USA v. Morales-Gervacio

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RAUL MORALES-GERVACIO,
Defendant.
Case No.: 3:19-mj-24164-BGS-DMS-1
ORDER DENYING DEFENDANT’S
APPEAL AND AFFIRMING
JUDGMENT OF CONVICTION
Defendant Raul Morales-Gervacio appeals his misdemeanor conviction, entered
after a bench trial before United States Magistrate Judge Bernard G. Skomal, for attempted
illegal entry in violation of 8 U.S.C. § 1325(a)(1). This appeal has been pending since July
27, 2020, but for unknown reasons was not identified by the Court as fully briefed and
ready for disposition. 	The Court apologizes for the delay. 	Having now reviewed the
matter, the Court respectfully denies Defendant’s appeal and affirms his judgment of
conviction.
I.
BACKGROUND
A. Factual Background
On the evening of October 8, 2019, Border Patrol Agent Brian Miller was operating
a Mobile Surveillance Capability scope (a device that detects heat and displays a person’s
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silhouette) from an elevated position near the southern border. 	(Tr. Mot. Hr’g/Trial
Proceedings, ECF No. 30 at 6–7, 16 [hereinafter Tr.].) The nearest port of entry was about
25 miles away, and an 18-foot fence guarded the border in the area. (Id. at 8, 13.) A few
minutes after 7:00 p.m., Miller saw two people jogging north, roughly 50 to 70 yards north
of the border fence and east of the town of Jacumba Hot Springs. 	(Id. at 7, 15–16.) 	He
relayed his observations to other agents. 	(Id. at 10.) 	When a responding agent parked
about 40 yards north of the two individuals, Miller saw them duck down and appear to hide
behind a bush. (Id. at 10–12.)
Miller guided Agent Michael Smith over the radio. (Id. at 14, 20–21.) It was getting
dark, and Smith walked south with a flashlight. (Id. at 21.) Smith found Defendant and
another man in an open field “crouched down, kind of trying to get into the brush.” (Id. at
21–22.) 	Defendant did not flee. 	(Id. at 27.) 	Smith identified himself in Spanish and
questioned the men’s citizenship. 	(Id. at 23.) 	Defendant replied that he was a Mexican
citizen, that he had no documents allowing him to enter or remain in the United States, and
that he was in the country illegally. (Id. at 23–24.) Smith arrested both men. (Id. at 24–
25.)
At the Border Patrol station, Agent Allen Botello advised Defendant of his Miranda
rights in Spanish, and Defendant agreed to speak. (Id. at 30–33.) Defendant stated that he
was born in Mexico and is a Mexican citizen, that he had no documents permitting him to
enter the United States, that he had not been examined by an inspection officer, and that he
was headed to Los Angeles. (Id. at 31–34.) He also said he was coming to see his children
or family, that he feared “narco trafficking” in Guerrero, and that he feared harm if he
returned to Mexico. (Id. at 35–36.)
B. Procedural History
The Government filed a complaint charging Defendant with misdemeanor improper
attempted entry by an alien under 8 U.S.C. § 1325(a)(1). (ECF No. 1.) He filed a pretrial
motion seeking a jury trial and dismissal of the complaint on constitutional grounds. (ECF
No. 13.) The magistrate judge denied the motion and proceeded to a bench trial. (Tr. 3.)
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After the Government rested, Defendant moved for a judgment of acquittal under Federal
Rule of Criminal Procedure 29, arguing that the Government had not corroborated
Defendant’s confession. (Id. at 37.) The magistrate judge denied the motion. He found
that Defendant’s “jogging north, as well as the proximity to the border and not at a port of
entry,” was “independent evidence, circumstantial evidence as it might be,” that Defendant
“had the specific intent to be free from official restraint.” (Id. at 40–41.) He continued:
[I]t was Agent Smith who testified that they were crouched behind the bush
and appeared to be trying to cover themselves, go deeper inside the bush,
trying to get into the brush. The clear inference there is they were trying to
hide from the border patrol agent. It was in a rural area. There’s no indication
that they had come from Jacumba Hot Springs, they were going to Jacumba
Hot Springs, they were in the area, under this bush, for any other reason other
than, in my opinion, trying to be free from official restraint.
