Opinion
CR-19-02159-001-TUC-JGZ (DTF)
03-21-2022
United States of America, Plaintiff, v. Silvestre Merino-Lopez, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald, United States Magistrate Judge.
Before the Court are Defendant Silvestre Merino-Lopez's Motion to Suppress (Doc. 76), Motion to dismiss Count One of the Indictment based on lack of jurisdiction (Doc. 117), Motion to Suppress Defendant's Consent to Search His Cellphone (Doc. 120), Motion to Dismiss Count One of Indictment for Duplicity (Doc. 126), and Motion to Dismiss Count One for Lack of Venue (Doc. 129). All these motions are either fully briefed or the time to reply has lapsed. (Docs. 78, 79, 124, 125, 131-34, 36.)
On March 3, 2022, the event type and title were changed. (Doc. 120.) Prior to March 3, the docket reflected that this was a supplement to Defendant's previous motion to suppress, which is how the Court referred to it during the evidentiary hearing. After March 3, the docket reflected that this document is a motion. The Court will consider this motion alongside the original motion to suppress (Doc. 76).
Defendant is charged in Count One with transportation of child pornography, in violation of Title 18, United States Court, Section 2252(a)(1) and (b), and in Count Two with possession of child pornography, in violation of Title 18, United States Code, Section 2252A(a)(5)(B) and (b)(2). (Doc. 1.)
Defendant seeks to suppress pictures and videos discovered after Border Patrol Agents searched his phone. (Doc. 76 at 14; Doc. 120 at 10.) He also pursues dismissal of Count One on several grounds: lack of jurisdiction, duplicity, and lack of venue. (Docs. 117, 126, 129.)
Pursuant to LRCrim. 5.1, this matter was referred to Magistrate Judge D. Thomas Ferraro; however, it came before Magistrate Judge Bruce G. Macdonald for an evidentiary hearing on February 28, 2022, and a report and recommendation on these limited issues. (Doc. 142.) The Magistrate Judge recommends that the District Court, after its independent review, deny Defendant's motions.
I. FACTUAL BACKGROUND
On May 22, 2019, Defendant entered the United States near Lukeville, Arizona. (Doc. 120 at 2; Doc. 131 at 1.) On May 24, 2019, Border Patrol Agents encountered Defendant in Arizona. Id. The agents determined that Defendant was illegally in the United States and took him to the Ajo Border Patrol Station. Id.
Border Patrol Agent William Wilson asked Defendant for permission to search his cell phone; this encounter was in Spanish. (Doc. 120 at 2; Doc. 131 at 2.) Defendant verbally agreed and provided the access code for the phone, also in Spanish. Id. Defendant then signed the consent-to-search form, again in Spanish. Id.
During the search of Defendant's cell phone, Agent Wilson discovered two videos that appeared to be child pornography. (Doc. 131 at 2; see Doc. 120 at 3.) Agent Wilson ceased his search, spoke with a supervisor, and contacted an agent with Homeland Security Investigations. (Doc. 131 at 2; see Doc. 120 at 3.) Agent Wilson next advised Defendant of his rights and, with assistance of another agent, initiated an interrogation. (Doc. 120 at 3, 8.) Defendant told the agents he had been a part of a WhatsApp group that sent pornography to its members. (Doc. 78-3 at 9.) Defendant claimed he had left the group as soon as he noticed some of the pornography included children. Id. at 9, 21. He also professed multiple times that he had deleted the videos. Id. at 9, 10, 12, 13, 21.
This document was admitted during the evidentiary hearing as a part of Exhibit 5A and 5B. The Court will refer to the transcript on the docket for ease of assess of any interested party.
Defendant confirmed that he had obtained the phone prior to crossing the international border and that there had been no service or internet networks since he crossed the international border. Id. at 14, 49.
The Evidentiary Hearing
At the hearing, the Court recounted that it had a Zapoteco interpreter based on Defense Counsel's assertion that Zapoteco was Defendant's native language. (Doc. 148 at 5.) Before the hearing, Defense Counsel and the Court learned that Defendant did not speak Zapoteco, but instead he likely spoke another indigenous language, Nahuatl. Id. The Court was unable to obtain a Nahuatl interpreter, given the late discovery. Id. at 6-7. The Court questioned Defendant briefly through a Spanish interpreter. Id. at 7-8. Defendant stated he had completed middle school and his education had been carried out in Spanish. Id. The Court then obtained both Defense Counsel and Defendant's permission to proceed in Spanish. Id. at 8, 10.
