecution. Nunez-Beltran does not explain how the lack of notice caused him
prejudice, and we are unable to conclude that it did.
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2. We also reject Nunez-Beltran’s argument that there was insufficient
evidence that he was an alien for the district court to convict him of violating §
1325(a)(1) beyond a reasonable doubt.1 “When the primary evidence of
citizenship offered by the Government consists of the defendant’s own admissions,
those admissions require some independent corroborating evidence in order to
serve as the basis for a conviction.” United States v. Hernandez, 105 F.3d 1330,
1332 (9th Cir. 1997) (quotation omitted). “To satisfy the corroboration
requirement, the Government must introduce independent evidence tending to
establish the trustworthiness of the admissions, unless the confession is, by virtue
of special circumstances, inherently reliable.” Id. (quotation omitted).
This corroboration requirement is easily met here. Nunez-Beltran’s attempt
to cross the border without documentation and without inspection, as well as his
repeated admissions that he was born in Mexico, his admission that he had never
been to the United States, and his admission that his parents and wife were born in
Mexico and were Mexican citizens all “tend[] to establish the trustworthiness of
[his] admission[]” of alienage. Hernandez, 105 F.3d at 1332 (quotation omitted);
1
Because the issue was not raised, we do not address whether attempting to
enter the United States on foot through a vehicle lane at a designated port of entry
constitutes an attempt to enter at a “time or place other than as designated by
immigration officers.” 8 U.S.C. § 1325(a)(1).
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see also United States v. Garcia-Villegas, 575 F.3d 949, 951 (9th Cir. 2009).
These statements and actions, and the circumstances in which they were made or
taken, eliminate any reasonable doubt as to the accuracy of Nunez-Beltran’s
admission that he was not a United States citizen.
AFFIRMED.
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