The Army Lawyer | Issue 6 2020View PDF

null A JA on the Rio Grande

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A JA on the Rio Grande

 

(Credit: spiritofamerica – stock.adobe.com)

Del Rio is not the edge of the Earth, but you can see it from there.1

In the summer of 2018, the U.S. Attorney General’s office requested the Armed Services provide twenty-one active duty and reserve judge advocates (JAs) to assist in handling criminal illegal immigration cases. The overburdened system was exacerbated by the Assistant U.S. Attorney (AUSA) staffing shortage along the United States’ southern border.2 I volunteered and was assigned to the Western District of Texas, Del Rio Division.3 From a professional standpoint, working with the AUSA office in Del Rio, Texas, was rewarding. It introduced me to an area of law in which I had no background, and it allowed me to broaden my perspective of what justice means—and what it means to be in the Army.

This article provides an overview of this broadening assignment and lists the benefits a JA can enjoy by serving as a Special Assistant U.S. Attorney (SAUSA) on the U.S. southern border. The section entitled Area of Operations and Scope of Duties describes my time in Del Rio, Texas, and my job as a Special Assistant United States Attorney for the Western District of Texas. Next, the section, Immigration, discusses the basics of immigration and criminal law—including terminology, key players, and process. The final section, Application, consists of a series of examples illustrating the intersection of the administrative and criminal process. Last, the sections Lessons Learned and Conclusion offer thoughts and observations from a JA perspective.

Area of Operations and Scope of Duties

Area of Operations

Del Rio, Texas, is a small city along the United States-Mexico border. It sits on the Rio Grande River at the intersection of two major highways, 277 and 90.4 A map5 of the area shows that the city sits directly across the Rio Grande River from Ciudad Acuna, Coahuila, Mexico.

Del Rio’s sparse population, network of rural roads, and surrounding highways make this area—and the U.S. district court jurisdiction in that area6—an ideal location for drug smuggling, human trafficking, illegal entry, and other border crimes. For instance, during the fiscal year of 2017, the Western District of Texas had 5,570 criminal filings.7 In 2018, their criminal filings for immigration cases grew by twenty-one percent.8 In 2017, the Del Rio Division alone had 1,403 criminal filings.9

I can’t say that I was surprised by this volume of cases. Since the entire purpose of this assignment was to deal with the immigration crisis on the U.S. southern border, logically, the Department of Justice (DoJ) would assign me to a “border town.” But, while I had some experience as a SAUSA at a magistrate court at Aberdeen Proving Ground in Maryland, my scope of duties in Del Rio was far larger and different in many ways.

Scope of Duties

As a result of severe staffing shortages—particularly along the Rio Grande River, and an increased emphasis on border security and immigration control, the DoJ and the Department of Defense (DoD) signed a memorandum of understanding (MOU), which stated the DoD would provide twenty-one active and reserve JAs to serve on the border for 179 days. They would assist in prosecuting reactive border immigration cases, with a focus on misdemeanor improper entry and felony illegal re-entry cases. This included drafting pleadings, assisting with plea negotiations, and making court appearances. It also included drafting prosecution memorandums and coordinating with law enforcement agencies to prepare cases for grand jury indictment. Representing the United States at initial appearances, preliminary and detention hearings, guilty pleas, and bond revocation hearings was also part of the duty description. I was fortunate enough to be one of the active duty Army JAs selected to assist the DoJ.

The border regions were busy during my six months assigned there. I represented the United States at approximately 450 felony initial appearances, 45 preliminary and/or detention hearings, over 300 guilty pleas, and over 100 sentencing proceedings; I prepared over 100 indictments for grand jury; and I conducted over 25 guilty pleas. In total, I served as lead attorney in over 180 criminal matters.

Immigration

Law Basics

Any JA assigned to the border should possess a general understanding of U.S. immigration law. Below is a brief overview of some key provisions. Later, the various administrative and criminal laws are applied to fact-based scenarios, so this overview serves as a brief refresher of general immigration law topics.

Immigration law is enforced through the Immigration and Nationality Act (INA), codified as 8 U.S.C. §§ 1101-1537. The INA is administrative (i.e., it is not a criminal code), but it does have criminal provisions.10 I focused on the criminal provisions and had little interaction with Immigration and Customs Enforcement (ICE) agents, immigration judges, or immigration attorneys. The criminal process is distinct and separate from the administrative aspect. However, the administrative immigration procedures can have a critical effect on the criminal process, and vice versa. As a result, it is important to understand the administrative side because it is always in the background of the criminal process.

Key Terms

To effectively practice immigration law, an attorney should be familiar with the following key terms and phrases.

  • Alien: Any person not a citizen or national of the United States.11
  • Immigration officers: Any employee or class of employees of the Service or of the United States designated by the Attorney General, individually or by regulation.12 All Border Patrol (BP) agents are considered immigration officers.13
  • Expedited Removal Proceedings (ERP): An alien is subject to expedited removal if a BP agent determines the alien is inadmissible within the context of 8 U.S.C. § 1182(a)(6).14 An alien who is present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General is inadmissible.15
  • Credible Fear of Persecution: A well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. A person who meets this definition is now a refugee.16
  • 8 U.S.C. § 1325 (Improper Entry by Alien): This criminal violation is committed when an alien enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or eludes examination or inspection by immigration officers, or attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact.17
  • 8 U.S.C. § 1326 (Reentry of Removed Aliens): This criminal violation is committed when an alien who has previously been denied admission, excluded, deported, or removed enters, attempts to enter, or is at any time found in the United States. Penalty typically does not exceed two years unless some other conditions are met, such as commission of an aggravated felony subsequent to [their] previous removal.18