This refers to Defendant's counsel at the time of the hearing, Peter Raptis. Defendant has received new counsel since the hearing. This does not alter the Court's analysis.
Border Patrol Agent Michael Hector testified via Zoom. (Doc. 140; Doc. 148 at 14.) Agent Hector was working in the Ajo Border Patrol Station on May 24, 2019. (Doc. 148 at 15, 17.) Agent Wilson asked him to witness the consent to search a cell phone. Id. at 18. Agent Hector testified that ordinarily Agent Wilson would ask the subject in Spanish if they read Spanish and, if the answer was in the affirmative, then the subject would read the Spanish consent form without Agent Wilson reading it aloud. Id. Agent Hector stated that he witnessed Defendant signing the consent form and that Defendant did not have any questions about the consent form. Id. at 19. Agent Hector is not a native Spanish speaker. Id. at 20.
Border Patrol Agent William Wilson testified next. (Doc. 140; Doc. 148 at 24.) Agent Wilson testified that he was able to communicate in Spanish but was not fluent. (Doc. 148 at 26.) He described himself as an intermediate Spanish speaker. Id. In May 2019, Agent Wilson was working at the Ajo Border Patrol Station, processing subjects. Id. at 30. He was attempting to gather information or intelligence; he would often conduct interviews or search electronics. Id. at 28-30. When searching electronics, he would look through any social media or messaging app, including WhatsApp. Id. He would usually go through the pictures and make sure to view or fast-forward through each video just in case a video had been hidden. Id. at 28, 38.
On May 24, 2019, Agent Wilson asked Defendant in Spanish if Defendant was able to read the Spanish language. Id. at 34. Defendant said he could, so Agent Wilson handed him the consent form (Ex. 3C). Id. Agent Wilson did not read the form aloud to Defendant. Id. Defendant agreed to a search with Agent Hector as a witness. Id. at 36. Defendant provided Agent Wilson with the passcode for his cell phone. Id. Agent Wilson searched the phone and found a video titled "tender teen sex," depicting a juvenile male and a juvenile female engaged in sex acts with each other. Id. at 39. Agent Wilson continued searching and discovered a second video. Id. at 40. This video showed what appeared to be an eight- or nine-year-old female, who removed her shirt and exposed her bare chest. Id. At this point, Agent Wilson stopped looking through the phone and showed the videos to another agent to confirm his impressions. Id. Agent Wilson contacted a supervising border patrol agent. Id. at 41. He then called Homeland Security Investigations. Id.
Agent Wilson testified that after this process he decided to interview Defendant. Id. at 42. Before interviewing Defendant, Agent Wilson read him his rights. Id. Defendant signed the consent form and agreed to speak without an attorney. Id. Agent Wilson and Border Patrol Agent Daniel Covarrubias interviewed Defendant. Id. at 45. Agent Covarrubias assisted Agent Wilson by translating if Agent Wilson was not clear. Id. Agent Wilson avowed that there was no indication that Defendant did not understand Spanish and that Defendant responded in an intelligent manner and within the context of the questions. Id. at 47-48.
The Court obtained Agent Covarrubias's first name from Defendant's disclosure. (Doc. 58 at 11.)
Counsel for both the Government and Defendant then provided argument and the Court took the matters under advisement. Id. at 52-74.)
II. ANALYSIS
Defendant seeks to suppress evidence in this case, asserting that the consent was not voluntary. (Doc. 76 at 1, 14; Doc. 120 at 10.) He further urges the District Court to dismiss Count One from his indictment because it lacks jurisdiction, venue, and the charge is duplicitous. (Docs. 117, 126, 129.)
A. Fourth Amendment Search
"[A] search conducted pursuant to a valid consent is constitutionally permissible." Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). The search is still bound by objective reasonableness-"what would the typical reasonable person have understood by the exchange between the officer and the suspect?" United States v. Lopez-Cruz, 730 F.3d 803, 809 (9th Cir. 2013) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). "It is the government's burden to prove that the consent was freely and voluntarily given." United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004). Whether the consent is valid is determined from the "totality of all the circumstances." Id.
