Justices duck migrant’s double jeopardy case, flag ‘serious constitutional problems’

Justice Sonia Sotomayor said the immigrant faced a “Hobson’s choice” after he was barred from returning to Mexico and ordered to remain in Oklahoma, where he was “found in” and arrested.WASHINGTON (CN) — The Supreme Court on Tuesday declined to hear arguments in a case challenging an immigrant’s second arrest and prosecution for being “found in” the United States despite his probation requiring him to remain in the country.Jesus Herrera-Salazar asked the justices to overturn a second prison term based on his conviction under U.S. Code Section 1326(a), a criminal statute prohibiting the reentry of removed migrants, as a clear violation of his double jeopardy rights after already serving a prison term two years prior.Herrera-Salazar, who immigrated from Mexico, was first deported on Feb. 12, 2015, and knowingly reentered the U.S. afterward. He was apprehended by Border Patrol agents near Brownsville, Texas, where he was charged and later pleaded guilty to one count being unlawfully found after deportation, for which he was sentenced to 15 months in prison and two years of probation.In June 2021, Herrera-Salazar was released, barred from returning to Mexico and ordered to remain within Oklahoma while on probation. On April 1, 2022, Herrera-Salazar was arrested in Heavener, Oklahoma, and charged with one count of the same charge, which the government argued were based on two separate violations of the same law.Herrera-Salazar unsuccessfully moved to dismiss the indictment, was convicted by a jury and sentenced to 21 months in prison with three years of probation. When he appealed to the 10th Circuit challenging the second indictment as a clear violation of double jeopardy, the appeals court rejected the argument and affirmed his sentence.Supreme Court Justice Sonia Sotomayor, joined by Justice Neil Gorsuch, ultimately concurred with the full court’s decision not to review the case but highlighted the “serious constitutional problems that plague the government’s treatment of Herrera-Salazar.”“From the moment he was released from custody after serving his first term of imprisonment, Herrera-Salazar was presented with a Hobson’s choice,” Sotomayor wrote. “In the government’s eyes, whether Herrera-Salazar remained in the Eastern District of Oklahoma or left the United States, he would be breaking the law. While Herrera-Salazar was count in this bind, the government prosecuted and punished him yet again for being ‘found in’ the United States, even though all agree he was forbidden to leave the United States.”Sotomayor, a Barack Obama appointee, wrote that the criminal statute’s “found in” language did not seem to clearly encompass an individual already found by the government and compelled to remain in the country under government supervision, as in Herrera-Salazar’s case. Even if one assumes the statute is that expansive, Herrera-Salazar’s second conviction is “difficult to square” with the double jeopardy clause.The 10th Circuit’s conclusion relied on a reading that the “allowable unit of prosecution” did not require a separate reentry attempt to warrant another violation of the statute and thus each of Herrara-Salazar’s prosecutions and convictions were for a separate offense.“By those lights, with a single unlawful reentry supplying the necessary statutory predicate, a person in Herrera-Salazar’s shoes can be subjected to repeated, limitless ‘found in’ charges without offending the Constitution,” Sotomayor wrote.That reality cannot be squared with the double jeopardy clause, Sotomayor said, noting the right is not “such a fragile guarantee” that prosecutors can simply divide a single crime into several by timing and location.“Yet that is just what the government did here,” Sotomayor wrote. “Herrera-Salazar was convicted of a ‘crime which was continuous, extending over the whole period’ he was present in the United States after his previous removal and reentry. That continuous crime plainly could not have concluded until the government allowed Herrera-Salazar to leave the country.”The government’s theory supporting its defense relied on the idea Herrera-Salazar could be charged twice because the charges focused on different parts of his compelled continuous presence in the country, Sotomayor said.Adopting such a theory would mean defendants could be indicted for every week of a continuous crime, rather than a single charge for the entirety of the crime, Sotomayor warned. In Herrera-Salazar’s case, he could have faced charges for each day he was “found in” prison while serving his sentence, she added.She urged federal courts to avoid such a “constitutional absurdity” should any defendant face similar circumstances and “give the double jeopardy clause its full weight and meaning.”Herrera-Salazar highlighted how the 10th Circuit’s decision created a split among other circuit courts, which have found that the offense is completed when a defendant is “found” in the United States, meaning when they are arrested. The 10th Circuit’s decision directly conflicts with rulings by the Fifth, Seventh and Ninth Circuits, which have deemed the charge as a continual offense rather than a continuing one.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads