State of California et al v. Trump et al

Filing 183

REPLY (re 176 MOTION for Partial Summary Judgment ) filed byState of California, State of New Mexico. (Attachments: # 1 Declaration, # 2 Request for Judicial Notice)(Sherman, Lee) (Filed on 6/24/2019)

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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4:19-cv-00872-HSG

STATE OF CALIFORNIA et al.;
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Plaintiffs,
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v.

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DECLARATION OF MICHAEL
CAYABAN IN SUPPORT OF PLAINTIFF
DONALD J. TRUMP, in his official capacity STATES OF CALIFORNIA AND NEW
as President of the United States of America et MEXICO’S REPLY IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
al.;
JUDGMENT REGARDING SECTIONS
Defendants. 284, 8005, AND 9002, AND IN
OPPOSITION TO DEFENDANTS’
MOTION FOR PARTIAL SUMMARY
JUDGMENT

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Declaration of Michael Cayaban (4:19-cv-00872-HSG)

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I, Michael Cayaban, declare as follows:

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1.

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I have personal knowledge of the facts set forth in this declaration. If called as a

witness, I could and would testify competently to the matters set forth below.
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I am employed by the California Department of Justice, Office of the Attorney

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General, and currently serve as a Supervising Deputy Attorney General within the Office’s Public

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Rights Division, Natural Resources Law Section. I am a licensed member of good standing with

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the California State Bar and represent the State of California in the above-captioned matter.

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3.

In my role as one of the attorneys representing the State of California in this

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matter, I reviewed the declarations of Millard F. LeMaster filed in support of Defendants’ motion

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for partial summary judgment in which Mr. LeMaster summarized drug seizure totals for several

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border patrol sectors during the current fiscal year. ECF No. 182, 182-8, 182-9. I also reviewed

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publicly available information concerning the United States Border Patrol’s El Paso and El

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Centro Sectors and public statements by the United States Department of Homeland Security

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(DHS) concerning drug seizure events that have occurred within those two border patrol sectors,

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as described below.

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4.

The El Centro Sector is located within several counties of California, with Border

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Patrol Offices located in the cities of El Centro, Calexico and Indio, California. The El Centro

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Sector covers a 70-mile stretch of the international border and the El Centro’s geographic area of

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responsibility encompasses more than 107,000 square miles. See, Exhibit 10 to Plaintiffs’

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Supplemental Request for Judicial Notice (Supp. RJN), Government Accountability Office

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Report 17-331, p. 49.

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5.

Mr. LeMaster declares that from the start of Fiscal Year 2019 to the present, there

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have been 107 events within El Centro Sector resulting in drug seizures by the Border Patrol.

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However, the declaration does not state where those seizures occurred within the El Centro

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Sector’s area of responsibility. ECF No. 182-9, ¶ 8.

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6.

DHS, U.S. Customs and Border Protection publishes “media releases” on its

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website at https://www.cbp.gov/newsroom/media-releases/all. The website contains search

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features that allow members of the public to search for media releases by date, subject matter
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Declaration of Michael Cayaban (4:19-cv-00872-HSG)

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and/or location.

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7.

On June 23, 2019, I utilized the search features available at this website to search

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for information concerning the drug seizures by the Border Patrol within the El Centro Sector

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during the period of October 1, 2018 through June 23, 2019. Using search query terms such as

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“drug,” “seize,” and “centro,” I found several media releases concerning drug events within the El

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Centro Sector during the relevant time-period. The majority of the drug events described in these

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media releases, however, pertained to drug seizures made by U.S. Customs and Border

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Protections officers at the official ports of entry, not seizures by Border Patrol agents in other

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areas within the El Centro Sector.

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8.

With respect to Border Patrol agent seizures, I found a total of 18 media releases

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published on the DHS website between October 1, 2018 and June 23, 2019, that described 21

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drug seizures by Border Patrol agents within El Centro Sector in areas other than the official ports

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of entry. These media releases are attached as Exhibits 11 through 28 to Plaintiffs’ Supp. RJN.

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9.

Excluding media releases that pertain to drug seizures by Customs Officers at the

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ports of entry (supra, ¶ 8), Supp. RJN Exhibits 11 through 28 were the only media releases

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available on DHS’s website that describe drug seizures that occurred within the above stated

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time-period within El Centro Sector.

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10.

Supp. RJN Exhibits 11 through 28 provide information concerning the types of

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drugs seized, the weight and approximate street value of the drugs seized, and the location of the

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event. In total, the events described Supp. RJN Exhibits 11 through 28 resulted in the seizure of

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approximately 829.6 pounds of methamphetamine, 18.33 pounds of fentanyl, 11.12 pounds of

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heroin, and 13.12 pounds of cocaine. These amounts account for approximately 69% of the

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methamphetamine, 61% of the fentanyl, 37% of the heroin, and 87% of the cocaine that,

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according to Mr. LeMaster’s declaration, ECF No. 182-9,¶ 8, were seized by Border Patrol agents

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in the El Centro Sector so far this fiscal year.

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11.

Of the 21 drug events described in the press releases, only two describe events

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occurring near the international border. In one of the incidents, packages containing

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methamphetamine were thrown over the international border fence into the United States near the
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Declaration of Michael Cayaban (4:19-cv-00872-HSG)

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port of entry in downtown Calexico. Supp. RJN Ex. 24. The other press release describes an

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incident in which Border Patrol agents observed a lightweight aircraft flying over the

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international border landing in an agriculture field. Supp. RJN Ex. 22. Both events resulted in

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drug seizures and the arrest of suspects that received the packages. Id.

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12.

In another incident described in a media release, Border Patrol agents seized a

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small amount of drugs during the execution of a warrant at a home in the City of El Centro, which

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is located several miles from the international border. Supp. RJN Ex. 26.

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The remaining media releases describe 18 separate events in which the Border

Patrol seized drugs at vehicle inspection checkpoints on Highways 86 and 111. Supp. RJN Ex.

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11-21, 23, 25, 27-28. The inspection checkpoints are permanent facilities located near the Salton

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Sea, approximately 30-40 miles north of the international border. Highways 86 and 111 provide

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the most direct routes of travel north from the Calexico port of entry to Riverside, San Bernardino

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and Los Angeles counties.

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The site for El Centro Project 1 is the southwestern portion of the El Centro

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Sector, several miles west of the city of Calexico. DHS’ media releases, which describe several

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drug events and seizures on highways that lead directly from the Calexico port of entry, do not

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describe any drug events or drug smuggling activities in the vicinity of El Centro Project 1.

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15.

Similarly, the declaration of Mr. LeMaster does not identify any drug events or

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seizures occurring in the southwestern portion of the El Centro Sector nor describe any drug

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smuggling activity in the vicinity of the project area.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct. Executed on June 24, 2019, at San Diego, California.

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/s/ Michael Cayaban
MICHAEL CAYABAN

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Declaration of Michael Cayaban (4:19-cv-00872-HSG)