Previous cases from the Ninth Circuit Court of Appeals have identified five non-exhaustive factors to consider when determining voluntariness of consent. Id. at 502. The five factors are: "(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that she had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained." Id. (quoting United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002)). It is important to note that "[n]o one factor is determinative in the equation." Id. When the defendant is a foreign national, courts should consider an extra step to ensure they understood their rights. United States v. Shi, 525 F.3d 709, 730 (9th Cir. 2008). Courts should consider:
(1) whether the defendant signed a written waiver; (2) whether he was read his rights in his native language; (3) whether he appeared to understand those rights; (4) whether he had the assistance of a translator; (5) whether his rights were explained painstakingly; and, (6) whether he had experience with the American criminal justice system.United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002) (citing United States v. Amano, 229 F.3d 801, 804-05 (9th Cir. 2000)).
Here, Defendant was raised in a small village in Guerrero, Mexico. (Doc. 148 at 56; Doc. 78-3 at 6.) Defense Counsel asserts that the village is fifteen huts with several indigenous languages. (Doc. 148 at 56.) Defendant's native language is an indigenous language, likely Nahuatl. Id. at 6. He was educated through middle school in Mexico in Spanish. Id. at 7-8. At some point, Defendant lived in the United States for eleven years. (Doc. 23.)
On May 24, 2019, Agent Wilson asked Defendant if he could read Spanish. (Doc. 148 at 34.) Both Agents Wilson and Hector were in plain clothes and were not carrying a weapon. Id. at 22, 50. Agents Wilson and Hector watched Defendant read and sign the consent to search form. Id.at 19, 36. Agent Wilson then searched Defendant's cell phone. Id. at 39. After finding alleged child pornography, Agents decided to interrogate Defendant. Id. at 42. Agent Wilson read Defendant his rights. Id. Defendant signed a waiver and spoke with Agents. Id. Agents then interrogated Defendant in Spanish. Id. at 45.
At the beginning of the interrogation, Agents asked Defendant if he agreed to talk and Defendant said "Well, because I told you I don't have the money to- to- to pay." (Doc. 78-3 at 1.) Agents then asked Defendant if he understood the rights. Id. at 2. Defendant said that the rights were "not very clear" because some of the "Spanish isn't right." Id. Agents confirmed with Defendant that he spoke Spanish, that he understood when agents spoke to him in Spanish, and that he read the rights and agreed to talk. Id. The agents then asked if there was a part of the rights that Defendant did not understand. Id. at 3. Agents explained that an attorney would be provided. Id. Defendant said that he wanted to talk because he was "not hiding anything"; demonstrated by him providing his passcode. Id. Agents again asked if Defendant wanted to speak without an attorney and understood his rights. Id. at 4. Defendant agreed that the agents did not make any threats or promises. Id. at 5. Agents then confirmed that Defendant understood the Spanish and was not under the influence of alcohol, medicine, or drugs. Id.
Defendant explained how the videos had gotten on his phone and that he had deleted them. Id. at 13. Defendant explained, after a lengthy conversation, that he gave the agents his password because he did not know there was child pornography on the phone and he knows "it's a crime." Id. at 48. Defendant also explained that there had been no service or internet networks since before he crossed the international border. Id. at 49. Agents confirmed with Defendant that he was not threatened again toward the end of the interrogation. Id. at 54. Defendant stated that "It was just the- the way- the- that [unintelligible] you were talking." Id. at 55. Defendant clarified that the agents "kept telling [him] that-[he] was getting out, but [the agents] were saying those videos are there." Id. Defendant continued that he had deleted the videos. Id. at 56. Defendant then explained that he was previously arrested and the people that arrested him had promised him a visa but never followed through. Id. at 56-57. He subsequently argued that he "like[s] to cooperate," and that he would not have given the cell phone or passcode if he had been hiding anything. Id. at 57. Then the interview concluded.
Defendant's main argument is that he could not understand his rights because they were in Spanish, which was his second language, and thus the consent was not voluntary. (Doc. 76 at 9, 10, 14; Doc. 120 2-3.) The Court disagrees.
First, Defendant has a sufficient grasp of Spanish to sufficiently understand his rights. Defendant has completed over two years of court proceedings with only Spanish interpreters. He has conversed and been represented by several attorneys in only Spanish. He responds appropriately within the context during the court proceedings. Defendant even requested to represent himself in Spanish. (Docs. 19, 23, 27, 31.) Additionally, Defendant criticized the Spanish in the consent form. (Doc. 78-3 at 2.) Agents were not required to provide Defendant his rights in his native language, which is still uncertain. See Amano, 229 F.3d at 804-05 (approving of consent when defendant's native language was Japanese, and he had limited skills in English and all the rights were given in English). Agents took pains to clarify his rights when Defendant had questions or appeared to misunderstand during the interrogation.
