Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 96 CR 66 John D. Tinder, Judge.
Before CUMMINGS, KANNE and ROVNER, Circuit Judges.
Ismael Coronado-Navarro was charged with being an alien present in the United States after prior deportation, in violation of 8 U.S.C. sec. 1326. He was convicted after a bench trial and sentenced to twenty-four months imprisonment. Although the circumstances that lead to this conviction can only be described as tragic, this is a simple case of waiver, and we must affirm the judgment of the district court.
Ismael Coronado-Navarro ("Coronado") entered the United States illegally in 1984 at the age of sixteen. He settled in Goshen, Indiana, where he held a variety of jobs. He married, divorced, and married again, having children for the first time with his second wife. During his time in Indiana, Coronado committed a number of motor vehicle violations, including several for driving while intoxicated, and some for driving without a license or insurance. He was ultimately convicted under Indiana's Habitual Traffic Offender law, and sentenced to eighteen months imprisonment. The court suspended all but six months of his sentence, and during those six months in prison, the INS came to question him. The INS determined that Coronado had entered the United States without documentation, and that his wife had contacted the INS in Lincoln, Nebraska in an attempt to petition for legal status for her husband. At the time, Coronado had one child, and his wife was pregnant with their second child. When he finished serving his sentence, he was transferred from the Indiana Department of Corrections to an INS detention facility in Chicago, and then to an INS facility near Brownsville, Texas.
Shortly thereafter, Coronado appeared for a deportation hearing before an administrative law judge at the INS' Los Fresnos Processing Center near Brownsville. Although that proceeding is not part of the record, both parties submitted portions of the transcript to this Court. At the hearing, after telling the ALJ that he did not wish to wait to have counsel appointed and yet did not wish to go forward representing himself, Coronado insisted repeatedly that "I want my deportation." Ultimately, the ALJ ordered that he be deported. Apparently, Coronado's wife was then days away from giving birth to their second child and Coronado had decided that the most expedient way to return to his wife in Indiana was to submit to deportation, and then come back into the United States as quickly as possible. The parties dispute whether Coronado believed he could legally re-enter the United States after being deported, but in any case, that is exactly what he did, arriving in Goshen a few days after the birth of his second child. He was arrested shortly thereafter because he had failed to report to his probation officer upon being released from prison. While serving additional time for the probation violation, Coronado was charged with violating 8 U.S.C. sec. 1326.
The district court set a trial date, and Coronado's attorney moved to continue the date for several weeks in order to have time to file a "pre-trial motion to challenge the deportation of Mr. Coronado [which] may be the only plausible defense to the present charge." Record on Appeal 21, at p. 3. The court accommodated the request by continuing the trial date, and issuing an order setting a briefing schedule: "Counsel for the Defendant indicated that he intends to move to dismiss this indictment through a collateral attack on the deportation hearing alleged in it. In order to keep this case on track for the recently rescheduled trial date, the following briefing schedule is set." Record on Appeal 23, at p.1. On the date set for defendant to file his motion to dismiss, Coronado filed nothing with the court. In fact, Coronado's attorney did not raise the issue of the collateral attack on the deportation proceeding again until the morning of trial. At that time, in the context of a discussion regarding Coronado's waiver of a jury trial, Coronado's attorney indicated that Coronado was waiving his right to a jury trial because he intended to challenge only whether the government could prove beyond a reasonable doubt that Coronado was lawfully deported:
My research of the case law, which I conveyed to Mr. Coronado both in English and in Spanish, was that that's a legal question and should either be brought by pretrial motion or other cases said it could just be tried to the Court. And so it's not--our defense, so to speak, is not a matter that could be properly raised before the jury in any event.
I discussed this with Mr. Coronado over the last six weeks. When we decided not to file a pretrial motion, basically duplicate the trial, we believed it would be in his best interest to waive the jury. And that's why we're here today, and I fully discussed that with him.
Transcript of Proceedings at Trial before the Honorable John D. Tinder, at p. 10. At this point, the court accepted Coronado's waiver as voluntary and knowing. Neither the court nor the government addressed at that time whether Coronado had possibly waived his collateral attack on the deportation by failing to file a pre-trial motion.
Moments later, the trial began. The government stated in opening argument that Coronado had waived his collateral attack on the deportation hearing. Coronado again explained in opening that he intended to challenge whether the government could prove as an element of its case that Coronado had been lawfully deported. Again, the court did not comment on the possible waiver. The government first called Michael Reeves, a special agent with the United States Department of Justice, Immigration and Naturalization Service. During cross-examination of Agent Reeves, Coronado sought to introduce into evidence an audio tape of the deportation hearing. The government objected on the grounds that Coronado had waived any legal challenge to the deportation proceeding by not raising it in a pretrial motion as directed by the court. The court deferred ruling on the waiver, and allowed admission of the ...