United States v. Wilberth Garcia
Opinion
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 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 *208 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.
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
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 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
*209
for an abuse of discretion whether those statements affected the defendant's substantial rights.
See
United States v. McCann
,
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.
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
,
Determining the propriety of the prosecutor's statements requires examining the context in which they were made.
See
United States v. Thompson
,
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
,
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
,
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 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
,
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
*211
should be believed simply because they were doing their job."
United States v. Gracia
,
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] 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
,
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 *212 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.
Garcia's untrustworthiness argument relies on
United States v. Arledge
,
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."
Applying
Crawford
, this court held in
United States v. Valdez-Maltos
that warrants of removal are nontestimonial and thus not subject to confrontation.
In
Valdez-Maltos
, the court relied on two prior decisions:
United States v. Quezada
and
United States v. Rueda-Rivera
,
A subsequent panel, however, held that
Rueda-Rivera
was abrogated by
Melendez-Diaz
.
See
United States v. Martinez-Rios
,
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
,
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
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
,
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
,
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
,
CONCLUSION
For these reasons, Garcia's conviction is AFFIRMED.
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.
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
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Wilberth Medina GARCIA, Defendant-Appellant
- Cited By
- 10 cases
- Status
- Published