Further, while Defendant had not received Miranda warnings and was in custody before the consent to search was given, the officers asking were in plain clothes and did not have weapons. And the consent form said he had a right to refuse to consent and agents did not threaten to get a warrant. Defendant provided the passcode without threats or promises. The totality of the circumstances show that Defendant consented voluntarily to the search of the phone.
Defendant argues that there was no need to warrantlessly search his phone. (Doc. 76 at 13.) The Government asserts that the agents were not looking for evidence of a criminal violation (Doc. 78 at 6.) Neither of these arguments change that Defendant voluntarily consented to the search.
Defendant contends that the pictures and videos were outside the scope of consent because there was no articulable reason for agents to access them and they had "no knowledge at the time, that Coyotes convey details of human trafficking through encrypted pictures or videos." (Doc. 76 at 13-14.) Agent Wilson explained why videos and photographs are often searched to discover information about smuggling or trafficking. (Doc. 148 at 28.) A reasonable person would have expected the videos and photographs to be searched and thus they were within the scope of consent. See Lopez-Cruz, 730 F.3d at 809.
As such, the Court finds that Defendant voluntarily consented to the search and the scope of the search was reasonable. Thus, the Court recommends that the motions to suppress (Docs. 76, 120) be denied.
B. Jurisdiction
Federal courts are courts limited jurisdiction. United States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008). The burden of establishing jurisdiction is on the party invoking it. Id. "The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." 18 U.S.C. § 3231.
Defendant asserts that the Government is attempting to apply the criminal laws extraterritorially by prosecuting him for actions taken before entering the United States. (Doc. 117 at 3-4.) He also contends that the Government has removed a key statutory phrase, "using any means or facility of" interstate or foreign commerce, from the Indictment. Id. at 2. The Government argues Defendant transported the child pornography on his phone into the United States as he crossed the international border. (Doc. 124 at 5.) Further, the Government reasons it could establish jurisdiction "if a defendant uses any means or facility of interstate or foreign commerce or if the transportation was in or affecting interstate or foreign commerce," as stated in the statute. Id.
Here, Count One of the Indictment states:
Between or about May 22, 2019 to on or about May 24, 2019, within the District of Arizona, the defendant, SILVESTRE MERINO-LOPEZ, did knowingly transport in interstate or foreign commerce, child pornography, that is, visual depictions, the production of which involved the use of a minor engaging in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256(2), and which depicted pre-pubescent minors, and which depicted such conduct, which had been shipped and transported in interstate or foreign commerce by means of computer, or otherwise, including, but not limited to:
"VID-20181002-WA0005"
"VID-20181029-WA0002"
All in violation of Title 18, United States Code, Sections 2252(a)(1) and (b).(Doc. 1.) Section 2252(a)(1), which Count One alleged Defendant violated, reads as follows:
(a) Any person who--
(1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if--
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
The current model instruction for transportation of child pornography reads as follows:
The defendant is charged in [Count of] the indictment with [shipping] [transporting] child pornography in violation of Section 2252(a)(1) of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that the defendant knowingly [transported] [shipped] a visual depiction [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mail;
Second, that the production of such visual depiction involved the use of a minor engaging in sexually explicit conduct;
Third, that such visual depiction was of a minor engaged in sexually explicit conduct;
Fourth, that the defendant knew that such visual depiction was of sexually explicit conduct; and
Fifth, the defendant knew that at least one of the persons engaged in sexually explicit conduct in such visual depiction was a minor.
Ninth Circuit Model Criminal Jury Instruction 20.22 (2021), https://www.ce9.uscourts.gov/jury-instructions/node/1118.
First, Defendant is charged with actions that took place within the United States, which this court has jurisdiction. This is further explored below in the duplicity and venue sections.
Second, the Court reads "[in or affecting interstate commerce]" as an alternative to "[using any means or facility of interstate commerce]" in both the statute and the model jury instructions. Thus, the Government did not need to allege that Defendant used any means of interstate commerce, it could satisfy the statute by alleging he transported the videos in or affecting interstate or foreign commerce. See § 2252(a)(1); Model Jury Instruction 20.22. The Indictment includes this language. (Doc. 1.)