(Id. at 41.)
The magistrate judge found Defendant guilty, reasoning that “[t]he proximity of the
fence, the running north and hiding in the bushes indicate that he wanted to come here
illegally, as well as his statements that that was his plan, to come in illegally and go to Los
Angeles to be with his family, and also, to some degree, escape from Mexico because of
the violence and he was afraid to be in Mexico.” (Id. at 42.)
Defendant filed a notice of appeal on January 22, 2020. (ECF No. 20.) He filed his
opening brief on June 29, 2020. (ECF No. 35 [hereinafter Br.].) The Government filed an
opposition on July 13, 2020. 	(ECF No. 36.) 	Defendant filed a reply on July 27, 2020.
(ECF No. 37.)
II.
LEGAL STANDARD
A defendant convicted by a magistrate judge may appeal the judgment to a district
judge. 18 U.S.C. § 3402; Fed. R. Crim. P. 58(g)(2)(B). On such an appeal, the defendant
“is not entitled to a trial de novo”; rather, “[t]he scope of the appeal is the same as in an
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appeal to the court of appeals from a judgment entered by a district judge.” Fed. R. Crim.
P. 58(g)(2)(D). 	The Court therefore reviews the magistrate judge’s legal conclusions de
novo and his factual findings for clear error. See United States v. Powers, 129 F.4th 617,
623 (9th Cir. 2025).
III.
ANALYSIS
Ninth Circuit precedent squarely forecloses several of Defendant’s arguments.
Defendant argues that 8 U.S.C. § 1325(a)(1) violates the non-delegation doctrine and is
unconstitutionally vague. 	The Ninth Circuit has held that “Section 1325(a)(1) does not
violate the non-delegation doctrine, nor is it unconstitutionally vague.” 	United States v.
Melgar-Diaz, 2 F.4th 1263, 1266 (9th Cir. 2021). 	Defendant also argues that his
prosecution on the “Streamline docket” violated equal protection. By “Streamline docket,”
Defendant refers to the fact that prosecutors did not bring his offense through the Central
Violations Bureau (“CVB”). The CVB “is a national center charged with processing U.S.
District Court Violation Notices (tickets) issued and payments received for offenses
committed on federal property . . . .” https://www.cvb.uscourts.gov/ (last visited October
6, 2026). The Ninth Circuit rejected this argument in United States v. Ayala-Bello. 995
F.3d 710 (9th Cir. 2021). 	Ayala-Bello 	also foreclosed Defendant’s argument that
prosecuting him on the “Streamline docket” constituted “selective prosecution or selective
enforcement” because the Southern District of California U.S. Attorney’s Office’s
“disparate treatment of CVB and § 1325 defendants has a discriminatory effect and a
discriminatory 	purpose.” 	(Compare 	Br. 	15 	with 	995 	F.3d 	at 	714 	(“At 	best, 	the
government's policy has a disparate impact on aliens, since only aliens can be charged with
illegal entry. But disparate impact does not prove disparate treatment.”). The Court has
similarly rejected Defendant’s argument that bringing his prosecution on the “Streamline
docket” violated Due Process. United States v. Singh, No. 19-CR-3623 BLM (DMS), 2020
WL 5500232, at *15 (S.D. Cal. Sept. 11, 2020). 	The Court thus turns to Defendant’s
surviving arguments.
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A. Defendant’s Jury Trial Right
Whether a defendant was entitled to a jury trial is a question of law reviewed de
novo. United States v. Stanfill El, 714 F.3d 1150, 1152 (9th Cir. 2013). “It has long been
settled” that the Sixth Amendment’s jury-trial guarantee does not reach petty offenses.
Blanton v. City of N. Las Vegas, Nev., 489 U.S. 538, 541 (1989) (quoting Duncan v.
Louisiana, 391 U.S. 145, 159 (1968)). An offense punishable by a maximum prison term
of six months or less is presumptively petty. Id. at 543. Here, Defendant concedes that the
six-month statutory maximum of § 1325(a)(1) makes it a presumptively petty offense.