Lawful Admission into the United States

There are a variety of means to enter the United States legally; however, there are conditions. 8 U.S.C. § 1181(a) states, “[N]o immigrant shall be admitted into the United States unless at the time of the application for admission he (1) has a valid unexpired immigrant visa . . . and (2) presents a valid unexpired passport or other suitable travel document.” The first condition is most likely obvious: you need to have some form of official documentation in order to enter the United States as an immigrant. 8 U.S.C. § 1225(3) states, “All aliens, including alien crewmen, who are applicants for admission or otherwise seeking admission or readmission to or transit through the United States shall be inspected by immigration officers.” In short, to enter the United States, one must have the appropriate paperwork and be inspected by an immigration officer at a designated port of entry. If those two things are not in place, it could lead to an expedited removal proceeding (ERP).

Expedited Removal Proceedings

Most undocumented immigrants are removed through an ERP. An ERP precludes any further hearing or review if an immigration inspecting officer determines the alien meets the requirements of 8 U.S.C. § 1182(a)(6)(A)(i).19 The authority to sign the expedited removal orders is typically withheld to supervisors and above in the Border Patrol.20 However, there are situations when further review is required, such as when the alien makes a request for asylum or articulates a credible fear of persecution.21 One of the most important limitations on the use of ERPs is their restriction to those aliens apprehended within 100 (air) miles of the border.22 If a law enforcement officer (LEO) apprehends an alien outside of this 100-mile area, or the alien can show they have lived for two years continuously in the United States, the alien is not subject to an ERP.23

Notably, ERPs are also universally used after an alien has been convicted of a violation of 8 U.S.C. §§ 1325 and 1326 due to the limited appellate rights.24 If an alien re-enters the United States illegally after having been removed or having departed voluntarily under an order of removal, the prior order of removal is reinstated and “the alien may not apply for any relief and shall be removed at any time after the re-entry.”25 In effect, since releasing an alien would subject them to immediate deportation—and therefore their appearance cannot be reasonably assured (as required by 18 U.S.C. § 3142(b)), the AUSA must request any alien charged with a crime be held in DoJ confinement facilities.26

Assuming an alien is convicted for a violation of 8 U.S.C. § 1326, after serving their time in a DoJ confinement facility, they will be released to ICE, which will begin the deportation process under the previous deportation order, which remains in effect.27 The judge who sentenced the defendant for their criminal conduct can also order the alien removed at the completion of their sentence.28

In summary, the effect of a previous deportation order ensures no undocumented immigrant who has previously been removed subject to a deportation order can be released on bond or their own recognizance, as they will, practically speaking, be a risk of failure to appear. If they are released, on bond or otherwise, ICE agents could deport them since they still lack legal status to be in the United States. The practical implications of this are discussed later in this article through the analysis of fact patterns. With an understanding of how the administrative process works, we can now analyze the criminal provisions of the INA.

Criminal Provisions

Title 8 of the INA is one of the primary titles dealing with criminal violations of the INA.29 Some criminal acts apply to both immigrants and U.S. citizens. One of the most important things to remember is that once an LEO files a criminal complaint on an alien, the alien is entitled to all the rights and privileges of a U.S. citizen.30 This means they are entitled to an attorney, at no expense to the defendant (if they cannot afford one), and all the other rights to which a U.S. citizen is entitled in the judicial process.31 I can vouch that the defense attorneys that I met in Del Rio were intelligent, compassionate, and diligent in their work; they zealously represented their clients, even in the face of a massive caseload.

Application

For a JA to better understand how the law works on the border, specifically the intersection of the administrative and criminal sections of the INA, three examples of what a JA serving on the border can expect to experience are provided. These are in no particular order, but were scenarios I encountered frequently.

Example 1—8 U.S.C. § 1326: Re-Entry of Removed Aliens32

Facts

Defendant A, a citizen of Honduras, paid a smuggler in Piedras Negras, Mexico, $1,000 to be smuggled into the United States.33 Defendant A had previously lived in the United States for three years before being apprehended, and an immigration judge ordered his deportation in October 2012. In September 2018, Defendant A was met by the smuggler at the bus station (la parada de autobus) and guided down to the Rio Grande River across from Eagle Pass, Texas. This portion of the river is only knee- and ankle-deep during the summer months. After crossing the river, Defendant A crossed an easement along the sides of roads, rivers, and other features regularly patrolled by BP Agents—colloquially known as a “drag.” Border patrol agents working the drag spotted the footprints of Defendant A and, after tracking him for approximately thirty minutes, discovered him hiding in thick brush. After identifying themselves to Defendant A, BP agents questioned him.34 Defendant A freely admitted to not having immigration documents allowing him to be in the United States legally and to having just crossed the Rio Grande River, and he expressed fear of returning to his home country due to gangs. Based on his statements and his wet and muddy clothing, BP agents arrested Defendant A. A background check revealed that Defendant A was previously deported for a violation of 18 U.S.C. § 1325. This is Defendant A’s second illegal re-entry offense.

Initial Appearance

The government must hold the initial appearance without unnecessary delay, which typically means within twenty-four hours.35

Preliminary and Detention Hearing

In accordance with 18 U.S.C. § 3142(f), the preliminary and detention hearing must be held within five days (not including Saturdays, Sundays, or legal holidays). These hearings are waived in the vast majority of cases. This is due to two factors: (1) the clear evidence of illegal entry,36 which would make a preliminary hearing pointless; and (2) the ICE detainer which is immediately put in place upon confirmation of their illegal status, which would make a detention hearing fruitless.37 Assuming they do not waive the preliminary or detention hearing, the prosecution must be prepared to put on evidence. This means a witness, usually a BP agent, must be available to testify.