Third when Congress uses the phrase "affecting interstate commerce," as it did in § 2252(a), it generally intends to regulate to the outer limits of its authority under the Commerce Clause. Cf. United States v. Walls, 784 F.3d 543, 546 (9th Cir. 2015) (considering "affecting interstate commerce" in 18 U.S.C. § 1591(a)(1), (b)). However, limiting the allegations to in interstate or foreign commerce, as alleged in the Indictment, the proposed facts that Defendant crossed the international border with child pornography are sufficient to show transportation in interstate or foreign commerce. See United States v. Wright, 625 F.3d 583, 595 (9th Cir. 2010), superseded by statute, 18 U.S.C. § 2252A(a)(1), as recognized in United States v. Brown, 785 F.3d 1337, 1351 (9th Cir. 2015).
The Court recommends denying Defendant's motion (Doc. 117) based on the foregoing.
C. Duplicity
An indictment should charge only one violation per count and is duplicitous when two or more distinct and separate offenses are joined into a single count. United States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013). "A danger of duplicity is that a jury could find a defendant guilty on a count without reaching a unanimous verdict on the commission of an offense." United States v. Renteria, 557 F.3d 1003, 1008 (9th Cir. 2009). It also "compromises a defendant's Sixth Amendment right to know the charges against him, as well as his Fifth Amendment protection against double jeopardy." United States v. King, 200 F.3d 1207, 1212 (9th Cir. 1999). A count is not duplicitous if it merely describes multiple ways of committing the same offense. United States v. Murphy, 824 F.3d 1197, 1206 (9th Cir. 2016).
Here, Defendant argues that Count One of the Indictment should be dismissed because it "contains two separate and distinct alleged offenses that occurred on different dates" and is therefore duplicitous. (Doc. 126 at 1.) The Court disagrees.
The Indictment alleges that, between or about May 22, 2019, to about May 24, 2019, Defendant transported in the interstate or foreign commerce child pornography that had been shipped and transported in interstate or foreign commerce by means of computer. (Doc. 1.) Count One lists two videos that Defendant allegedly transported. Id.
Defendant argues that the discovery asserts that these videos were sent to other individuals on two separate dates and times in October 2018. (Doc. 126 at 2.) Additionally, Defendant contends that the videos are of separate individuals, places, and times. Id. Thus, Defendant proclaims that Count One charges two offenses of transportation from different dates and times of two separate videos. (Doc. 126 at 3.) The Government asserts that Defendant "appears to misunderstand the offense he is charged with." (Doc. 132 at 3.) The Court agrees with the Government.
Contrary to Defendant's assertions, he is not charged with distribution of the videos on two separate dates in October 2018; instead, he is charged with transportation of the images contained on his cell phone when he entered and traveled within the United States (Doc. 1; Doc. 126 at 3.) Hence, Count One describes one offense. As such, Defendant's motion to dismiss Count One because of duplicity (Doc. 126) should be denied.
D. Venue
Defendant moves to dismiss Count One of the Indictment because the offense was completed prior to his entry into the United States. (Doc. 129.) The Court disagrees.
"Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed." Fed. R. Crim. P. 18; see United States v. Lukashov, 694 F.3d 1107, 1119 (9th Cir. 2012). The Government is responsible for proving venue. United States v. Moran-Garcia, 966 F.3d 966, 971 (9th Cir. 2020).
Here, Defendant is charged with transporting child pornography from Mexico into the United States when he allegedly entered the United States and traveled within its borders with child pornography on his cell phone. (Doc. 1; Doc. 131 at 5.) Again, Defendant misunderstands the charges against him. The Government's theory of the offense is that it was committed when he walked into the United States and traveled within the United States, more specifically the District of Arizona. (Doc. 131 at 5.) Thus, venue is properly asserted. As such, Defendant's motion to dismiss Count One for lack of venue (Doc. 129) should be denied.
Defendant also argues that Model Jury Instruction 8.184 does not state "using" in the alternative. (Doc. 134 at 7.) The entire instruction is quoted above, but the relevant paragraph is: "First, that the defendant knowingly [transported] [shipped] a visual depiction [using any means or facility of interstate commerce] [in or affecting interstate commerce] by any means including by computer or mail." Ninth Circuit Model Criminal Jury Instruction 20.22 (2021), https://www.ce9.uscourts.gov/jury-instructions/node/1118.
As noted above, the Court reads "[in or affecting interstate commerce]" as an alternative to "[using any means or facility of interstate commerce]." Thus, this argument as it applies here should be denied.
E. Double Jeopardy
In his reply to his motion to dismiss Count One for lack of venue, Defendant claims that Count One should be dismissed pursuant to the Double Jeopardy Clause. (Doc. 134 at 3.) The Government briefly responded during the hearing.
