United States v. Wilberth Garcia , 887 F.3d 205 ( 2018 )

Case: 17-10862 Document: 00514419262 Page: 1 Date Filed: 04/06/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10862
Fifth Circuit
FILED
Summary Calendar April 6, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
WILBERTH MEDINA GARCIA,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:
A jury convicted Wilberth Medina Garcia of illegal reentry. Garcia now
appeals his conviction, arguing that the district court erred by (1) permitting
the government to bolster the credibility of its declarants improperly,
(2) overruling Garcia’s hearsay and Confrontation Clause objections to the
government’s evidence, and (3) denying Garcia’s motion for a new trial
predicated on the government’s putative Brady violation. Finding the district
court’s rulings correct, we AFFIRM Garcia’s conviction.
BACKGROUND
Garcia, a Mexican citizen, entered the United States without inspection
in 2002. On February 4, 2015, in Huntsville, Texas, an officer with the
Case: 17-10862 Document: 00514419262 Page: 2 Date Filed: 04/06/2018
No. 17-10862
Department of Homeland Security’s Immigration and Customs Enforcement
served Garcia with a Notice of Intent to Issue a Final Administrative Removal
Order. This document stated that Garcia was deportable because of his
conviction for an “aggravated felony.” Garcia indicated on the form that he did
not contest the allegations, would not apply for deferral of removal, and wished
to be removed to Mexico. On February 9, an immigration official served a Final
Administrative Removal Order on Garcia. This stated that Garcia’s
deportability was established by clear and convincing evidence and that he was
to be removed from the United States to Mexico.
The same day, a warrant of removal was recorded, documenting Garcia’s
removal on foot through the Laredo, Texas port of entry. The warrant of
removal states that it was filled out by the “immigration officer executing the
warrant,” and it contains a picture of Garcia, his right index fingerprint, and
his signature. The warrant of removal also certifies that an immigration
officer witnessed Garcia’s removal to Mexico, and the form contains the
witness’s signature. The document also contains a section to be completed if
an alien’s departure is not actually witnessed, but this section is blank.
Finally, the document contains a space for the signature of an immigration
officer who subsequently “[v]erified” the departure. This space contains a
signature with a line through it.
In August 2016, Garcia was booked into the Dallas County Jail. The
following day, an ICE officer placed an immigration detainer on Garcia, and he
was transferred into ICE’s custody. On October 11, 2016, Garcia met with ICE
Deportation Officer Frederick Sims. During this interview, Garcia admitted
that he had illegally entered the United States around May 2016 near El Paso,
Texas. Officer Sims checked immigration databases and determined that
Garcia had not applied to be in the United States legally.
2
Case: 17-10862 Document: 00514419262 Page: 3 Date Filed: 04/06/2018
No. 17-10862
Officer Sims presented Garcia with a Miranda waiver. This waiver
recited the Miranda rights in Spanish and is typed out in the first person to
indicate the signer’s intent to waive those protections. The typed form lists the
date of waiver as October 11, 2016. The form also contains two signatures of
witnesses to the waiver. Officer Sims signed the form, and listed the date as
October 17. Another officer signed the form and listed the date as October 19.
At trial, Officer Sims testified that Garcia signed the waiver on October 17 and
not on October 11.
A federal grand jury indicted Garcia for illegally reentering the United
States in violation of 8 U.S.C. § 1326, and Garcia proceeded to trial. At trial,
Officer Sims testified to his conversations with Garcia in October 2016 and
stated that, based on his own review of ICE databases, Garcia had not sought
permission to return to the United States. Officer Noel Lee, a second
deportation officer with ten years of experience, testified further about removal
procedures. Officer Lee explained the documents pertaining to Garcia’s prior
removal proceedings and the quality checks used to ensure that those
documents contained accurate information. The district court admitted these
documents into evidence over Garcia’s Confrontation Clause and hearsay
objections. A forensic expert also testified that the fingerprint on Garcia’s
warrant of removal was authentic. Garcia produced no evidence and called no
witnesses to testify that he had never been removed or that he had applied for
readmission to the United States. Garcia also objected to certain statements
the prosecutor made during closing arguments, but the district court overruled
these objections.
