Argued and Submitted, Pasadena, California July 10,
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-04340-H-1. Marilyn L. Huff, District Judge, Presiding.
The panel affirmed the district court's judgment in a case in which the defendant was convicted of being a removed alien found in the United States and making a false claim of United States citizenship.
The panel held that the district court's admission of an affidavit, signed by two border patrol agents, amending the defendant's delayed registration of birth violated the Confrontation Clause because the affidavit constituted a testimonial statement and the government failed to call the agents to testify. The panel held that the admission constituted plain error, but did not affect the outcome of the trial and thus did not affect the defendant's substantial rights.
Because the panel concluded that the admission of the affidavit was harmless, the panel did not address the merits of the defendant's evidentiary challenges to its admission.
Rejecting the defendant's contention that the prosecutor drew an improper inference during closing argument by claiming that the defendant's delayed birth registration was a " forgery," the panel held that the argument that the document is a fabrication is a reasonable inference from the evidence, and that the prosecutor's remarks during closing argument do not constitute error, much less plain error.
The panel held that the defendant failed to show the multiple errors necessary to prevail on a claim of cumulative error.
Judge Wardlaw concurred in part and dissented in part. She agreed with the majority's holdings that the district court violated the defendant's Confrontation Clause rights by admitting the amended delayed birth registration, which contained testimonial statements, and that admission of the document was error because the government failed to call the two attesting agents to testify. She wrote that the majority incorrectly reviews this error under the plain error standard, disregarding the well-established principle that this court reviews " de novo whether the admission of a document violated a defendant's Confrontation Clause rights." She wrote that under that standard the government cannot meet its burden of proving that the Confrontation Clause error is harmless beyond a reasonable doubt.
Kara Hartzler (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura Duffy, United States Attorney, Bruce Castetter, Assistance United States Attorney, Chief, Appellate Section, and Charlotte E. Kaiser (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Fortunato P. Benavides,[*] Kim McLane Wardlaw, and Richard R. Clifton, Circuit Judges. Opinion by Judge Benavides; Partial Concurrence and Partial Dissent by Judge Wardlaw.
This is a direct criminal appeal from convictions for being a removed alien found in the United States in violation of 8 U.S.C. § 1326 and for making a false claim of United States citizenship in violation of 18 U.S.C. § 911. Finding no reversible error, we affirm the district court's judgment.
I. FACTUAL AND PROCEDURAL HISTORY
A. Charged Conduct
On September 5, 2011, Defendant-Appellant Juan Macias (" Macias" ) was arrested for illegal re-entry near the Tecate, California, Port of Entry. At approximately 4 o'clock in the morning, a seismic sensor indicated movement. Border Patrol Agent Russell Slingerland and two other agents responded to the location of the sensor. Upon investigation, they discovered Macias crouched behind boulders and brush in a steep canyon. Macias initially told the agents that he had no legal documents to be in the United States and that he entered by " jumping the [border] fence." Macias also told the agents he was from Mexico. However, after Macias was brought into custody, he agreed to speak to an agent without an attorney and claimed under oath that he was born in Riverside, California. He said his mother
had told him that he had been born in Riverside, but because he was born at home she never " registered" his birth. He claimed that he had a California birth certificate and was a United States citizen. However, he did not have the birth certificate with him.
B. First Trial
On September 27, 2011, a federal grand jury returned a two-count indictment, charging Macias with being a removed alien in the United States in violation of 8 U.S.C. § 1326 and with making a false claim of United States citizenship in violation of 18 U.S.C. § 911. A jury trial began on June 5, 2012, and on June 8, the district court declared a mistrial due to a hung jury. During the trial, Macias had submitted a " delayed registration of birth" document issued by the State of California, and it provided that he had been born in Riverside, California. Macias had obtained this delayed registration of birth document in 1998. After the mistrial, two of the jurors told the prosecutors that they could not find Macias guilty because there was no showing that Macias's delayed registration of birth document had been invalidated.