"No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause "protects a defendant against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Patterson, 381 F.3d 859, 862-63 (9th Cir. 2004). "Same offense" is often measured based on statutory elements. Blockburger v. United States, 284 U.S. 299, 304 (1932). "A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)). The Supreme Court of the United States has "refused to adopt the 'single transaction' view of the Double Jeopardy Clause," in which all charges arising from a single act or transaction must be tried in a single proceeding. Garrett v. United States, 471 U.S. 773, 790 (1985); see Currier v. Virginia, 138 S.Ct. 2144, 2154 (2018) ("And this Court has emphatically refused to import into criminal double jeopardy law the civil law's more generous 'same transaction' or same criminal 'episode' test."). The Court has raised an exception, which "forbids a second trial only if to secure a conviction the prosecution must prevail on an issue the jury necessarily resolved in the defendant's favor in the first trial." Currier, 138 S.Ct. at 2150.
Here, on May 28, 2019, Defendant pled guilty to violating title 8, United States Code, section 1325(a)(1) Illegal Entry on May 22, 2019. (Doc. 134-1 at 2.) On the same day, he was sentenced to a term of imprisonment for 105 days. Id. On August 14, 2019, the Grand Jury returned an indictment charging Defendant with transportation of child pornography (Count One) and possession of child pornography (Count Two). (Doc. 1.) The Indictment alleges that Count One occurred on or about May 22, 2019, to May 24, 2019. Id. at 1.
Defendant argues Count One attempts to punish him a second time for crossing the international border into the United States. (Doc. 134 at 3-4.) Defendant asserts that had the Government prosecuted Count One with the illegal entry "there would be no problem" because the same conduct can violate two separate statutes with different elements. (Doc. 134 at 4.)
First, jeopardy has attached for the illegal crossing. See Patterson, 381 F.3d at 864 ("Jeopardy ordinarily attaches when the court accepts a plea of guilty."). Second, as acknowledged by Defendant, the illegal entry (§ 1325) and transportation of child pornography (§ 2252(a)(1)) both have separate elements. Section 1325(a)(1) requires proof that the individual entered at a place "other than as designated by immigration officers," an element not required by transportation of child pornography. Compare § 1325(a)(1) with § 2252(a)(1). Additionally, transportation of child pornography requires proof that the person transported visual depictions of a minor engaging in sexually explicit conduct, elements not required by illegal entry. Compare § 2252(a)(1) with §§ 1325(a)(1). Defendant attempts to use a transaction test, which is not permitted. See Garrett, 471 U.S. at 790; see also Currier, 138 S.Ct. at 2154. Not even the exception aids Defendant because no jury has found in favor of him on an issue necessary to secure a conviction for transportation of child pornography. As such, the Court recommends denying Defendant's argument.
F. Privilege Against Self-Incrimination
In his reply to his motion to dismiss Count One for lack of venue, Defendant argues that Count One should be dismissed pursuant to his privilege against self-incrimination. (Doc. 134 at 5.) The Government briefly responded during the hearing.
The Fifth Amendment to the United States Constitution provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]" A valid plea agreement waives the privilege against compulsory self-incrimination. Class v. United States, 138 S.Ct. 798, 805 (2018). And the appropriate remedy would be exclusion of the statements. See Miranda v. Arizona, 384 U.S. 436, 462 (1966).
As discussed in the Double Jeopardy section, Defendant pled guilty to illegally entering the United States in May 2019. During the plea hearing, the judge told Defendant "You have a right to remain silent but if you plead guilty today, you give up that right." United States v. Merino-Lopez, 19-29001M, Doc. 4 at 5 (Feb 1, 2022).
The appropriate remedy would be exclusion of statements, plea, or conviction, if there is a violation. The Government has not attempted to admit such evidence, so no remedy is available, and Defendant has not asked for suppression of the plea. Because the remedy is inappropriate and the statements or guilty plea have not been offered, the Court will make no further findings as to this argument. As such, this argument, as made here, should be denied.
III. CONCLUSION
The Court finds that Defendant voluntarily consented to the search of his cell phone. The Court further finds that the District Court has jurisdiction over this matter and that this District is the correct venue for this matter. Additionally, the Court finds that the charges are not duplicitous.
IV. RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Judge DENY Defendant's motions (Docs. 76, 117, 120, 126, 129.)
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rules of Criminal Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. No. reply shall be filed unless leave is granted from the District Court. Failure to file timely objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.