The United States Court of Appeals for the Ninth District has rebuked a federal judge and a Department of Homeland Security lawyer with Immigration and Customs Enforcement (ICE) for abusing the rights of a drug dealer with a history of illegally entering the United States from Mexico.
The appeals court claims Southern California ICE attorney Nathaniel B. Walker won a fast track, guilty plea from Paul Gabriel Morales Heredia by promising a sentence of six months, but violated the deal by making “inflammatory” remarks about the defendant’s criminal history to Judge Stephen V. Wilson, who reacted by increasing punishment to 21 months in prison.
“The government’s inflammatory discussion of Morales’s previous crimes served no practical purpose but to argue implicitly for a harsher punishment than the government had agreed to recommend,” Judge Kim McLane Wardlaw wrote this month on behalf of herself, Chief Judge Alex Kozinski and Judge Raymond C. Fisher. “It also violated the government’s express promise not to suggest in any way that the district court impose a sentence other than the stipulated one.”
The appeals court determined that Wilson, a former federal prosecutor appointed to the bench in 1985 by President Ronald Reagan, wrongly sided with Walker in 2012 over federal public defender Jesse Gessin, who’d complained the prosecutor’s actions were “clearly aimed” at garnering a higher sentence.
“The government has great discretion in plea bargaining,” Gessin unsuccessfully argued to Wilson. “If the government is not satisfied with the recommended sentence, then it should not have bargained to make such a recommendation.”
For his part, Walker insisted that he didn’t violate the agreement because he “consistently, vigorously and thoroughly advocated” the punishment of six months. He claimed his sentencing brief discussion of Heredia’s criminal history–including three prior deportations–was “legitimate” to explain the reasonableness of the proposed punishment. To “sanitize” facts about the defendant would have been “in abrogation” of his prosecutorial duties, he argued.
The non-sanitized, allegedly inflammatory facts Walker put in his sentencing brief included that Heredia’s record includes convictions for selling heroin–once possessing 56 balloons with nine grams of the narcotic, injury-causing domestic violence against the mother of his child, receiving stolen property and commercial burglary.
The prosecutor observed in his court filings that the defendant–who was born in 1971 and last arrested by the Fullerton Police Department in August 2011–has demonstrated “a consistent disregard for both the criminal and immigration laws of the United States.”
According to the Ninth Circuit panel, “Once the district judge has seen or heard the offending words that denied the defendant the benefit of his bargain, any further proceedings before him would necessarily be tainted by the government’s breach.”
The court vacated the punishment and ordered that the matter be reassigned to a different federal judge in the Central District of California.
Nothing done in the case changes two highly likely future outcomes: Heredia (a.k.a. Alejandro Montada and Alejandro Montada Heredia) will be deported back to Mexico for a fourth time, and then–despite U.S. taxpayers shelling out nearly $13 billion annually for border protection programs–he’ll walk back into the U.S. without permission.
CNN-featured investigative reporter R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; obtained one of the last exclusive prison interviews with Charles Manson disciple Susan Atkins; won inclusion in Jeffrey Toobin’s The Best American Crime Reporting for his coverage of a white supremacist’s senseless murder of a beloved Vietnamese refugee; launched multi-year probes that resulted in the FBI arrests and convictions of the top three ranking members of the Orange County Sheriff’s Department; and gained praise from New York Times Magazine writers for his “herculean job” exposing entrenched Southern California law enforcement corruption.