Due to the large number of arrests and wide geographic area, it is not feasible to bring in BP agents from every arrest to identify the defendant in court and testify to the circumstances of their arrest. Usually, it is an agent from the BP’s prosecution office. This is a BP agent detailed to testify in these hearings. Since the rules of evidence do not apply, this is permissible under federal law.38 This agent will gather and review the apprehension report and, if possible, speak to the agent who actually made the arrest. They will also review any pictures of the illegal alien obtained at the time of the arrest; then, they will go to the jail and compare it to the defendant. They can then visually identify the defendant in court, as well as testify whether an ICE detainer is in place. If ICE has a detainer, the prosecutor should argue the defendant is a risk of failure to appear.39

Trial

While trials do happen, they are not the norm. Most undocumented immigrants waive trial. In the event they do not plead guilty, these cases are relatively easy to prove. Witnesses are generally the arresting BP agents and a custodian of records. The BP agents would, obviously, describe how the defendant was apprehended and any admissions made by the defendant.40 The custodian of records would then testify about the absence of a record of a regularly conducted activity, such as the application for citizenship, or about a record of a previous deportation.41

Sentencing

Sentencing is straightforward. The probation office will apply the Federal Sentencing Guidelines to the defendant and their crime, and then they provide their recommendations to the judge. The biggest difficulty is in determining the previous criminal history of the defendant and ensuring the sentencing guidelines are accurate.

Example 2—8 U.S.C. § 1324: Bringing in and Harboring Certain Aliens42

This offense is self-explanatory in large part, but there are some other points that are important to remember. One of the main provisions is the inclusion of conspiracy to bring in or harbor undocumented immigrants.43 If convicted of conspiracy to bring in or harbor certain aliens, the defendant(s) could receive a maximum of ten years’ confinement.44 Also, seizure and forfeiture provisions apply. A large number of vehicles used in alien smuggling endeavors are seized every year.45 Even more importantly, the penalty increases to life in prison if any person is killed, suffers serious bodily injury, or is placed in jeopardy of life during the smuggling operation.46

Facts

Five Mexican nationals meet with “Cuco” in Piedras Negras, Mexico, to be smuggled into the United States.47 They are met by a foot guide and are guided across the Rio Grande River. After traveling a day through the brush, one of the undocumented immigrants is given a phone number. They are told to wait beside a road and to call the number to coordinate the pickup. Border patrol agents in an overlook position notice a vehicle, a cab, and a half-Toyota pickup. The vehicle drives down a narrow Farm to Market road,48 flashes its headlights twice, and then pulls over. This is an area notorious for human and drug trafficking, and nearby agents are dispatched to trail the vehicle and conduct a traffic stop. As the agents who are on overlook watch, the vehicle turns around and heads north. Then, the responding agents approach the suspected smuggler; the smuggler pulls over, at which time all five undocumented immigrants “bail out” into the brush. After a brief foot chase, all five undocumented immigrants are apprehended. After BP agents advise the undocumented immigrants of their Miranda49 rights in a language they can understand, all knowingly and voluntarily waive their rights and identify the driver as the one who picked them up on the road. The vehicle has a decal of “Jesus Malverde,” on the bumper.50

Initial Appearance

Anecdotally, it was my experience that a large proportion of human traffickers are U.S. citizens. Most of these individuals have significant criminal histories or have significant ties to Mexico; either of which would make them a risk of failure to appear. To make the argument for detention until the preliminary and detention hearing, I relied on two things: (1) the nature of the offense; and (2) the Pre-Trial Services Report (PTSR). The first step is always to consider the nature of the offense.

When considering the nature of the offense, the key things to look for are the danger to the community and the risk of flight.51 Transporting undocumented immigrants with no seatbelts is probably not sufficient; transporting five undocumented immigrants stacked on top of each other in the back seat would present a risk of danger to the community. Likewise, engaging in a high-speed pursuit presents a danger to the community or, alternatively, a risk of flight and failure to appear. A large portion of this is also dependent on the magistrate who is making the decision; some magistrates have zero tolerance for those who risk the lives of undocumented immigrants, while others might have a more relaxed standard on the definition of risk.52 After considering the nature of the offense, a JA should next turn their attention to a review of the PTSR and Pre-Trial Services (PTS) recommendation.

The PTS office will interview the defendant prior to the detention hearing and will seek to determine the defendant’s eligibility for a bond. They make this determination based on their criminal history, familial status, employment, financial status, and—in Del Rio—their connections with Mexico. Personnel at PTS will make a recommendation as to whether the magistrate should consider releasing the defendant on bond. Typically, the AUSA does not oppose a recommendation by PTS for bond, though occasionally it does happen. In the event the magistrate determines the defendant should be released on bond, PTS is the organization that supervises their release, not the probation office.

Preliminary and Detention Hearings

The vast majority of defendants, in my experience, waive the preliminary and detention hearings. This is for various reasons, but typically because the evidence is overwhelming. However, in the event the defendant does decide to contest the preliminary and detention hearing, the JA would proceed as in the § 1326 case mentioned above; and, additionally, they would offer the PTSR for the judge’s consideration.

