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United States v. Urena

United States Court of Appeals, Seventh Circuit

December 22, 2016

United States of America, Plaintiff-Appellee,
v.
Jose J. Urena, Defendant-Appellant.

          Argued December 5, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cr-297 - Gary Feinerman, Judge.

          Before Easterbrook and ROVNER, Circuit Judges, and Shadid, Chief District Court Judge. [*]

          Shadid, Chief District Court Judge.

         Jose 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).

         The 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.

         Urena 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.

         Exclusion 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).

         At trial the government called Erwin Paz, the Immigration and Customs Enforcement agent who testified as to the contents of Urena's A' file.[1] 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.

         Not 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.")

         On 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.

         Outside 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.

         The 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."

         After a 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 ...


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