After the jury convicted Garcia of the illegal reentry, he filed a motion
for a new trial, arguing that his Brady rights were violated by the government’s
failure to clarify the timing of his Miranda waiver. The district court denied
3
Case: 17-10862 Document: 00514419262 Page: 4 Date Filed: 04/06/2018
No. 17-10862
Garcia’s motion, and Garcia was ultimately sentenced to 22 months’
imprisonment. He timely appealed.
STANDARDS OF REVIEW
The propriety of a prosecutor’s statements is reviewed de novo, but we
review for an abuse of discretion whether those statements affected the
defendant’s substantial rights. See United States v. McCann, 613 F.3d 486,
494 (5th Cir. 2010). We review an alleged Brady violation de novo. See United
States v. Martin, 431 F.3d 846, 850 (5th Cir. 2005). Whether the admission of
objected-to evidence violates the hearsay doctrine is a mixed question: legal
issues are reviewed de novo; factual determinations are reviewed for clear
error. See United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). Alleged
Confrontation Clause violations are reviewed de novo and subject to harmless
error analysis. See id.
DISCUSSION
I. Prosecutorial Misconduct Claim
Garcia argues that the prosecutor’s closing statements impermissibly
bolstered the credibility of its declarants. Garcia objects to four comments:
1. [T]here’s no suggestion that any of the hundreds of thousands of
people that work for the Department of Homeland Security and
ICE would want to make something up about this one defendant.
What motivation do they have? These are hardworking people—
2. These are hardworking people who go in to work every day and
who do their job . . . everybody in this case has done their job.
3. And it’s no different, as we talked about in testimony, when after
September 11th, this department was created. . . . We don’t require
that the pilot then come through the plane, or the flight attendant,
and recheck the boarding pass again, rescan everybody for any
weapons, because we rely on the system in our country that people
do their job because they care and that’s what they do.
4. So now we’d ask, Ladies and Gentlemen, that you do the final part
of your job, which is to go back and deliberate, and we ask that you
find him guilty as the evidence shows he is.
4
Case: 17-10862 Document: 00514419262 Page: 5 Date Filed: 04/06/2018
No. 17-10862
Even if we find these statements to be improper, that does not conclude the
inquiry: “Overturning a jury verdict for prosecutorial misconduct is
appropriate only when, ‘taken as a whole in the context of the entire case,’ the
prosecutor’s comments ‘prejudicially affect[ed the] substantial rights of the
defendant.’” United States v. Delgado, 672 F.3d 320, 337 (5th Cir. 2012) (en
banc) (quoting United States v. Risi, 603 F.2d 1193, 1196 (5th Cir. 1979)). This
court determines whether substantial rights were affected by assessing three
factors: “(1) the magnitude of the prejudicial effect of the prosecutor’s remarks,
(2) the efficacy of any cautionary instruction by the judge, and (3) the strength
of the evidence supporting the conviction.” Id. (quoting United States v. Wyly,
193 F.3d 289, 299 (5th Cir.1999)). Garcia has failed to show reversible error
under this standard. 1
Determining the propriety of the prosecutor’s statements requires
examining the context in which they were made. See United States v.
Thompson, 482 F.3d 781, 785 (5th Cir. 2007). In this case, the prosecutor
began her initial closing arguments by telling the jury that their “job is not yet
finished,” and stressing the importance of their duty “to render a decision
based on the law and the evidence.” The prosecutor then reviewed the evidence
substantiating each element of an illegal reentry, concluding that the only
disputed issue was whether Garcia actually “crossed that bridge” and left the
United States in 2015 as the warrant of removal attests. In context, then, the
challenged remarks principally involve the prosecutor’s defense of the warrant
of removal’s credibility.