A preliminary hearing would proceed generally the same as an offense under 8 U.S.C. § 1326. However, the LEO may be Homeland Security Investigations (HSI). If HSI is involved, they do not have a dedicated agent stationed in the AUSA office, and the agent who actually investigated the case will be present to testify.

Detention hearings are different. Under 18 U.S.C. § 3142, the government must release a defendant unless the judicial officer determines that such release will neither reasonably assure the appearance of the person nor endanger the safety of the community.53 In this case, I argued the defendant had close ties with Mexico, they had no incentive to return to the United States, and there was a risk of failure to appear. Alternatively, I argued that they were transporting more passengers than the vehicle designer intended, and this created an unreasonable risk to the community.

Trial

Trials for violations of 8 U.S.C. § 1324 do occur, and they present a unique set of problems. The number one issue is the retention of one or more of the undocumented immigrants as a material witness. Under Western District of Texas policies, if they are not otherwise disqualified, a defendant may get one downward departure on their sentencing guidelines; but only if they agree to waive the deposition of the material witness and stipulate to their testimony.54 This means any stipulation of fact as to what the material witness might say must be airtight and address all the elements of the offense. Attention to detail is paramount. If the defendant does not agree to waive the deposition, the JA must be prepared to coordinate and conduct this deposition. For those who have never conducted a deposition in a human smuggling case, they can be difficult, as many material witnesses are reluctant to testify against undocumented immigrant transporters for fear of retaliation.55 These types of trials generally proceed with the arresting officers as well as the custodian of records to identify the status of the undocumented immigrants.

Sentencing

This would proceed in a similar fashion to Example 1, but with the added information of the attempted flight and the danger presented to the undocumented immigrants.

Example 3—19 U.S.C. § 1459: Reporting Requirements for Individuals56

This law applies to all individuals, including U.S. citizens. It mandates individuals only enter through a designated border crossing point, and they must immediately report the arrival and present themselves and all articles for inspection. This carries a civil and criminal penalty. The criminal penalty can be up to one year in jail.

Facts

Defendant C is a U.S. citizen who HSI believes is a foot guide for alien smuggling. However, HSI has no actionable intelligence. Border patrol agents apprehend Defendant C as he walks through the brush near the Rio Grande River. His clothes are wet and muddy, indicative of someone who has just crossed the Rio Grande River. He has two pre-paid phones on his person. When questioned by BP agents, Defendant C admits to having crossed the Rio Grande River at a place other than a designated point of entry.57

Initial Appearance

Since this individual is a U.S. citizen, and there are no facts presented that would indicate he is a danger to the community, it is likely that—absent a significant criminal history—the magistrate would grant a bond.

Preliminary and Detention Hearing

Typically, this would just consist of the arresting LEO testifying.

Trial

Here, the JA would have to present evidence from the nearest port of entry proving the defendant did not cross at the port of entry, as well as present testimony of the arresting officer.

Sentencing

This would proceed like Example 1.

How Things Work—A Typical Day

To put all the background information and examples together, it is helpful to understand a daily battle rhythm for this JA assignment. My arrival in Del Rio and my nesting with the AUSA office was seamless. Below is an outline of a typical duty day during my time in Del Rio.

I typically arrived at the office between 0730 and 0800. As soon as I arrived, if I had not checked the day before, I checked the AUSA shared calendar to determine if I had court—as this status can sometimes change overnight. Once I determined I had court, I checked the judge’s calendar. On the judge’s calendar, I reviewed which LEO filed the complaint. If BP filed the complaint, it was often—but not always—an illegal re-entry case (i.e., a violation of 8 U.S.C. § 1325 or 8 U.S.C. § 1326). If it involved HSI, the Drug Enforcement Agency, the Federal Bureau of Investigation (FBI) or others, I would know it required further research and would call the relevant agency to gather more information and prepare for any hearing. Since the judges typically post what cases are on the docket the day before, the legal assistant would call the agencies the day before to ensure a representative who could testify about the case was present. It is the agencies’ responsibility to check the docket; but, when there is no witness for the government present, the JA—as the representative of the government—will be the person who is left holding the bag.58

Anecdotally, the majority of cases coming from BP are either violations of 18 U.S.C. § 1326 or 18 U.S.C. §1324. Cases coming from HSI and the FBI are common and can involve a variety of cases, such as bulk money, human, and drug smuggling.

Reviewing the complaints clues the attorney in to a variety of potential issues. The main issue is whether the defendant is a U.S. citizen. As I mentioned above, for any undocumented immigrant who has previously been deported, ICE puts a detainer in place. In most cases that I reviewed, there had already been a final order of removal placed on the alien and, as a result, the defendant was subject to expedited removal.

Almost every other day the magistrates hear felony initial appearances, often in groups as large as fifteen or more.59 These initial appearances, by law, take a significant amount of time.60 Once complete, the prosecutor must then address the court. Typically, I requested a three-day delay to conduct the detention hearing and preliminary hearing on the same day.61 This would allow PTS time to conduct interviews and investigate the defendants’ criminal history. Besides initial hearings, there could be preliminary or detention hearings.

The burden of proof for the government at the preliminary hearing is probable cause.62 The defendant has the right to call witnesses, cross-examine prosecution witnesses, and present argument. I made every effort to meet with law enforcement prior to the hearing to familiarize myself with any nuances of the case and to prepare the agent to testify. Some of the nuances could be whether there was the risk of death or serious bodily harm to any undocumented immigrants or details on how the undocumented immigrant attempted to abscond into the brush. The hearings could be quite contentious. Even though the rules of evidence generally do not apply, occasionally defense counsel attempted to turn the hearing into a “fishing expedition” or a suppression hearing.63 In addition to preliminary hearings, I also represented the government at guilty pleas.