However, the presumption is rebuttable. 	“A defendant is entitled to a jury trial in
such circumstances only if he can demonstrate that any additional statutory penalties,
viewed in conjunction with the maximum authorized period of incarceration, are so severe
that they clearly reflect a legislative determination that the offense in question is a ‘serious’
one.” Blanton, 489 U.S. at 543. “In performing this analysis, only penalties resulting from
state action, e.g., those mandated by statute or regulation, should be considered.” Id. at n.8
(emphasis added) (citation omitted). 	Courts should not consider consequences that are
merely “speculative in nature.” See id.
Defendant argues that the impact of a § 1325(a)(1) conviction on his ability to seek
asylum, 	combined 	with 	the 	custodial 	punishment, 	clearly 	reflects 	a 	legislative
determination that § 1325(a)(1) is a serious offense. The Court disagrees. First, Defendant
points to USCIS guidance stating that asylum officers may find that an applicant’s illegal
entry will weigh against a favorable exercise of discretion. (Br. 10.) Whether an asylum
officer may find that one of several factors weighs against a favorable exercise of discretion
is a speculative consequence that is not mandated by statute or regulation. 	See Blanton,
489 U.S. at 543 n.8. Therefore, the Court should not consider it. See id.
Defendant also points to a regulation making asylum unavailable to aliens who
entered outside a lawful port of entry. 	But the asylum bar is not tied to a conviction for
§ 1325(a)(1) (or any other offense); it applies to “to any alien who seeks refuge in the
United States if they entered the country outside a lawful port of entry,” regardless of
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conviction status. (See Br. 10 (citation omitted).) Even a jury acquitting Defendant of the
§ 1325(a)(1) charge would not have lifted the asylum bar. 	(See id.) 	Accordingly, the
asylum bar is not a penalty of conviction that clearly reflects a legislative determination
that § 1325(a)(1) is a serious offense.
Therefore, Defendant was not entitled to a jury trial, and the magistrate judge did
not err by holding a bench trial. The Court has rejected this argument before, as have many
other courts in this District. 	United States v. Singh, No. 19-CR-3623 BLM (DMS), 2020
WL 5500232, at *3 (S.D. Cal. Sept. 11, 2020); United States v. Ramirez-Ortiz, 370 F. Supp.
3d 1151, 1156–57 (S.D. Cal. 2019); United States v. Velasquez-Luna, No. 18-MJ-11463-
WQH, 2019 WL 338947, at *2 (S.D. Cal. Jan. 28, 2019); United States v. Silva-Sosa, No.
18-MJ-23270-KSC, 2019 WL 1470868, at *4 (S.D. Cal. Apr. 3, 2019). The Ninth Circuit
has held similarly in affirming a misdemeanor § 1325 conviction without a jury trial. See
United States v. Rodriguez-Rodriguez, 742 F.2d 1194, 1195 (9th Cir. 1984) (“[T]he
collateral consequences of a misdemeanor conviction [do not] automatically create a
constitutional right to trial by jury.”).
B. Sufficiency of Evidence
As Defendant moved for acquittal at the close of the Government’s evidence, the
Court reviews de novo whether sufficient evidence exists to support a guilty verdict. 	See
United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005) (citation omitted). 	“In
reviewing for sufficiency of the evidence, we assess the evidence in the light most
favorable to the prosecution, determining whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”1 Here, § 1325(a)(1)
requires proof that Defendant was (1) an alien and (2) entered or attempted to enter the
United States at any time or place other than as designated by immigration officers.
1 Id. at 1014–15 (emphasis in original) (citation omitted). 	The Government notes that some
determinations, such as corroboration of Defendant’s confession, may be reviewed for clear error. The
Court need not resolve this issue, as the Government would prevail under any standard of review.
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Defendant concedes that he confessed to both elements. 	However, Defendant’s
confession, standing alone, is not enough to sustain his conviction. 	The “corpus delicti
rule” requires the Government to introduce “some independent corroborating evidence”
supporting the conviction here. United States v. Valdez-Novoa, 780 F.3d 906, 922 (9th Cir.