C. Post-trial Investigation of Macias's Birthplace
Subsequently, at the request of the prosecutor, two border patrol agents, Andrew Kahl and Brian Desrosiers, conducted an investigation regarding Macias's place of birth. The agents interviewed Macias's family members, including his father, who told them Macias was born in Mexico, and not in California. The interviews were conducted at Macias's parents' home in Riverside, California. Through investigators with the State Department, the agents obtained a birth certificate showing that Macias was born on October 31, 1960 in Yurecuaro, State of Michoacan, Mexico. That certificate was dated November 7, 1960. Additionally, the agents reviewed documents contained in the Macias family's immigration files. Macias's parents' applications for lawful permanent residency provided that Macias had been born in Mexico.
Based on the above information discovered through their investigation, the agents concluded that Macias had been born in Mexico and then attempted to correct the birthplace listed on Macias's delayed registration of birth. The State of California has a procedure to amend a delayed registration of birth. Two individuals with knowledge of the facts may apply for an amendment if there is an error in the document. Those two individuals must fill out a notarized sworn statement and pay a fee. Agent Kahl filled out the form and both Agents Kahl and Desrosiers signed the affidavit amending Macias's delayed registration of birth. The amending affidavit provided that Macias's birth actually occurred in Yurecuaro, Michoacan, Mexico and not Riverside, California. The agents mailed the affidavit to the California Office of Vital Records, and it was attached to the delayed registration of birth on file.
The second jury trial began on July 17, 2012, and once again, the central issue was whether Macias was born in Mexico or in California. We now turn to the evidence admitted at Macias's retrial.
1. Birth Documents
Through the custodian of the California Office of Vital Records, the government introduced Macias's delayed registration of birth and the amending affidavit that had been executed by the border patrol agents. More specifically, the evidence showed that in 1998, Macias, then age 37, completed the application for a delayed registration of birth and mailed it to the California
Office of Vital Records. The application contained the purported signatures of his mother, Maria Macias (" Maria" ), and a family friend, Ernestina Guerrero (" Guerrero" ). The application provided that Guerrero was present at Macias's birth on October 31, 1960, at " home" in Riverside, California. To receive a delayed registration of birth, the applicant must submit proof of his place of birth. Macias submitted with his application a copy of his daughter's California birth certificate which listed her father's (Macias's) birthplace as California. The California Office of Vital Records issued the delayed registration of birth with the above information and mailed it to Macias.
As set forth previously, in 2012, the agents filed an amending affidavit, which was attached to the delayed registration of birth. Although the delayed registration of birth was admitted at the first trial, the amending affidavit was not in existence at the time of the first trial. At the time the government introduced into evidence the delayed registration of birth with the attached amending affidavit, the two agents who signed the affidavit had not testified. However, defense counsel subsequently called Agent Kahl, and he testified with respect to their investigation of Macias's birthplace and the execution of the amending affidavit.
The government also introduced a copy of the previously mentioned Mexican birth certificate dated November 7, 1960, which provided that Macias was born in Mexico on October 31, 1960. Macias's father, Felipe Macias, Sr. (" Felipe" ), had signed this birth certificate, and there were two witnesses listed on it. This birth certificate had not been submitted at the first trial. Felipe testified that Macias was born in Yurecuaro, Michoacan, Mexico, and that he was present at Macias's birth. Eight days after the birth, he and Maria took Macias to the civil registry and obtained this birth certificate. He further testified that Maria, who could not read or write, did not sign the certificate but did place her fingerprint on it. The birth certificate also contained Felipe's and Macias's fingerprints. Consistent with this evidence, one of Macias's older brothers, Gil Macias, testified that Macias was born in Yurecuaro, Michoacan, Mexico.
2. Parents' Immigration Files
In 1987, Felipe and Maria applied for lawful permanent residency in the United States. Their applications asked whether their children were United States citizens, and they checked the box " No" for all their children, including Macias. The applications provided that all their children were born in Mexico. The parents were granted lawful permanent residency and moved the family to Riverside, California.
3. Macias's Immigration File
Border Patrol Agent Kara Reale testified with respect to the contents of Macias's immigration file. Macias had been deported to Mexico many times prior to this trial. Macias was first deported to Mexico in 1981, at the age of 21. During those proceedings, Macias requested to be returned to Mexico, stating that he was a citizen of Mexico.
In 1988 and 1989, Macias was again deported to Mexico based on his admissions during deportation proceedings. An audio recording of the ...