Representing the government at guilty pleas takes a significant amount of time and preparation. It was imperative I checked and doubled-checked the stipulation of fact for accuracy and completeness. Furthermore, during the actual plea, I would ensure, for the record, the defendant was pleading guilty freely and voluntarily. On days where I represented the government at guilty pleas, the number of defendants was between thirty and forty at a time; and, on one occasion, I represented the government at fifty-two illegal re-entry guilty pleas.

Preparing Cases for Indictment

Comparing the military system of preparing charges for court-martial and preparing charges in the federal system is like comparing a mule and a goat; they both have four legs and they both eat everything, but they are still different animals. I am being facetious, but you get the idea: they are dissimilar in the pretrial stages.

The vast majority of cases in Del Rio, especially the ones I worked on, were reactive immigration offenses. These cases generally follow the fact patterns outlined above. Once an immigration offense is committed, the responding LEO will call the on-duty AUSA. This AUSA will ask the LEO a variety of questions to determine whether there is an offense, what it should be charged as, and what evidence the prosecutor needs to secure a guilty verdict. Until final sentencing of the defendant, the LEO remains closely engaged with the AUSA office; and, if the prosecutor needs additional interviews or witnesses, the LEO responds promptly. After the LEO files the complaint with the court, the court provides a copy to the AUSA office. Once at the AUSA office, the legal assistants will create a draft indictment (with charges matching the complaint or modifying it) and a draft prosecution memorandum. Then, they will provide initial discovery to the SAUSA or AUSA for their review.

Reviewing these draft indictments is a mirror image of preparing a case for preferral of charges, and JAs should conduct themselves accordingly. The most critical aspect is determining sufficiency of evidence. This typically consists of reviewing previous deportation orders, criminal history, details of the arrest, and previous smuggling operations, among other details. After determining whether the evidence supports the charged offense, the prosecutor also calculates the potential sentence based on the offense, criminal history, and role of the defendant in the offense.64 Once this is complete, the JA should submit the indictment to their supervisor for review. After reviewing, the supervisor and responsible LEO will present the case to the grand jury for indictment.

An Article 32 preliminary hearing is more analogous to the preliminary hearings I described previously in this article.65 In both, the JA may present witnesses and evidence; but the rules of evidence do not apply, and there is limited discovery. Another similarity is that the finding of no probable cause by either a preliminary hearing officer, or the magistrate, is not necessarily the end of the case. In the military, charges may still be referred to trial by court-martial and—in the civilian federal context—a grand jury may still indict even if the magistrate does not find probable cause. The grand jury will never see a magistrate’s opinion of whether or not there is probable cause; whereas a General Court-Martial Convening Authority will see the report of the Article 32 preliminary hearing officer.66 It is important to note that, if a grand jury finds no probable cause, the JA cannot indict until they do. insert As a JA is involved in many more grand jury and sentencing hearings than trials, the article next discusses JA involvement in sentencing hearings.

Sentencing Hearings

Any JA who has served as a trial counsel knows sentencing hearings can, at times, be more stressful than an actual trial. The need to secure witnesses, construct an argument for an appropriate sentence, secure and be ready to present evidence, as well as preparing the courtroom, the bailiff, etc., can be a headache. The civilian federal system is another matter entirely.

The biggest difference is the reliance, by all parties, on the probation office and the report they prepare called the pre-sentence report.67 First, the probation office will interview the defendant (who has their counsel with them) and seek to confirm any information they give. Most of this information concerns their familial connections; connections to the United States; and their financial situation. The probation office also confirms and gathers details of the defendant’s criminal history. This usually involves a brief summary of any previous convictions, and some of these can be quite blood curdling. I can recall two reports that involved defendants who became angry with their wife/girlfriend and attacked them with a machete.68

Once the probation office completes the pre-sentence report, they provide it to both the government and the defense for review and corrections. Most of the time, defense counsel will have only minor corrections; but, occasionally, there will be major issues—such as discrepancies in dates of conviction or dates of sentencing. These can have a huge impact on the Federal Sentencing Guidelines.69 Occasionally, defense counsel will file a request for sentencing below guidelines, which will require a government response.

Like in military jurisprudence, the federal system allows a defendant an opportunity to address the court, and most seemed to exercise this opportunity or allowed their defense counsel to present arguments. A person would have to have a heart of stone to not feel some sympathy for the tales of woe, misfortune, poverty, and crime. However, the criminal history of many of these defendants will oftentimes disabuse any sympathy one may have. I kept track of many of the cases I prepared for Grand Jury indictment and logged what type of criminal history the defendants had. The following list of offenses are some of the more notable ones I observed: identity theft; drug and alien smuggling; indecency with a child; driving while intoxicated; hit and run; burglary; theft; domestic battery with intent to inflict grave bodily harm; assault with a deadly weapon; rape; and resisting arrest. These were all offenses committed in the United States, either prior to or after the subject’s first deportation—the majority of which, in my experience, occurred after the first deportation. Even assuming these individuals had only immigration offenses, I often referred to the principles of military justice and found many of the tales of woe more evidence of extenuation than of either necessity or mitigation.70

Lessons Learned and Conclusion

Many JA broadening assignments impart lessons in what systems, processes, or even culture the broadened JA should seek to import into the Judge Advocate General’s (JAG) Corps. This SAUSA assignment is no different. The first lesson I would seek to implement is better utilization of paralegals. The second lesson is to develop a comprehensive plan for plea deals. Third, better coordination and synchronization with law enforcement agents would ease many military justice burdens that trial counsel and chiefs of justice experience in the JAG Corps