1 The government claims that Garcia’s objection during trial did not preserve his
challenges to Statements Three and Four, thus requiring us to apply plain error review.
Because Garcia’s arguments fail under the less rigorous standard, we need not resolve this
question.
5
Case: 17-10862 Document: 00514419262 Page: 6 Date Filed: 04/06/2018
No. 17-10862
Garcia argues that Statement One improperly suggests that acquittal
would require belief in a vast government conspiracy. This court has deemed
such statements improper. United States v. Gracia, 522 F.3d 597, 601-02 (5th
Cir. 2008); United States v. Goff, 847 F.2d 149, 164 (5th Cir. 1988). But here,
the prosecutor’s statement that there is no evidence of a motive for ICE
employees “to make something up about” Garcia does not suggest that
acquittal would require a government conspiracy. Compare Goff, 847 F.2d at
163 (error where prosecutor stated that acquittal required the jury “to believe
that there is a conspiracy but the conspiracy started apparently in Las Vegas
and involves the Internal Revenue Service, the Drug Enforcement
Administration, the F.B.I., the Texas Department of Public Safety, the United
States Attorneys Office, . . and maybe even a judge or two”); Gracia, 522 F.3d
at 600 (error for prosecutor to state that acquittal required believing that police
“got out of bed . . .[and decided] that [they] were going to start [a] conspiracy
to wrongfully convict” the defendant).
Statement One above is not evoking a vast government conspiracy but is
instead rebutting the defense’s implication that whoever signed the warrant of
removal may have falsified the record. Indeed, we have held that, although a
prosecutor “cannot express a personal opinion on the credibility of witnesses”
it is permissible to “argue fair inferences from the evidence that a witness has
no motive to lie.” Gracia, 522 F.3d at 601. Here, the prosecutor did not voice
her personal opinion. See United States v. Smith, 814 F.3d 268, 274 (5th Cir.
2016). Instead, she “argue[d] fair inferences from the evidence” when she
stated that there was “no suggestion” of a motive to fabricate.
During trial, moreover, Garcia had stressed that the “ethics of the
individual who prepared” the warrant of removal were unknown. Garcia’s
closing statements returned to this issue: “How can we verify or know if the
person who supposedly witnessed the departure . . . wasn’t fired a month later
6
Case: 17-10862 Document: 00514419262 Page: 7 Date Filed: 04/06/2018
No. 17-10862
for falsifying documents?” Given Garcia’s emphasis on this point throughout
trial, the prosecutor’s rhetorical question in Statement One was a permissible
response.
The prosecutor also did not act improperly by referring to DHS
employees as “hardworking” in Statements One and Two. This description was
a reasonable inference from testimony by Officers Sims and Lee, much of which
detailed the extensive processes and quality controls involved in alien removal.
To the extent references to government employees as “hardworking” is
rhetorical, this court has acknowledged that a prosecutor’s “closing argument
is just that—argument—we allow prosecutors to use expressive language and
‘a bit of oratory and hyperbole.’” United States v. Boyd, 773 F.3d 637, 645 (5th
Cir. 2014) (quoting United States v. Thompson, 482 F.3d 781, 786 (5th Cir.
2007).
Turning to Statements Two and Three, Garcia argues that the
prosecutor improperly bolstered the credibility of the ICE documents by
emphasizing that ICE officials had “done their job.” We have held that it is
improper for a prosecutor “to tell the jury that law enforcement witnesses
should be believed simply because they were doing their job.” United States v.
Gracia, 522 F.3d at 601. In other words, a prosecutor should not tell a jury to
credit witnesses simply because they are government agents. In Gracia, the
prosecutor violated this rule by saying, “I’m going to ask you to respect their
efforts as law enforcement officials and to believe the testimony that they
offered.” Id. at 600.
