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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1 2 3 4 5 6 7 8 9 10 11 12 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: (213) 269-6404 Fax: (213) 897-7605 E-mail: Attorneys for Plaintiff State of California 13 14 IN THE UNITED STATES DISTRICT COURT 15 FOR THE NORTHERN DISTRICT OF CALIFORNIA 16 OAKLAND DIVISION 17 18 4:19-cv-00872-HSG STATE OF CALIFORNIA et al.; 19 Plaintiffs, 20 v. 21 22 23 24 25 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 26 27 28 Declaration of Michael Cayaban (4:19-cv-00872-HSG) 1 I, Michael Cayaban, declare as follows: 2 1. 3 4 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. 2. I am employed by the California Department of Justice, Office of the Attorney 5 General, and currently serve as a Supervising Deputy Attorney General within the Office’s Public 6 Rights Division, Natural Resources Law Section. I am a licensed member of good standing with 7 the California State Bar and represent the State of California in the above-captioned matter. 8 3. In my role as one of the attorneys representing the State of California in this 9 matter, I reviewed the declarations of Millard F. LeMaster filed in support of Defendants’ motion 10 for partial summary judgment in which Mr. LeMaster summarized drug seizure totals for several 11 border patrol sectors during the current fiscal year. ECF No. 182, 182-8, 182-9. I also reviewed 12 publicly available information concerning the United States Border Patrol’s El Paso and El 13 Centro Sectors and public statements by the United States Department of Homeland Security 14 (DHS) concerning drug seizure events that have occurred within those two border patrol sectors, 15 as described below. 16 4. The El Centro Sector is located within several counties of California, with Border 17 Patrol Offices located in the cities of El Centro, Calexico and Indio, California. The El Centro 18 Sector covers a 70-mile stretch of the international border and the El Centro’s geographic area of 19 responsibility encompasses more than 107,000 square miles. See, Exhibit 10 to Plaintiffs’ 20 Supplemental Request for Judicial Notice (Supp. RJN), Government Accountability Office 21 Report 17-331, p. 49. 22 5. Mr. LeMaster declares that from the start of Fiscal Year 2019 to the present, there 23 have been 107 events within El Centro Sector resulting in drug seizures by the Border Patrol. 24 However, the declaration does not state where those seizures occurred within the El Centro 25 Sector’s area of responsibility. ECF No. 182-9, ¶ 8. 26 6. DHS, U.S. Customs and Border Protection publishes “media releases” on its 27 website at The website contains search 28 features that allow members of the public to search for media releases by date, subject matter 1 Declaration of Michael Cayaban (4:19-cv-00872-HSG) 1 and/or location. 2 7. On June 23, 2019, I utilized the search features available at this website to search 3 for information concerning the drug seizures by the Border Patrol within the El Centro Sector 4 during the period of October 1, 2018 through June 23, 2019. Using search query terms such as 5 “drug,” “seize,” and “centro,” I found several media releases concerning drug events within the El 6 Centro Sector during the relevant time-period. The majority of the drug events described in these 7 media releases, however, pertained to drug seizures made by U.S. Customs and Border 8 Protections officers at the official ports of entry, not seizures by Border Patrol agents in other 9 areas within the El Centro Sector. 10 8. With respect to Border Patrol agent seizures, I found a total of 18 media releases 11 published on the DHS website between October 1, 2018 and June 23, 2019, that described 21 12 drug seizures by Border Patrol agents within El Centro Sector in areas other than the official ports 13 of entry. These media releases are attached as Exhibits 11 through 28 to Plaintiffs’ Supp. RJN. 14 9. Excluding media releases that pertain to drug seizures by Customs Officers at the 15 ports of entry (supra, ¶ 8), Supp. RJN Exhibits 11 through 28 were the only media releases 16 available on DHS’s website that describe drug seizures that occurred within the above stated 17 time-period within El Centro Sector. 18 10. Supp. RJN Exhibits 11 through 28 provide information concerning the types of 19 drugs seized, the weight and approximate street value of the drugs seized, and the location of the 20 event. In total, the events described Supp. RJN Exhibits 11 through 28 resulted in the seizure of 21 approximately 829.6 pounds of methamphetamine, 18.33 pounds of fentanyl, 11.12 pounds of 22 heroin, and 13.12 pounds of cocaine. These amounts account for approximately 69% of the 23 methamphetamine, 61% of the fentanyl, 37% of the heroin, and 87% of the cocaine that, 24 according to Mr. LeMaster’s declaration, ECF No. 182-9,¶ 8, were seized by Border Patrol agents 25 in the El Centro Sector so far this fiscal year. 26 11. Of the 21 drug events described in the press releases, only two describe events 27 occurring near the international border. In one of the incidents, packages containing 28 methamphetamine were thrown over the international border fence into the United States near the 2 Declaration of Michael Cayaban (4:19-cv-00872-HSG) 1 port of entry in downtown Calexico. Supp. RJN Ex. 24. The other press release describes an 2 incident in which Border Patrol agents observed a lightweight aircraft flying over the 3 international border landing in an agriculture field. Supp. RJN Ex. 22. Both events resulted in 4 drug seizures and the arrest of suspects that received the packages. Id. 5 12. In another incident described in a media release, Border Patrol agents seized a 6 small amount of drugs during the execution of a warrant at a home in the City of El Centro, which 7 is located several miles from the international border. Supp. RJN Ex. 26. 8 9 13. 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. 10 11-21, 23, 25, 27-28. The inspection checkpoints are permanent facilities located near the Salton 11 Sea, approximately 30-40 miles north of the international border. Highways 86 and 111 provide 12 the most direct routes of travel north from the Calexico port of entry to Riverside, San Bernardino 13 and Los Angeles counties. 14 14. The site for El Centro Project 1 is the southwestern portion of the El Centro 15 Sector, several miles west of the city of Calexico. DHS’ media releases, which describe several 16 drug events and seizures on highways that lead directly from the Calexico port of entry, do not 17 describe any drug events or drug smuggling activities in the vicinity of El Centro Project 1. 18 15. Similarly, the declaration of Mr. LeMaster does not identify any drug events or 19 seizures occurring in the southwestern portion of the El Centro Sector nor describe any drug 20 smuggling activity in the vicinity of the project area. 21 22 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. 23 /s/ Michael Cayaban MICHAEL CAYABAN 24 25 26 27 28 3 Declaration of Michael Cayaban (4:19-cv-00872-HSG)

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