December 5, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13-cr-297 - Gary
Easterbrook and ROVNER, Circuit Judges, and Shadid, Chief
District Court Judge. [*]
Shadid, Chief District Court Judge.
Urena, who was born in and is a citizen of Mexico, was
indicted on one count of being an alien found in the United
States after having been previously deported, in violation of
8 U.S.C. § 1326(a).
indictment alleged that Urena had been deported and removed
from the United States on March 4, 2011, and that he was
found in Kane County, Illinois on November 26, 2012, without
previously having obtained the express consent of the
Secretary of Homeland Security to be admitted into the United
States. Urena was convicted at a jury trial held in the
Northern District of Illinois and was sentenced to the
custody of the Bureau of Prisons for a period of 100 months,
followed by a three-year term of supervised release. Urena
was also directed, at the term of his prison sentence, to
surrender to an authorized official of the Homeland Security
Department for a determination on the issue of deportability.
appeals raising two issues. First, Urena appeals the District
Court's refusal to exclude evidence of Urena's seven
prior removals under Rule 404(b) of the Federal Rules of
Evidence. Second, Urena appeals the District Court's
denial of Urena's Motion for a Mistrial after the
prosecution published to the jury an exhibit that included
the fact of Urena's prior conviction for "Felony
Class 4 Cocaine Possession." The Court will address both
issues in turn.
of evidence pursuant to Rule 404(b) is reviewed for abuse of
discretion. United States v. Curtis, 781 F.3d 904,
907 (7th Cir. 2015).
trial the government called Erwin Paz, the Immigration and
Customs Enforcement agent who testified as to the contents of
Urena's A' file. Agent Paz testified that Urena had
received a written warning at the time of his removal from
the United States on March 4, 2011, and that Urena was not
allowed to reenter the United States without the permission
from the Department of Homeland Security or the Attorney
General. The written warning was admitted at trial as
government's Exhibit 7.
having the necessary approval is an element of the offense. 8
U.S.C. § 1326; see also United States v.
Rea-Beltran, 457 F.3d 695, 702 (7th Cir. 2006),
citing United States v. Torres, 383 F.3d 92, 95 (3d
Cir. 2004). (Under 8 U.S.C. § 1326(a), "the
government must establish: (1) that the defendant is an
alien; (2) that the defendant was deported or removed in
accordance with a valid deportation order; and (3) that the
defendant has reentered the United States without the
permission of the Attorney General.")
cross examination, defense counsel questioned Agent Paz
whether government's Exhibit 7 was in English. Agent Paz
answered that the oral statements were communicated to Urena
in English. On redirect, Agent Paz testified he spoke with
Urena in English.
the presence of the jury the government argued the door had
been opened as to Urena's ability to understand English
and sought introduction of evidence that Urena had been
removed from the United States on seven previous occasions.
defense objected to the admission, and instead offered to
stipulate that Urena spoke English. The District Court found
the defense's proposed solution did not completely take
care of the problem, finding the issue raised as a result of
the defense's questioning "is not how well Urena
understood English. It's whether he understood that he
was not to return to the United States."
Rule 404(b) analysis the District Court allowed evidence of
Urena's seven prior removals, finding "the only
conceivable purpose of asking that question was to suggest
that the defendant didn't know he couldn't come
back/' and ...