United States v. Sanchez

United States v. Sanchez

Opinion

 [*356]  TINDER, Circuit Judge. Julio Cesar Sanchez, an El Salvadoran citizen and national, was removed from the United States to Mexico in September 2006. Six months later, in March 2007, Sanchez presented invalid permanent resident documents and successfully gained  [*357]  entry into the United States at the same port from which he was deported, Laredo, Texas. The record lacks any indication of what prompted Sanchez to return when he did, and it is also unclear whether Sanchez remained in Mexico from September to March or if he made it home to El Salvador before returning. (He claimed he asked for permission to reenter the United States at the U.S. Embassy in San Salvador, but the government has no record of any such request.) In any event, by April 2007 Sanchez  [**2] was in Chicago, where the police caught him participating in a drug deal. He was arrested, pleaded guilty to delivery of a controlled substance, and received three years' probation and a $ 1600 fine.

While Sanchez was in the custody of Cook County authorities pending the resolution of his drug delivery charge, an immigration agent interviewed him and learned that he was an illegal alien who had previously been removed from the United States. The agent lodged a detainer against him, and a grand jury indicted him for illegal reentry in violation of 8 U.S.C. § 1326(a) & (b)(2). Sanchez proceeded to trial on the charge in 2008. At trial, the government called as a witness Douglas Standerfer, the immigration agent who had interviewed Sanchez. Standerfer testified that Sanchez was a native and citizen of El Salvador who had been ordered removed to El Salvador but in fact had been mistakenly removed to Mexico. During that removal, Standerfer testified, Sanchez had been given--and placed his fingerprint on--a Form I-294 notifying him that he could not return to the United States without the express consent of the Attorney General. The Form I-294 bearing Sanchez's fingerprint was entered into  [**3] evidence without objection, as were several other documents from Sanchez's alien registration file, including the "Record of Sworn Statement" memorializing his interview with Standerfer.

On cross-examination of Standerfer, Sanchez's counsel started asking questions about the mistaken removal to Mexico. The district court requested a sidebar, at which it questioned the legal significance of that fact. Sanchez's defense team explained that they wanted to argue to the jury that because Sanchez had been taken to the wrong country, he had never been "removed" for purposes of 8 U.S.C. § 1326 and therefore could not be guilty of illegal reentry. They also proposed a jury instruction relating to this theory. The district court expressed surprise at this previously unarticulated theory of defense and admonished Sanchez's counsel for not bringing the theory to its attention earlier. See Tr. 99-101, May 7, 2008. After counsel explained that prior to hearing Standerfer testify they were unaware that the removal to Mexico rather than El Salvador was due to an error in Sanchez's file, id. at 92, the district court temporarily excused the jury and convened a hearing to determine whether Sanchez's  [**4] theory and instruction could be presented to the jury.

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