My time in Del Rio would not have been successful without the outstanding team of legal assistants I worked with in the Del Rio office. While not “paralegals” per se, they operated as paralegals and with an impressive degree of flexibility and professionalism.71 Allocating more time for military paralegals to learn their craft with dedicated study sessions and hands-on experience will be one of my priorities in the future. This is difficult, due to having to maintain Soldier skills; but, the JAG Corps should devote more time to paralegal training, as well as teaching attorneys how to better utilize their paralegals. A one-on-one discussion between senior paralegals and new trial counsel, as well as creative mentoring of junior paralegals, could improve efficiency for counsel and paralegals—particularly if this is continued regularly.

Another way to improve efficiency involves chiefs of justice developing a comprehensive plan for plea deals. Plea deals in the civilian federal system are relatively straightforward. The defendant pleads to the most readily provable charge, the Federal Sentencing Guidelines provide what the expected punishment is—based on the conduct and criminal history—and voila: the defendant knows what their range of sentencing is going to be.72 Anyone familiar with the military system knows that reaching a plea deal is no simple matter. I would recommend military justice advisors, trial counsel, and chiefs of justice spend significant amounts of time discussing cases prior to preferral with commanders to develop a comprehensive plan for approaching plea deals.

The greatest take-away from my experience in Del Rio was the benefits of close coordination with law enforcement agencies. The high degree of professionalism and experience of the law enforcement agencies was incredible and made prosecutors’ lives much easier; it eliminated much of the needless hassle that military justice advisors and trial counsel often experience. There were no “requests for opines”—which must be handled within a certain period of time—and I never heard a law enforcement agent say, “We have closed that case.” Many military justice advisors and trial counsel go to extraordinary lengths to foster good relations with law enforcement, but this is typically on an individual, one-on-one basis. In Del Rio, communication with law enforcement was something that happened on a daily basis, and sync meetings on large cases were consistent and thorough. It would behoove a military justice practitioner and supervisor to foster close coordination with law enforcement at all levels. This is something I will heavily emphasize as a military justice practitioner. Furthermore, there is at least one step the Army as a whole can take to institutionalize close coordination between military justice practitioners and law enforcement: embed a Criminal Investigation Command (CID) or military police (MP) agent inside the military justice office, as the JAG Corps did with special victim prosecutors.73

Having practiced military justice at Fort Bragg, North Carolina, I was constantly running back and forth to the CID or MP offices, or sending my paralegals to those offices for various reasons—such as interviewing agents, reviewing evidence, or double-checking discovery. This was a significant drain on my office’s time and resources. Embedding a CID agent at the military justice office could have alleviated this. As mentioned above, in Del Rio, there is a BP agent permanently assigned to the AUSA office. This agent facilitated the coordination with various border patrol stations and assisted in the production of witnesses and evidence. Having this agent relieved legal assistants and AUSAs from having to track down evidence and witnesses; it also relieved BP from having to send widely dispersed agents on varying schedules to the AUSA office. This resulted in the faster processing of cases, something every busy prosecutor and law enforcement officer wants. I highly recommend that the Army consider a pilot program of embedding CID and MP personnel in the military justice offices of major installations.

I consider my time as a SAUSA in the Del Rio sector an incredible learning and broadening experience. Seeing how other agencies operate and function, while not earth shattering, was still an incredibly helpful experience. It allowed me to hone my craft and gain confidence in both preparing cases and operating in the courtroom. It is my belief that building connections with other agencies and leaders can only be an asset down the road, especially if there is a future need for joint operations. I sincerely hope the DoD and DoJ will continue to look for opportunities to collaborate and cross-train in the future. TAL

 


MAJ Watkins is the Chief of Client Services in Fort Riley, Kansas.

The author would like to thank the entire Del Rio Division U.S. Attorney’s Office. He would especially like to thank the Chief, Matthew Watters, and Deputy Chief, Jody Gilzene. They were both amazing attorneys and mentors, and it was a privilege to work with them and the rest of the Del Rio team.



Notes

1. Rojelio Fernandez Munoz, Attorney at Law, Uvalde, Texas (circa July 2018). Mr. Munoz and his son mentored me when I was a young attorney in South Texas prior to my attendance at the Judge Advocate Officer Basic Course. Mr. Munoz and his son took me under their wings and helped me transition from a law student to an attorney. I considered Mr. Munoz a good friend and an excellent mentor. To my deep regret, he passed prior to the publishing of this article.

2. Katie Benner, Defense Dept. to Help Justice Dept. Prosecute Immigration Cases, N.Y. Times (June 21, 2018), https://www.nytimes.com/2018/06/21/us/politics/immigration-justice-defense-department.html.

3. Rose L. Thayer, Military Sending 21 Attorneys to Help Prosecute Border Cases, Stars & Stripes (June 21, 2018), https://www.stripes.com/news/us/military-sending-21-attorneys-to-help-prosecute-border-cases-1.534070.

4. QuickFacts Del Rio City, Texas, U.S. Census Bureau, https://www.census.gov/quickfacts/delriocitytexas (last visited Nov. 23, 2020).

