Metropolitan News-Enterprise


Thursday, August 25, 2005


Page 1


Ninth Circuit Denies ‘Necessity’ Defense to HIV-Positive Deportee


By KENNETH OFGANG, Staff Writer/Appellate Courts


A district judge properly barred a Mexican immigrant charged with illegal reentry after deportation to use a “necessity” defense based on his HIV-positive status and alleged need to search for his children in the United States regarding end-of-life decisions, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In a per curiam opinion, Judges Raymond C. Fisher and Jay Bybee and Senior Judge James R. Browning said Roberto Cervantes-Flores failed to proffer evidence that he was at imminent risk of death or other serious harm in February 2003, when a Border Patrol agent spotted and chased him approximately 40 miles north of the border, near Tecate.

The court did, however, send the case back to U.S. District Judge Thomas Whelan of the Southern District of California for possible reconsideration of Cervantes’ eight-year prison sentence in light of the Supreme Court’s recent ruling that the Sentencing Guidelines are advisory rather than mandatory.

Prosecutors presented evidence that Cervantes was arrested in 1998 for illegal entry, sentenced to four years in prison, and taken across the border at Hidalgo, Texas on Jan. 28, 2003 pursuant to a removal order.

Early Morning Encounter

A week later, Border Patrol Agent Jason Wardlow testified, he spotted Cervantes walking alongside the highway during the early morning hours. Cervantes fled when he saw the agent’s vehicle, Wardlow said.

Wardlow said he jumped from his vehicle, chased the defendant into the desert for approximately three-fourths of a mile, and then subdued and handcuffed him. Upon questioning, he said, Cervantes admitted that he was a Mexican national who had entered the United States illegally.

Cervantes moved to suppress his statements to the agent on the ground he had received no Miranda warnings. Whalen ruled that Miranda did not apply because the agent had made a legitimate border stop rather than a custodial arrest.

At trial, the defense proffered evidence, in support of its necessity defense, that Cervantes was diagnosed as being HIV-positive in fall 2002. Because he had not seen his children since 1990 and knew only that they lived somewhere in the United States, he needed to come to this country and search for them so that he could speak to them before his death, he said.

Cervantes said he was told by customs officials that having been deported, there was no legal way for him to return to the United States to search for his children.

Whalen ruled that the proffered evidence could not be presented to the jury because it was insufficient as a matter of law to establish necessity.

The judge explained:

“There was no threat of imminent death or serious bodily injury. Your

offer of proof was he was diagnosed HIV-positive. While he may have a more limited life span than others, there is no indication whatsoever that his threat of death or serious bodily injury was imminent, which is what the law required.”

On appeal, the defense argued that the evidence should have been admitted. It also argued that Cervantes was in need of medication that is not available in Mexico.

No Harm

The appellate panel agreed with the trial judge, saying nothing in the proffer would have established a necessity defense, one element of which is that the defendant acted to prevent imminent harm.

The argument regarding medication could not be considered because it was not proffered to the trial court, the appellate judges added.

The court also rejected the Miranda argument, explaining that the agent had reasonable suspicion to stop Cervantes, given the location at which he was seen and the fact that he fled when he saw the agent’s vehicle. Since the stop was reasonable, and the questioning limited to that which was necessary to determine Cervantes’ nationality and immigration status, no custodial interrogation occurred, the judges said.

The fact that Cervantes was handcuffed did not convert the stop into an arrest for Miranda purposes, the judges said, because the agent had reasonable flight and security concerns.

The case is United States v. Cervantes-Flores, 04-50113.


Copyright 2005, Metropolitan News Company