United States District Court, W.D. Virginia, Harrisonburg Division
REPORT AND RECOMMENDATION
JAMES G. WELSH, Magistrate Judge.
AMENDED BY STIPULATION AND AGREEMENT OF THE PARTIES
On October 7, 2014 came the United States, by counsel, and came also the defendant, in his own proper person and by his counsel. At which time counsel for the parties jointly represented that the parties had entered into a plea agreement understanding, pursuant to which the defendant desires to waive his absolute right to grand jury presentment and to permit the filing of a criminal Information charging him with one count of Alien Smuggling and with one count of Illegal Reentry subsequent to conviction of a felony offense.
The court then received for filing the Information charging in Count One that on or about August 21, 2014, in this district and elsewhere, the defendant SAMUEL MENDEZ did knowing and in reckless disregard of the fact that a certain alien, H.M.P., had come into, entered, and remained in the United States in violation of law, did transport and move said alien within the United States by means of transportation and otherwise, in furtherance of such violation of law, and for the purpose of commercial advantage and private financial gain. All in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i); and charging in Count Two that on or about August 21, 2014, in or near Augusta County, within this district, the defendant SAMUEL MENDEZ, an alien, was found in the United States after having been removed therefrom on or about December 16, 2011, at or near New Orleans, Louisiana, subsequent to a conviction for commission of a felony, and not having obtained the express consent of the Secretary of Homeland Security to reapply for admission to the United States; all in violation of 8 U.S.C. §§ 1326(a) and (b)(1). In addition the Information contains a Notice of Forfeiture apprising the above-named defendant that certain of his property is subject to forfeiture upon conviction of the offense alleged against him in Count One.
In accordance with the provisions of Title 28 U.S.C. § 636(b) and with the express consent of the defendant and his counsel, an initial appearance and waiver of indictment proceeding was conducted before the undersigned on the same date. The proceedings were recorded by a court reporter. See Rule 5.1(g). A qualified Spanish language interpreter was present and gave his oath/affirmation to make a true translation of the proceeding. See Rule 28 and Evidence Rule 604. The United States was represented by Elizabeth Wright, Assistant United States Attorney. The defendant was at all times present in person and with his counsel, Lisa Lorish, Assistant Federal Public Defender.
The defendant was advised of his right not to make a statement, and that any statement made may be used against him. See Rule 5(d)(1)(E). It was then noted for the record that the defendant had been previously apprised of his right to retain counsel or to request appointment of counsel and that counsel had been appointed pursuant to his request. See Rule 5(d)(1)(B). In response to the court's inquiry, the defendant represented that he had been given a reasonable and adequate opportunity to consult with his counsel and that he was prepared to proceed. See Rule 5(d)(2).
After the defendant was placed under oath, he stated that he understood his obligation to testify truthfully in all respects under penalty of perjury, and he understood the government's right in a prosecution for perjury or false statement to use against him any statement that he gives under oath. The defendant then testified that he cannot speak or understand the English language without the assistance of the interpreter, and with such assistance he is able to understand and participate fully in the proceeding without difficulty. He stated he has no medical condition, either physical or mental, which might interfere with his ability to understand and participate in the proceeding; he is using no medication or drugs which might impair his ability to understand and participate in the proceeding, and his mind is clear. The defendant's attorney then confirmed that she had discussed with her client the issues related to a waiver of indictment on the offense charged in the Information, that her client fully understood his right to indictment by grand jury, and that the decision of the defendant to waive indictment on the charges was fully voluntary on his part.
DEFENDANT'S RESPONSES TO RULE 7 INQUIRIES
Upon further questioning, the defendant confirmed that no threats or promises had been made to induce him to waive grand jury indictment and that his decision to proceed on the charged offenses by Information was fully voluntary. After acknowledging his signature on the written Waiver of Indictment, it was received, filed and made a part of the record. The Information, formally charging the defendant in Count One with the felony offense of transporting a certain illegal alien within the United States for commercial advantage and private financial gain, and charging the defendant in Count Two with the felony offense of being found in the United States after having been legally removed without having obtained the express consent of the Secretary of Homeland Security to reapply for admission. It was noted for the record that the defendant's waiver of indictment was knowingly and voluntarily made with the advice and assistance of counsel.
In accordance with the provisions of Title 28 U.S.C. § 636(b) and with the defendant's informed and written consent, a Rule 11 inquiry was also conducted before the undersigned on the same date; the government presented a written proffer of evidence for the purpose of establishing an independent basis for the plea, and the defendant entered a plea of guilty to the felony offense charged in Count One of the Indictment. The defendant was at all times present in person and with his counsel.
DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES
The defendant was addressed personally in open court and reminded that he was under oath and obligated to testify truthfully. He expressly acknowledged that he was obligated to testify truthfully in all respects under penalty of perjury and that he understood the government's right, in a prosecution for perjury or false statement, to use against him any statement that he gives under oath. See Rule 11(b)(1)(A).
The defendant testified to the following personal facts: his full legal name is SAMUEL MENDEZ; he is thirty-one (31) years of age, and he attended school of two years in Mexico. His ability to read and understand English is limited; however, with the assistance of the Spanish language interpreter he reiterated that he was fully able to understand and participate in the proceedings. He testified that he had no medical condition, either physical or mental, which might interfere with his ability to understand and to participate fully in the proceeding; he stated he was using no alcoholic beverage, medication or drugs which might impair his ability to participate fully in the proceeding and that his mind was clear. He stated that he understood he was in court for the purpose of entering a plea of guilty to a felony offense which he could not later withdraw. Upon inquiry, the defendant's attorney represented that she had no reservations about the defendant's competency to a enter plea of guilty to the charged felony offense set forth in Count One.
The defendant acknowledged that he had received a copy of the Information and that it had been fully translated and explained to him. He stated that he had discussed the charges with his attorney and had been given enough time to do so. He stated that he understood the nature of the charges against him in the Information and specifically understood it charged two felony offenses and a forfeiture notice. See Rule 11(b)(1)(G). He testified that he had discussed any possible defenses with his attorney and that he had been given adequate time to prepare any defenses he might have to the charges. He stated that his decision to enter a plea of guilty to Count One had been made after consulting with his attorney. He stated he was fully satisfied with the services of his attorney, and it was his intention and desire to enter a plea of guilty to Count One pursuant to the terms of the plea agreement.
The defendant confirmed that he fully recognized and understood his right to have the Rule 11 hearing conducted by a United States district judge, and he gave his verbal and written consent to proceed with the hearing before the undersigned United States magistrate judge. ...