But here the prosecutor’s statements are not an appeal to faith in
government generally or law enforcement in particular. The crux of the
prosecutor’s remarks is that ICE records are the product of employees’ routine
record-making. Just after Statement Two, the prosecutor emphasized that “as
a result of doing their job and to document what they’ve done, [the employees]
7
Case: 17-10862 Document: 00514419262 Page: 8 Date Filed: 04/06/2018
No. 17-10862
keep records.” Again, the point is not that the jurors should trust the
government but that it is reasonable to “rely on the system in our country that
people do their job because they care.”
Garcia also challenges Statement Three on the grounds that the
reference to September 11th constitutes an emotional appeal and that the TSA
analogy improperly invokes the aegis of the government. In context, the
prosecutor’s mention of September 11th is reasonable given her analogy to TSA
security. The TSA analogy, for its part, details why a warrant of removal could
be considered trustworthy without the testimony of the witness to the removal.
When getting on a plane, the prosecutor explained, individuals do not need to
show their proof of identification “because on that boarding pass is some type
of notification or initial or circle [made by a TSA agent] to show that they have
verified that you are one and the same person listed on that boarding pass.”
The signature on the warrant of removal, the prosecutor implied, is similarly
significant because it indicates that a quality-control measure has been
completed. This is not an improper comparison.
Garcia’s challenge to Statement Four mischaracterizes it, and
incorrectly suggests that the prosecutor told the jury they had a civic duty to
convict. To the contrary, the challenged statement itself properly defines the
jury’s job, “which is to go back and deliberate.” This statement refers back to
the prosecutor’s opening remarks in which she enjoined the jurors to “render a
decision based on the law and the evidence.”
In sum, the challenged statements were not improper. Moreover, they
certainly did not affect Garcia’s substantial rights. That any prejudice from
the statements was minimal is corroborated by the district court’s decision to
overrule Garcia’s objection. See United States v. Bennett, 874 F.3d 236, 246
(5th Cir. 2017) (“We give great weight to the trial court’s assessment of the
prejudicial effect of the evidence.”) (citations omitted). Critically, the
8
Case: 17-10862 Document: 00514419262 Page: 9 Date Filed: 04/06/2018
No. 17-10862
government’s case against Garcia was strong, with no countervailing evidence.
Garcia’s only defense was that it was inadequate for the government to rely on
ICE records to prove certain elements of the illegal reentry. This court has
held that the government “must be permitted to rely on such records.” United
States v. Quezada, 754 F.2d 1190, 1195 (5th Cir. 1985).
Garcia points out that the jury, during deliberations, returned a question
about why one of the signatures on Garcia’s warrant of removal had a line
through it. According to Garcia, this demonstrates that the jury was suspicious
of the warrant’s validity and the prosecutor’s statements may have tipped the
scales in favor of conviction. But even absent the warrant of removal itself, the
other ICE records—e.g. the Notice of Intent to Issue a Final Administrative
Removal Order and the Final Administrative Removal Order—provide ample
evidence that Garcia was removed in 2015, as does Garcia’s admission that he
entered the country illegally in May 2016. Any prejudice did not affect Garcia’s
substantial rights.
II. Hearsay and Confrontation Clause Claims
At trial, Garcia objected to the admission of his ICE records on hearsay
and Confrontation Clause grounds. The district court overruled these
objections. On appeal, Garcia challenges only the admission of the warrant of
removal. Under consistent circuit precedent, the warrant of removal was
properly admitted under Federal Rule of Evidence 803(8)—the public records
exception. Likewise, contrary to Garcia’s contention, recent Supreme Court
decisions on the scope of the Confrontation Clause have not abrogated this
court’s holding that warrants of removal are nontestimonial.
In United States v. Quezada, this court held that a warrant of
deportation was properly admitted under the public records exception to the
hearsay doctrine. 754 F.2d 1190, 1194 (5th Cir. 1985); Fed. R. Evid. 803(8).
Garcia argues that his warrant of removal should not fall under this exception
9
Case: 17-10862 Document: 00514419262 Page: 10 Date Filed: 04/06/2018
No. 17-10862
because “the source of information or other circumstances indicate a lack of
trustworthiness.” Fed. R. Evid. (803)(8)(B). To prove the document’s “lack of
trustworthiness,” Garcia points to the line drawn through the name of the
individual who verified the departure.
