United States v. Cruz , 189 F. App'x 725 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-4280
v. District of Utah
RAM ON ENRIQUE CRUZ, also (D.C. No. 2:04-CR -669 TS)
know n as Santiago Avila-Gamez, also
known as George Ortiz, also known as
Enrique Ortiz, also known as Jorge
Ortiz,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
M r. Ramon Enrique Cruz was charged with illegal re-entry of a deported
alien under 8 U.S.C. § 1326. He appeals his conviction on two grounds: alleged
errors in jury instruction No. 19 and admission of testimony by an expert witness
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
m ade during his trial. We have jurisdiction under 28 U.S.C. § 1291, and we
A FFIR M .
I. Factual and Procedural Background
M r. Cruz was arrested for entering the United States after he had been
illegally deported. On September 29, 2004, he w as charged with illegal re-entry
of a deported alien under 8 U.S.C. § 1326. The indictment charged, “[o]n or
about September 8, 2004, . . . Ramon Enrique Cruz, . . . an alien who on or about
June 14, 2000, was excluded, removed and deported from the United States, was
knowingly present and found in the United States.” R. Doc. 1 at 1-2.
Both parties submitted proposed stipulated jury instructions. M r. Cruz
proposed the final paragraph of Jury Instruction No. 5, which set forth the second
element of the offence as follows: “[t]he indictment charges that the defendant
was removed and deported on or about June 14, 2000 . . . You must be unanimous
in your decision that the defendant was removed or deported on or about that
date.” Appellant’s Br. at 19. On July 13, 2005, the government filed a M otion to
Strike Surplusage and Amend Jury Instructions or Alternatively Amend Jury
Instructions alone. The government requested that an amendment to the
indictment, striking the phrase “on or about June 14, 2000” and replacing it with
the word “previously.” Appellant’s Br. at 8. The government also requested that
the court amend Instruction No. 5 by striking the final paragraph and adding, “If
you find that the defendant was deported from the United States at any time prior
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to September 8, 2004, the element is met.” Appellant’s Br. at 9. M r. Cruz
objected to this proposed amendment.
The district court granted the government’s motion in part and denied it in
part. The court denied the government’s proposed changes to the indictment.
The court amended the disputed jury instruction to read: “If you find that the
defendant was deported from the United States at any time prior to September 8,
2004, the element is met.” R. Doc. 43 at 2. This instruction was renumbered as
No. 19.
During trial, the government’s expert witness, Barbara Crane, who
performed the fingerprint identification for the Utah Bureau of Criminal
Identification (“BCI”), testified that she had matched M r. Cruz’s fingerprints w ith
a number of critical deportation records. The training by the FBI requires at least
ten points of congruency to establish a fingerprint identification match. The
training that M s. Crane received from BCI requires at least seven or eight points
of congruency to make a fingerprint match. On one of the deportation records,
the W arrant of Deportation of June 14, 2000, the fingerprint identification match
was made with seven points of congruency. The fingerprint identification
matches with regard to the Administrative Removal Order of September 10, 1999,
and the Record of Sworn Statement from September 8, 2004, were made with
eight points of congruency.
M r. Cruz was found guilty and sentenced to 21 months in prison.
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M r. Cruz appeals the following two issues: (1) that the trial court erred
when it changed the jury instructions to read, “defendant was deported at any time
prior to September 8, 2004” rather than, “defendant was excluded from the United
States on or about June 14, 2000;” and (2) the trial court erred in permitting the
government’s fingerprint expert to testify that the fingerprints matched when
fewer points of congruence were used than required by the FBI.
II. Jury Instructions
M r. Cruz argues that the Fifth and Sixth Amendment were violated by the
modified jury instruction No. 19. He contends that the Fifth Amendment was
violated because the court expanded the offense that was charged in the
indictment by changing the date of removal from “on or about June 14, 2000” to
“any time prior to September 8, 2004.” A ppellant’s Br. 14. According to M r.
Cruz, the change in the jury instructions “expanded the material element of the
date [he] was removed and deported,” because the indictment charges M r. Cruz
with a different date than the jury instructions. Appellant’s Br. 16. He also
contends that the Sixth Amendment was violated because he did not have notice
of the charges against him.
In order to establish a constitutional violation, M r. Cruz must show that the
jury instructions were a constructive amendment to the indictment because they
“modify an essential element of the [charged] offense or raise the possibility the
defendant was convicted of an offense other than that charged in the indictment.”
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United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002). W e find that
M r. Cruz failed to show that the exact date of deportation is an essential element
of the crime. An alien is guilty of an illegal reentry if he “has been . . . deported .
. . and thereafter . . . is at any time found in, the United States.” 8 U.S.C. §
1326(a). To prove an unlawful entry, the government therefore must prove that
the defendant is (1) an alien, (2) who was previously deported, (3) was thereafter
found in the United States, and (4) did not have permission from the Attorney
General to re-enter. United States v. Anaya, 117 F.3d 447, 449 (10th Cir. 1997).
The language of 8 U.S.C. § 1326(a) requires only that the defendant have been
found at any time in the United States after being deported. M r. Cruz cites no
authority to support his contention that the date of the deportation is essential to
the offense, and we see no reason to depart from the text of the statute. W e
affirm the district court on this issue.
III. Expert Testimony
M r. Cruz argues M s. Crane’s fingerprint identification evidence was not
reliable, and therefore should not have been admitted. M r. Cruz failed to object
to M s. Crane’s testimony at trial. The issue is therefore reviewed for plain error.
See United States v. Thody, 978 F.2d 625, 631 (10th Cir. 1992). Reversal is
warranted if there is (1) an error; (2) that is plain; (3) that affects substantial
rights; and (4) that seriously affects the “fairness, integrity or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993).
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According to Fed. R. Evid. 702, “a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise, if (1) the testimony is based on sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the facts of the
case.” Fed. R. Evid. 702. M r. Cruz argues that because M s. Crane followed BCI
standards of matching only seven points of congruency rather than the FBI
standard of matching at least ten points, the evidence is not reliable. He also
argues that BCI has failed to publish any documentation or do any scientific
research that seven or eight points are sufficient to make a fingerprint match.
M s. Crane stated on direct examination that she has been doing fingerprint
identification for 24 years, has compared 3,336,000 separate impressions, and has
never incorrectly identified a fingerprint match. During trial, the critical exhibits
15-C and 4-A, showing the W arrant of Deportation of June 14, 2000, and
Fingerprint Card of September 17, 2004, displayed the fingerprint identification
being made with seven points of congruence. However, M s. Crane stated that
there were three more points of congruence that were not listed on the chart,
making in total, ten points of congruence, meeting the FBI standard. In light of
M s. Cranes qualifications and her testimony that there were at least ten points of
congruence, the admission of her testimony was not plain error.
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IV. Conclusion
The judgment of the United States District Court for the District of Utah
is AFFIRM ED.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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