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First 'zero tolerance' case to go to trial didn't go well for gov't

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First 'zero tolerance' case to go to trial didn't go well for gov't

  •  The central processing center in McAllen, Texas, as photographed by U.S. Customs and Border Protection during a media tour June 17.
    CBP The central processing center in McAllen, Texas, as photographed by U.S. Customs and Border Protection during a media tour June 17.

Since the surge of illegal entry misdemeanor cases began flooding San Diego’s federal courts, hardly any have gone to trial. The first one that did was ultimately dismissed.

Before prosecutors moved to toss the case, dispatch tapes revealed that the defendant had been detained without being briefed on his rights for much longer than a Border Patrol agent had testified.

Attorney General Jeff Sessions announced his “zero tolerance” approach to the border in April, under which anyone caught crossing the border illegally is charged with a crime. That’s meant hundreds of new illegal entry misdemeanor cases each week.

Nearly all of the migrants charged with illegal entry misdemeanors have pleaded guilty. That usually results in a “time-served” sentence – unless an individual had a criminal history or prior deportations – meaning defendants are usually released after a guilty plea.

Some migrants see pleading guilty as a way to expedite their release from custody – particularly if they’ve been separated from their child – though many are then transferred to Immigration and Customs Enforcement detention for deportation or to await immigration proceedings. Many don’t want to take the chance to try their cases if it means spending more time in jail.

But in a rarity, Vicente Rosario-Ramirez, a Mexican national, went to trial. Rosario-Ramirez was apprehended on May 14 in an area known to border agents as “Three Sisters” in the Boulevard Border Patrol Station area of responsibility, roughly four miles north of the border and more than 20 miles east of Tecate Port of Entry, according to court documents.

The case demonstrates how the zero-tolerance policy can undermine defendants’ due process rights – since it creates incentives for defendants to plead guilty, when they may be able to successfully fight their charges. It also demonstrates the ways in which the prosecutions strain court time and resources.

Rosario-Ramirez’s case was the first illegal entry misdemeanor under “zero tolerance” to go to trial in San Diego, according to court transcripts from his trial.

“Would you be surprised to find out this is the first and only case of all these new [illegal entry misdemeanor] prosecutions that’s going to trial?” one of his attorneys, Michael Marks, from the Federal Defenders, a nonprofit that takes the bulk of the federal criminal defense cases pro-bono, asked Judge Alan Burns, who heard his case. “Because people are pleading guilty because they don’t want to sit around.”

Border Patrol Agent Robert Carroll Frederick testified that on the morning Rosario-Ramirez was arrested, he was first tipped off to people in the area by seismic sensors. He was stationed on a hill, which affords a view of the border area, and soon after was able to see a group of people.

He broadcasted a radio notice to other agents. One who responded was Agent Adrian Cundiff, who initially apprehended Rosario-Ramirez.

Cundiff saw a group of five running south, and tried to cut them off, according to court documents. He yelled for them to stop. Three did, including Rosario-Ramirez, his wife, Edbeidy Balderas-Valle, and one other person. The other two people in the group continued to run.

About a minute later, Cundiff said his teammates arrived. He left the three with his teammates, and took off to chase the two who had run.

Cundiff said he was back to Rosario-Ramirez and the others in about 10 minutes.

Illegal entry cases often rely, in part, on the defendant’s “admission” that he or she entered the United States illegally. In this instance, Rosario-Ramirez’s attorneys questioned whether those statements were taken before he was “Mirandized,” or read a list of his rights, including the right to remain silent and to an attorney.

Routine questioning at the border isn’t usually considered an interrogation. So, for instance, border agents don’t typically read Miranda rights to someone in an initial interaction in which the agent stops and asks a person his identity, nationality and whether he has permission to have entered the United States.

But at some point, routine questioning becomes custodial interrogation, under which a person is entitled to receive a Miranda warning. The line is typically read once someone is placed in shackles, if his or her clothes or documentation is confiscated, if he or she is moved to a holding cell or interrogation room or if questioning progresses for hours.

Rosario-Ramirez’s attorneys argued that the agent’s testimony should be suppressed because he was not read his Miranda rights despite being held in custody while the agent chased down other people,  a period in which he presumably made self-incriminating statements. They also argued that since Rosario-Ramirez was moved from the place of his initial arrest to a Border Patrol vehicle, he should have been read his rights.

“At the time that his statements were ultimately taken, he had already been detained or arrested for 10 minutes, is what Agent Cundiff just testified,” Marcus Bourassa, one of Rosario-Ramirez’s attorneys told the judge, arguing that Rosario-Ramirez should have been read his rights. “He had moved several hundred yards from where he was first detained. He had been moved past a location where he could have been interviewed. He had been told he was not free to leave.”

The judge expressed disagreement with that issue.

But the trial had to be continued because prosecutors hadn’t provided the defense with dispatch tapes from Rosario-Ramirez’s arrest.

The dispatch tapes, obtained by Voice of San Diego, showed something different than what the agent described: Rosario-Ramirez had been held by the other agents for hours – not minutes – without being read his rights.

Prosecutors dismissed the case. They didn’t specify whether it was the discrepancy between the agent’s testimony and the dispatch tapes is what led to the decision.

“The United States moves the court for an order to dismiss this case in the interest of justice,” Assistant U.S. Attorney David Finn said, according to court transcripts. “As the court is aware, there’s a number of issues with this case going to trial so quickly. And those issues have kind of continued throughout the weekend with the United States complying with its discovery, and the issues with the witnesses that at this time we’re moving to dismiss in the interest of justice.”

Rosario-Ramirez’s wife, Balderas-Valle, was arrested with him. Her trial was set for Wednesday, but on Friday, the government dismissed that case too.

Balderas-Valle was in Border Patrol custody at 8:59 a.m. the day she was detained, but wasn’t read her Miranda rights until 1:23 p.m., according to court documents.

“The government has insufficient admissible evidence to successfully prosecute this case,” reads the government’s motion to dismiss. “Consequently, in order to avoid unnecessary use of prosecutorial and judicial resources, and in light of the nature of the pending charge, the Government moves to have this case dismissed.”

Maya Srikrishnan is a reporter for Voice of San Diego. She writes about the U.S.-Mexico border and immigration issues in San Diego County. She can be reached at

This story was first published by Voice of San Diego. Sign up for VOSD’s newsletters here.

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