United States v. Javier Garcia-Villegas ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50503
Plaintiff-Appellee,
v.  D.C. No.
3:08-cr-01761-JM-1
JAVIER GARCIA-VILLEGAS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
May 6, 2009—Pasadena, California
Filed August 4, 2009
Before: John T. Noonan, Diarmuid F. O’Scannlain and
Susan P. Graber, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Graber
10225
UNITED STATES v. GARCIA-VILLEGAS 10227
COUNSEL
James M. Chavez, San Diego, California, for the appellant.
George V. Manahan, San Diego, California, for the appellee.
OPINION
NOONAN, Circuit Judge:
Javier Garcia-Villegas (Garcia) appeals the judgment of the
district court convicting him of the misdemeanor of attempt-
ing to enter the United States in violation of 8 U.S.C. § 1325.
We affirm the conviction and hold that Garcia’s admission of
alienage was sufficiently corroborated by the testimony of
witnesses who observed Garcia climbing over the border
fences from Mexico.
FACTS
On May 21, 2008, Sgt. Gomer, a video surveillance opera-
tor working for the California Army National Guard,
observed two individuals climbing down the north side of the
primary border fence between Mexico and the United States.
He notified Border Patrol Agent Andrew Kim of the activity.
The two individuals moved towards the secondary fence, and
one of them hooked a ladder onto the top of the fence and
steadied the ladder. The second individual climbed the ladder,
10228 UNITED STATES v. GARCIA-VILLEGAS
negotiated the concertina wire, and dropped to the north side
of the secondary fence. He hid behind a bush near the fence.
Within minutes, Agent Kim apprehended him. The man
who’d helped him, probably a coyote, had already returned to
Mexico.
Agent Kim asked the suspect his name, his parents’ names,
his place of birth, and whether he had documents permitting
him to be in the United States. The suspect identified himself
as Javier Garcia-Villegas, a Mexican national without authori-
zation to be in this country.
At the station, Border Patrol Agent Villarreal entered Gar-
cia’s biographical information into a database, took his finger-
prints, and informed him of his administrative rights. A little
later, Agent Villarreal told Garcia the proceedings against him
had changed, because he was going to be tried for committing
a federal crime. He then advised Garcia of his Miranda rights
in Spanish. Garcia waived these rights and agreed to speak to
Agent Villarreal.
Under oath, Garcia declared that he was born in Mexico;
that he had entered the United States as a child approximately
20 years ago; that he had left the United States for the first
time recently; that he had reentered the United States illegally
by climbing the border fences; that this was his first entry into
the United States since entering the country as a child; and
that he entered the United States with the intention of going
to Pomona, California, where he once resided.
PROCEEDINGS
On June 11, 2008, a bench trial was held before Anthony
J. Battaglia, Magistrate Judge. The magistrate judge found
against Garcia. The district court affirmed the judgment.
Garcia appeals.
UNITED STATES v. GARCIA-VILLEGAS 10229
ANALYSIS
[1] Admissions, postfactum, of the elements of the crime
with which the defendant is charged must be corroborated by
“substantial independent evidence which would tend to estab-
lish the trustworthiness of the statement[s].” Opper v. United
States, 348 U.S. 84, 93. So, with prudence, the law requires
more evidence of the corpus delicti than the extrajudicial
admission of the person charged with its commission.
[2] In our case, Garcia twice admitted the elements of an
illegal entry by an alien into this country. The government
supplemented these admissions with the testimony of one wit-
ness who saw Garcia climbing the fences marking the border,
and one who apprehended him, with torn clothes and bloody
hands, hiding in a bush on the American side. Garcia’s admis-
sions were corroborated. His guilt was proved.
[3] It is suggested that Garcia could have had some motive
in his fence-climbing that was not based on a desire to avoid
deportation as an alien. No doubt such a motive may be imag-
ined. The imagined motive is not relevant. A reasonable fact-
finder could infer from the fact that Garcia climbed two
fences and hid in one bush that Garcia was conscious that he
had no legal right to enter the United States. This substantial
and independent evidence is sufficient to establish the trust-
worthiness of Garcia’s statements. See Opper, 348 U.S. at 93.