2015) (citation omitted). The rule “does not require the government to introduce evidence
that would be independently sufficient to convict the defendant in the absence of the
confession.” Id. at 923. The Government need only introduce “some independent evidence
to corroborate the confession”; it is not a “high bar.” 	United States v. Gonzalez-Godinez,
89 F.4th 1205, 1210 (9th Cir. 2024) (emphasis added) (citation omitted). The corroborating
evidence can be circumstantial. Sandez v. United States, 239 F.2d 239, 244 (9th Cir. 1956).
For example, in Gonzalez-Godinez, the Ninth Circuit held that the rule was satisfied where
a defendant convicted of attempted illegal entry under § 1325(a) confessed twice and was
found “either sliding away from a partially deconstructed border fence or hiding in the
nearby brush early in the morning” in a “remote, easy-to-cross area” consistent with the
details of his confession. 89 F.4th at 1210–11 (citing United States v. Garcia-Villegas, 575
F.3d 949, 951 (9th Cir. 2009)).
The corpus delicti rule is satisfied here. Like in Gonzalez-Godinez, Defendant here
“twice admitted” the elements of the crime: once to Agent Smith at the border, then again
to Agent Botello at the station. 	See id. 	And “circumstantial evidence of his behavior at
the border supports his confession.” See id. Defendant ducked down and appeared to hide
behind a bush when agents approached, and Smith found him trying to get deeper into the
brush. 	Further, Smith apprehended Defendant at dusk in a rural area where Smith had
many prior encounters, 50 to 70 yards from the border and 25 miles from the nearest port
of entry. 	(Tr. 16, 22.) 	Finally, agents found Defendant jogging north without papers.
Therefore, Defendant’s behavior also resembles the conduct in other Ninth Circuit
decisions holding the corpus delicti rule satisfied. See United States v. Contreras-Vergara,
No. 24-6033, 2026 WL 323712, at *1 (9th Cir. Feb. 6, 2026) (holding rule satisfied in part
because defendant found in bush at night in remote location where illegal crossings
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common); United States v. Mateo-Martinez, No. 24-257, 2025 WL 1088532, at *1 (9th
Cir. Apr. 11, 2025) (holding rule satisfied in part because defendant found hiding in bush
miles from the nearest port of entry); United States v. Nunez-Beltran, 434 F. App’x 640,
642 (9th Cir. 2011) (holding defendant’s repeated admissions and attempt to cross without
documentation easily satisfied rule).
A rational trier of fact could interpret this extensive circumstantial evidence to mean
that Defendant was an alien attempting to enter illegally with the specific intent to enter
free from official restraint. 	See Garcia-Villegas, 575 F.3d at 951 (holding that mode of
entry evidence alone can be sufficient corroboration for attempted illegal entry); United
States v. Argueta-Rosales, 819 F.3d 1149, 1161 (9th Cir. 2016) (citing United States v.
Quintana–Torres, 235 F.3d 1197, 1200 (9th Cir. 2000)) (“When a person is spotted by
border patrol agents crossing into the United States, away from an official port of entry,
this alone is compelling evidence that the person intends to achieve not only physical
presence in the United States but also freedom from official restraint.”). (Contra Br. 12.)
Defendant argues that he could have been trying to present himself to Border Patrol agents
to claim asylum. But the Court must review the evidence in the light most favorable to the
prosecution, and such an “imagined motive” is neither relevant nor consistent with
Defendant appearing to hide as agents approached. See Garcia-Villegas, 575 F.3d at 951.
Defendant’s alternative theory that he could have been coming from Jacumba Hot Springs
(as agents found him equidistant from the border and Jacumba Hot Springs) fails for similar
reasons.
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IV.
CONCLUSION AND ORDER
For the reasons stated above, Defendant’s appeal is denied and the judgment of
conviction is affirmed.
IT IS SO ORDERED.
Dated: October 13, 2026
________________________________
Hon. Dana M. Sabraw
United States District Judge
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