Garcia’s untrustworthiness argument relies on United States v.
Arledge, 553 F.3d 881 (5th Cir. 2008). In Arledge, the court held that a district
court did not abuse its discretion by excluding an alleged business record
where the document’s proponent could not provide a witness to testify to the
document’s purpose, the document contained handwritten notes from multiple
individuals, and some information had been scratched out. See Arledge,
553 F.3d at 892-93. In this case, Officer Sims testified to the warrant of
removal’s purpose and the procedures used to create it. Likewise, the presence
of Garcia’s photograph and fingerprints on the document serve as further
assurance of its trustworthiness. The district court properly admitted the
record.
Garcia also argues that the admission of his warrant of removal violated
the Confrontation Clause of the Sixth Amendment, which guarantees a
criminal defendant the right “to be confronted with witnesses against him.”
U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held
that the prosecution violates this clause when it introduces “testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for cross-
examination.” 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004). The Court also
held that “[m]ost of the hearsay exceptions covered statements that by their
nature were not testimonial—for example, business records or statements in
furtherance of a conspiracy.” Id. at 55, 124 S. Ct. at 1367.
Applying Crawford, this court held in United States v. Valdez-Maltos
that warrants of removal are nontestimonial and thus not subject to
10
Case: 17-10862 Document: 00514419262 Page: 11 Date Filed: 04/06/2018
No. 17-10862
confrontation. 443 F.3d 910, 911 (5th Cir. 2006). Subsequently, in 2009, the
Supreme Court decided Melendez-Diaz v. Massachusetts, which held that
“certificates of analysis” prepared by a laboratory technician to determine
whether a substance possessed by a defendant is illegal are testimonial.
557 U.S. 305, 329, 129 S. Ct. 2527, 2542 (2009). Garcia argues that Melendez-
Diaz abrogated this court’s decision in Valdez-Maltos. We disagree and affirm
that warrants of removal remain nontestimonial after Melendez-Diaz. 2
In Valdez-Maltos, the court relied on two prior decisions: United States
v. Quezada and United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005).
As explained above, Quezada held that a warrant of removal was properly
admitted under the public records exception. In Rueda-Rivera, the court held
that certificates of non-existence of record (“CNRs”)—documents that certify
an alien has not applied for entry into the United States—do not violate the
Confrontation Clause when they are admitted without the testimony of the
analyst who prepared them. 396 F.3d at 680.
A subsequent panel, however, held that Rueda-Rivera was abrogated by
Melendez-Diaz. See United States v. Martinez-Rios, 595 F.3d 581, 586 (5th Cir.
2010) (“Because our holding in Rueda-Rivera that CNR[ ]s are not testimonial
statements cannot survive Melendez-Diaz, Rueda-Rivera is overruled.”).
Indeed, language in Melendez-Diaz directly implicated the use of CNRs by
stating that “a clerk’s certificate attesting to the fact that the clerk had
searched for a particular relevant record and failed to find it” was “[l]ike the
testimony of the analysists in this case” and must be “subject to confrontation.”
557 U.S. at 323, 129 S. Ct. at 2539.
2 This court has already affirmed that Valdez-Maltos remains good law after
Melendez-Diaz, but it did so in an unpublished opinion. See United States v. Becerra-Valadez,
448 Fed. Appx. 457, 463 (2011).
11
Case: 17-10862 Document: 00514419262 Page: 12 Date Filed: 04/06/2018
No. 17-10862
By comparison, Melendez-Diaz does not directly implicate this court’s
post-Crawford determination that warrants of removal are nontestimonial.