Corroboration enough!
[4] Garcia points to United States v. Hernandez, 105 F.3d
1330 (9th Cir. 1996). In that case the government proved the
defendant’s illegal entry into the United States by documents
showing his previous deportation to Mexico; by testimony as
to the defendant scaling the border fence; and by his repeated
admissions. We affirmed the judgment of conviction, finding
that the government’s evidence, taken as a whole, sufficiently
corroborated the defendant’s admissions of alienage. We
explicitly declined to hold that any individual piece of evi-
10230 UNITED STATES v. GARCIA-VILLEGAS
dence presented by the government, including the mode of
entry evidence, was by itself sufficient to corroborate the
defendant’s admissions. That was not the case before us then.
It is the case before us now. Here, the mode of entry evidence
comes not only from the defendant but also from two inde-
pendent sources. That is sufficient to provide the corrobora-
tion. We do not decide today whether a mere admission of
border crossing would suffice to confirm an admission of
alienage.
[5] Garcia’s objections to the Miranda advice he received
in Spanish from the agents are unpersuasive: a quibble as to
the translation; and an attempt to apply United States v. San
Juan-Cruz, 314 F.3d 384 (9th Cir. 2002), where in fact that
court endorsed the procedure that Agent Villarreal followed
here. See id. at 389. Garcia also argues for the first time that
the agents employed “a two-step” process of interrogation to
avoid Miranda contrary to Missouri v. Seibert, 542 U.S. 600,
617 (2004). Garcia’s argument is supported by no facts and
had already been waived by not being argued before. The
admissions made by Garcia before he was Mirandarized were,
the district court found, voluntary.
[6] Finally, we reject Garcia’s claim that the government
failed to identify him as the perpetrator of the offense. The
government witnesses sufficiently identified Garcia as the
man on the fences and in the bush.
The judgment of the district court is AFFIRMED.
GRABER, J., concurring in part and specially concurring in
part:
I concur in most of the majority opinion and concur in the
judgment. But I respectfully disagree with the majority’s
description of our holding in United States v. Hernandez, 105
UNITED STATES v. GARCIA-VILLEGAS 10231
F.3d 1330 (9th Cir. 1997). There, we held that mode-of-entry
evidence was insufficient to corroborate a defendant’s admis-
sion that he was an alien. Id. at 1333. We are bound by the
holdings of Hernandez. See generally Miller v. Gammie, 335
F.3d 889 (9th Cir. 2003) (en banc). We recognize an excep-
tion to that rule when a holding is “made casually and without
analysis, . . . uttered in passing without due consideration of
the alternatives, or where it is merely a prelude to another
legal issue that commands the panel’s full attention.” V.S. ex
rel. A.O. v. Los Gatos-Saratoga Joint Union High Sch. Dist.,
484 F.3d 1230, 1232 n.1 (9th Cir. 2007) (internal quotation
marks omitted). That exception does not apply here: The Her-
nandez panel expressly considered whether mode-of-entry
evidence was sufficient, held that it was not, and explained its
reasoning. 105 F.3d at 1333.
I nevertheless reach the same conclusion as the majority,
because I read the Hernandez holding as encompassing only
mode-of-entry evidence admitted by the defendant. In Her-
nandez, the only evidence presented concerning the defen-
dant’s mode of entry was the defendant’s own admission. See
id. at 1331 (noting that “Hernandez told [the government
agent] that he had entered the United States by scaling the
border fence with Mexico”). In other words, in Hernandez the
mode-of-entry evidence was not independent corroboration;
instead, it was just part of the defendant’s admission. Here, by
contrast, the government introduced testimony from two wit-
nesses, one who saw Defendant scale the fences and another
who found Defendant hiding in the bushes with torn clothes
and bloody hands. That distinction is significant because the
purposes of the corroboration rule are to avoid prosecutions
based on insufficient investigation and to avoid creating
incentives for abusive tactics in eliciting admissions. See
Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964).