5. Map of Del Rio, Tex., Google Maps, http://maps.google.com (search “Del Rio, Texas,” in search Google Maps field).

6. In terms of districts, Del Rio is in the U.S. District Court for the Western District of Texas which covers over 92,000 square miles. It has seven divisions, including the Del Rio Division. The Del Rio Division manages seven counties: Edwards, Kinney, Maverick, Terrell, Uvalde, Val Verde, and Zavala. See Office Locations, U.S. Dist. Ct. W. Dist. of Tex., https://www.txwd.uscourts.gov/court-information/office-locations/ (last visited Aug. 24, 2020) (click on “Del Rio” to view the counties served. Also, please note that, while I was there, at least part of Dimmit County fell within the Del Rio sector. This mostly included prosecuted cases from Dimmit County.).

7. Offs. of the U.S. Att’ys, U.S. Dep’t of Just., The United States Attorney’s Annual Statistical Report for Fiscal Year 2017, at 4 (2017), https://www.justice.gov/usao/page/file/1081801/download (June 16, 2020) [hereinafter U.S. Att’y FY 2017 Report].

8. Orlando L. Garcia, United States District Court, Western District of Texas, 2017 Fiscal Year Statistics 1 (2017), https://www.txwd.uscourts.gov/wp-content/uploads/District%20Statistics/2017/Fiscal%20Year%20Statistics%20-%202017.pdf.

9. Id. For comparison, the U.S. District Court for Maryland only had 505 criminal filings in 2017. Off’s of the U.S. Att’ys, supra note 7, at 3.

10. See Reentry of Removed Aliens, 8 U.S.C. § 1326.

11. 8 U.S.C. § 1101(a)(3).

12. 8 U.S.C. § 1101(a)(18).

13. 8 C.F.R. § 1.2 (2020).

14. Inadmissible Aliens and Expedited Removal, 8 C.F.R. § 235.3 (LEXIS through November 12, 2020 issue of the Federal Register) (omitting amendments appearing at 85 Fed. Reg. 72547 (2020), 85 Fed. Reg. 72549 (2020), and 85 Fed. Reg. 71827 (2020).

15. Inadmissable Aliens, 8 U.S.C.S. § 1182 (Lexis through Public Law 116-193, approved October 30, 2020).

16. 8 U.S.C. § 1101(a)(42).

17. Improper Entry by an Alien, 8 U.S.C.S. § 1325 (Lexis through Public Law 116-193, approved October 30, 2020).

18. See 8 U.S.C. § 1326(b) for a full list which offenses raise the possible levels of imprisonment.

19. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877, 48880 (Aug. 11, 2004).

20. 8 C.F.R. § 1.2 (2020).

21. Inspection by Immigration Officers; Expedited Removal of Inadmissible Aliens; Referral for Hearing, 8 U.S.C.A. § 1225(b)(1)(A)(i) (West 2009).

22. Designating Aliens for Expedited Removal, 69 Fed. Reg. at 48879.

23. 8 U.S.C.A. § 1225(b)(1)(A)(iii)(II) (West 2009).

24. United States v. Barajas-Alvarado, 655 F.3d 1077, 1082 (9th Cir. 2011).

25. Detention and Removal of Aliens Ordered Removed, 8 U.S.C.A. 1231(a)(5) (West 2018) (emphasis added).

26. Release or Detention of a Defendant Pending Trial, 18 U.S.C.S. § 3142 (LEXIS through PL 115-298, approved 7 Dec. 2018).

27. 8 U.S.C.A. § 1231(a)(5) (West 2018).

28. Expedited Removal of Aliens Convicted of Committing Aggravated Felonies, 8 U.S.C § 1228(c).

29. Another common immigration violation is contained in 18 U.S.C.A. § 1028. See Fraud and Related Activity in Connection with Identification Documents, Authentication Features, and Information, 18 U.S.C.A. § 1028 (LEXIS 2011).

30. Plyler v. Doe, 457 U.S. 202, 210 (1982).

31. Typically referred to as Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

32. Reentry of Removed Aliens, 8 U.S.C. § 1326.

33. Smuggling of people and goods along the border is pervasive, lucrative, and can include local public officials. See Maverick County Commissioner, 2 Accomplices Accused of Money Laundering, Cash Smuggling Scheme, KSAT (Oct. 18, 2012, 6:05 PM), https://www.ksat.com/news/2012/10/18/maverick-county-commissioner-2-accomplices-accused-of-money-laundering-cash-smuggling-scheme/.

34. U.S. Border Patrol Agent are required to become fluent in speaking Spanish. See Are Trainees Required To Learn The Spanish Language?, U.S. Customs & Border Prot., https://www.cbp.gov/faqs/are-trainees-required-learn-spanish-language (last visited Aug. 24, 2020).

35. Fed. R. Crim. P. 5.1.

36. It is onerous for an undocumented immigrant to refute that their clothes are muddy and wet and to explain why they are without identification. It is also hard to refute when they confessed to unlawfully crossing the river.

37. U.S. Immigration and Customs Enforcement, Policy No. 10074.2, Issuance of Immigration Detainers by ICE Immigration Officers (effective Apr. 2, 2017), https://www.ice.gov/sites/default/files/documents/Document/2017/10074-2.pdf.

38. Fed. R. Crim. P. 5.1(e).

39. Fraud and Related Activity in Connection with Identification Documents, Authentication Features, and Information, 18 U.S.C.A. § 3142 (West 2011).

40. In my experience, the vast majority of undocumented immigrant readily admit they are illegally present in the United States and provide their country of origin, typically Mexico or another country in Central America.

41. Fed. R. Evid. 803(6)-(7).

42. Bringing in and Harboring Certain Aliens, 8 U.S.C.A. § 1324 (West 2011).

43. Id.

44. Lesser penalties may be applicable if the smuggling was of a family member or not for profit, but this was rare in my experience.