Garcia argues that, after Melendez-Diaz, warrants of removal are not insulated
from a confrontation challenge merely because they involve official and routine
procedures. This much is true. The certificates of analysis in Melendez-Diaz
were completed as a routine part of the analysts’ official duties. But Melendez-
Diaz emphasized the distinction between official records that are kept in the
ordinary course of an entity’s business and those that are produced specifically
“for the purpose of establishing or proving some fact at trial.” Melendez-Diaz,
557 U.S. at 324, 129 S. Ct. at 2539-40. As the Court explained, the certificates
of analysis were subject to confrontation because they were “prepared
specifically for use at petitioner’s trial.” Id. at 324, 129 S. Ct. at 2540.
By contrast, warrants of removal are nontestimonial because they are
not “prepared specifically for use at . . . trial.” They must be issued for cases
resulting in a final order of removal, see 8 C.F.R. § 241.2, to memorialize an
alien’s departure—not specifically or primarily to prove facts in a hypothetical
future criminal prosecution. Accordingly, Melendez-Diaz does not require that
warrants of removal be subject to confrontation.
Every circuit to address this issue post-Melendez-Diaz has reached the
same conclusion and found warrants of removal to be nontestimonial. See
United States v. Lorenzo-Lucas, 775 F.3d 1008, 1010 (8th Cir. 2014) (“Indeed,
nothing in Melendez–Diaz is clearly irreconcilable with [the] holding that a
warrant of removal is nontestimonial because it was not made in anticipation
of litigation.”) (citations omitted); United States v. Orozco-Acosta,
607 F.3d 1156, 1163 (9th Cir. 2010) (“Unlike the certificates of analysis in
Melendez–Diaz, neither a warrant of removal’s sole purpose nor even its
primary purpose is use at trial.”); United States v. Arias-Rodriguez, 636 F.
App’x 930, 933 (7th Cir. 2016) (“Unlike the report in Melendez-Diaz, the
12
Case: 17-10862 Document: 00514419262 Page: 13 Date Filed: 04/06/2018
No. 17-10862
warrants of removal at issue here were created for the internal use of agencies
tasked with enforcing immigration laws, and only a small percentage ever are
used in criminal prosecutions.”). In sum, we hold that Melendez-Diaz has not
overruled Rueda-Rivera’s sound conclusion that warrants of removal are
admissible in criminal prosecutions absent confrontation.
III. Brady Claim
Garcia also contends that the district court erred by denying his motion
for a new trial because the government violated its Brady duty by failing to
inform him that his admission occurred before he received Miranda warnings.
Garcia claims he was misled by the Miranda waiver, which indicated that he
had signed it on October 11—the date of his admission—whereas testimony at
trial revealed that he had likely signed the document on October 17. To
establish a Brady violation, Garcia must show that (1) the evidence at issue
was favorable to him; (2) the evidence was suppressed by the prosecution; and
(3) the evidence was material. United States v. Brown, 650 F.3d 581, 587-88
(5th Cir. 2011). Garcia’s Brady claim fails to satisfy the second element: he
has not shown that “evidence was suppressed by the prosecution.”
Garcia himself participated in the conversations with Officer Sims, and
he signed the Miranda waiver. He thus had direct, personal knowledge
concerning the dates on which his admission and Miranda waiver occurred.
This court has repeatedly affirmed that regardless of whether the evidence was
material or even exculpatory, “[w]hen information is fully available to a
defendant at the time of trial and his only reason for not obtaining and
presenting the evidence to the Court is his lack of reasonable diligence, the
defendant has no Brady claim.” Pippin v. Dretke, 434 F.3d 782, 790 (5th Cir.
2005) (quoting United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980). As
the government points out, any confusion over the date Garcia signed the
Miranda waiver was evident on the face of the document: Officer Sims, who
13
Case: 17-10862 Document: 00514419262 Page: 14 Date Filed: 04/06/2018
No. 17-10862
signed the form as a witness to the waiver, wrote October 17 for the date; a
second officer witness wrote October 19 on the form. No evidence was
suppressed for Brady purposes. See Pippin, 434 F.3d at 790.
CONCLUSION
For these reasons, Garcia’s conviction is AFFIRMED.
14