45. I was not able to find specific numbers for the value of vehicles seized, but was able to discover the Western District of Texas obtained $5,841,458.57 in criminal forfeitures during fiscal year 2017. See U.S. Att’y FY 2017 Report, supra note 7.

46. Bringing in and Harboring Certain Aliens, 8 U.S.C.A. § 1324(1)(B) (LEXIS). While assigned to Del Rio, I worked on a case where five illegal aliens died when the vehicle they were being transported in rolled over while attempting to evade law enforcement. KABB/WOAI, 5 Dead After SUV Being Chased by Border Patrol Crashes, News 4 San Antonio (June 17, 2018), https://news4sanantonio.com/news/local/12-immigrants-ejected-4-die-after-car-being-chased-by-border-patrol-crashes.

47. Smugglers typically use nicknames in an attempt to evade law enforcement. Some of these can be quite colorful; one individual had a Spanish nickname which roughly translated to “Sheep.”

48. Farm to Market road is the title given to state-named roads in Texas.

49. Miranda v. Arizona, 384 U.S. 436 (1966).

50. María Isabel Carrasco Cara Chards, Malverde: The Story Behind the Man Who Became the Patron Saint of Drug Dealers, Cultura Colectiva (July 9, 2018), https://culturacolectiva.com/history/jesus-malverde-narc-saint. Jesus Malverde is the patron saint of smugglers and drug traffickers. Id.

51. Release or Detention of a Defendant Pending Trial, 18 U.S.C.S. § 3142(e)(3) (LEXIS through PL 115-298, approved Dec. 7, 2018).

52. In my experience, magistrates and judges took a hard line on those who attempted to flee police and/or risked the lives of the undocumented immigrant they were transporting.

53. Release or Detention of a Defendant Pending Trial, 18 U.S.C.A. § 3142(b) (LEXIS through PL 115-298, approved Dec. 7, 2018).

54. Memorandum from James M. Cole, Deputy Att’y Gen. on Department Policy on Early Disposition or “Fast Track” Programs to All U.S. Att’ys (Jan. 31, 2012), https://www.justice.gov/sites/default/files/dag/legacy/2012/01/31/fast-track-program.pdf.

55. Alan Feuer, In El Chapo’s Trial, Extraordinary Steps to Keep Witnesses Alive, N.Y. Times (Oct. 1, 2018), https://www.nytimes.com/2018/10/01/nyregion/el-chapo-trial-witnesses.html. While this article does not reference human smuggling, it does illustrate how dangerous some of these criminal enterprises can be to witnesses. Id.

56. Reporting Requirements for Individuals, 19 U.S.C.S. § 1459 (LEXIS through PL 115-298, approved Dec. 7, 2018).

57. On one occasion in Del Rio, an alleged U.S. Army deserter of six years was apprehended illegally crossing the border and pleaded guilty to a violation of 19 U.S.C. § 1459.

58. This rarely happens, but it would behoove a diligent attorney to always double-check.

59. On one occasion, I conducted initial appearances for twenty-one felonies in one morning, all for violations of 8 U.S.C § 1326.

60. Judges are required to personally address every defendant and for every defendant to respond individually, which takes a significant amount of time as all proceedings require an interpreter. Fed. R. Crim. P. 11; United States v. Arqueta-Ramos, 730 F.3d 1133 (9th Cir. 2013).

61. Release or Detention of a Defendant Pending Trial, 18 U.S.C.A. § 3142(f)(2) (LEXIS through PL 115-298, approved Dec 7, 2018).

62. Fed. R. Crim. P. 5.1(e).

63. Id.

64. Note that, prior to the filing of the indictment, the law enforcement organization will have interviewed all relevant witnesses and will have gathered—or be in the process of gathering (e.g., phone analysis)—all evidence.

65. Fed. R. Crim. P. 5.1.

66. Manual for Courts-Martial, United States, R.C.M. 406(b) discussion (2019) [hereinafter MCM].

67. In Example 1, I briefly mentioned the use of a pre-sentence report drafted by the probation office and its reliance by all parties to determine the appropriate sentence.

68. A machete is a bladed implement used in agriculture to clear undergrowth. The average length is twenty to twenty-four inches with a wide curved blade.

69. United States Sentencing Commission, Guidelines Manual (2018).

70. “Matter in extenuation of an offense serves to explain the circumstances surrounding the commission of an offense, including those reasons for committing the offense which do not constitute a legal justification.” MCM, supra note 66, R.C.M. 1001(d)(1)(A). Mitigating evidence is evidence presented which might convince the judge/panel to give the Defendant a lesser sentence. In military jurisprudence, these would be things such as evidence of the accused’s service record, courage, awards, etc. See id. R.C.M. (d)(1)(B).

71. Legal assistant Megan McKenna was instrumental in ensuring I had a successful tour at the Del Rio office.

72. The Military Justice Act of 2016 took a significant step in the right direction with its inclusion of segmented sentencing; but, it is not clear at this time if this will either reduce or increase the variances in sentencing between jurisdictions. This is for a variety of reasons, but it is mainly due to the wide discretion commanders have when it comes to accepting guilty pleas—which I discuss further in this article.

73. C. Todd. Lopez, Army’s Special Victims Prosecutors Bring Enhanced Expertise to Courtroom, U.S. Army (Oct.17, 2013), https://www.army.mil/article/113253/armys_special_victims_prosecutors_bring_enhanced_expertise_to_courtroom.

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