     Case: 10-50446     Document: 00511652721         Page: 1     Date Filed: 11/02/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         November 2, 2011

                                       No. 10-50446                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

GONZALO BECERRA-VALADEZ,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas,
                                Midland Division
                             7:09-cr-00293-RAJ-ALL


Before REAVLEY, GARZA, and GRAVES, Circuit Judges.
PER CURIAM:*
        Gonzalo Becerra–Valadez (“Becerra”) was convicted by a jury of illegal
entry into the United States after deportation, pursuant to 8 U.S.C. § 1326(a),
and was sentenced to five years probation. Becerra now appeals his conviction
and sentence, arguing that his rights under the Sixth Amendment’s
Confrontation Clause and Fifth Amendment’s Due Process Clause were violated
when documents from his alien file (“A-File”) containing alleged testimonial


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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statements were admitted into evidence without an opportunity for him to
confront and cross-examine the declarants. We disagree and AFFIRM Becerra’s
conviction and sentence.
                    FACTS AND PROCEDURAL HISTORY
      On October 29, 2009, Officer Jason Wilson stopped a car driven by
Becerra. Becerra was stopped for exceeding the speed limit. Wilson approached
the vehicle and asked Becerra for his driver’s license. Becerra informed Wilson
that he did not have a driver’s license or any other form of identification save a
Mexican identification card.    Becerra admitted to Wilson that he and his
passenger (Becerra’s wife) were not legally present in the United States. Once
Wilson learned of their illegal presence in the United States, he contacted the
Bureau of Immigration and Customs Enforcement (“ICE”), issued Becerra a
citation, and arrested him. While in custody, ICE agent Gabriel Escoto met with
Becerra to conduct an interview to discover whether Becerra was, in fact,
illegally present in the United States. After Escoto read Becerra his Miranda
rights, Becerra agreed to waive those rights and admitted that he was a Mexican
national who had been previously removed from the United States.
      On November 18, 2009, a federal grand jury indicted Becerra for illegally
returning to the United States following removal, in violation of 8 U.S.C. §
1326(a). The indictment alleged that Becerra had been previously deported and
removed from the United States and had not received consent to reapply for
admission to the United States.
      At trial, Escoto testified that an A-File is created in every immigration
case regardless of whether the alien is formally prosecuted or is permitted to
voluntarily leave the United States without immigration court proceedings.
Escoto stated that each A-File is given a unique number and is kept in the
central repository at the National Records Center. According to Escoto, aliens
who are formally prosecuted and ordered removed from the United States by an

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Immigration Judge (“IJ”) are escorted to the border and released to the Mexican
authorities. The alien’s departure is then recorded in an administrative warrant
of deportation/removal, otherwise known as a Form I-205.                   A Form I-205
contains a photograph of the alien, the alien’s fingerprint and signature, and the
signature of an immigration official indicating that he or she witnessed the alien
depart from the United States. Escoto testified that the completed Form I-205
is then placed in the alien’s A-File.
      Escoto testified that he interviewed Becerra and recorded his statements
on Form I-215.1 During this interview, Becerra stated that he was born in and
was a citizen of Mexico; was removed from the United States to Mexico on July
10, 2001; he reentered the United States through Brownsville, Texas on
September 9, 2001, and had not applied for consent to reenter the United States.
After Becerra reviewed his recorded responses, Escoto witnessed Becerra sign
the Form I-215. Following the interview, Escoto ran a search in several ICE
databases to corroborate Becerra’s statement. Escoto’s search revealed that on
three prior occasions Becerra had encountered ICE agents, had previously been
removed to Mexico, and had never applied for legal admission to the United
States.
      The Government then moved to admit four exhibits: (1) IJ’s order of
removal, (2) Becerra’s Form I-205, (3) Becerra’s waiver of rights form, and (4)
Becerra’s Form I-215. Escoto testified that Government exhibit 1 was an IJ’s
order of removal, dated July 9, 2001, indicating that Becerra was ordered to be
removed to Mexico following the immigration court proceedings. Although
Escoto did not witness Becerra depart from the United States to Mexico, Escoto
stated that Government exhibit 2 was a Form I-205 from Becerra’s A-File that
contained a photograph of Becerra, his fingerprint and signature, and the


      1
          A Form I-215 is a form used to create a record of a sworn statement by an alien.

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signature of the immigration official who witnessed Becerra depart from the
United States into Mexico on July 10, 2001.
      Becerra objected to the admission of all four exhibits on grounds that
admission violated his rights under the Sixth Amendment’s Confrontation
Clause. Specifically, Becerra argued that the Government had not presented a
witness that could identify the fingerprints on the Form I-205 as belonging to
Becerra, and that Becerra had not been given the opportunity to confront the
immigration official who indicated on the Form I-205 that he witnessed Becerra
depart from the United States. The district court admitted the Governments’
exhibits over Becerra’s objection, finding that the exhibits were non-testimonial
and that Escoto’s testimony established that the documents were obtained from
Becerra’s A-File.
      At the close of the Government’s case-in-chief, Becerra moved for judgment
of acquittal pursuant to Federal Rules of Criminal Procedure 29. The district
court, reviewing the evidence in the light most favorable to the Government,
found that a rational juror could find Becerra guilty beyond a reasonable doubt
on each of the elements of the offense charged, and denied Becerra’s motion.
Becerra did not present any evidence in his defense.
      Following closing arguments, the jury found Becerra guilty of illegal entry
into the United States after deportation, in violation of 8 U.S.C. § 1326(a). The
district court sentenced Becerra to five years probation and this appeal followed.
                          STANDARD OF REVIEW
      On appeal Becerra challenges the admission of Government exhibits 1 and
2, respectively the IJ’s July 9, 2001 order of removal and the Form I-205 warrant
of removal. Becerra alleges that both of these documents contain testimonial
statements and are subject to the requirements of the Sixth Amendment’s
Confrontation Clause. For exhibits 1 and 2 to be admissible, Becerra contends
that the Government should have produced a witness with personal knowledge

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of the statements made in the challenged exhibits, established that those
witnesses were unavailable for trial, or shown that those witnesses had been
previously subject to cross-examination. Becerra further contends that his
rights under the Fifth Amendment Due Process Clause were violated in that,
absent such witnesses, the Government did not satisfy its burden of showing
that Becerra’s statements contained in challenged exhibits were made knowingly
and voluntarily. This court reviews whether the admission of evidence violated
the Confrontation Clause de novo, subject to harmless error analysis. United
States v. Morgan, 505 F.3d 332, 338 (5th Cir. 2007).
                                   DISCUSSION
       The Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right “to be confronted with witnesses against him.” U.S. Cont.
amend. VI. In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme
Court held that the Confrontation Clause is violated where the prosecution
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.” The Court observed, however, that certain
statements, “by their nature [are] not testimonial – for example, business
records or statements in furtherance of a conspiracy.” Id. at 56. The Court left
“for another day any effort to spell out a comprehensive definition of
‘testimonial.’” Id. at 68.
      Recently, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the
Supreme Court revisited the question of what constitutes a testimonial
statement. The Court held that the admission of “certificates of analysis”2
without testimony from the laboratory technicians that prepared them violated
the defendant’s rights under the Confrontation Clause because the certificates

      2
         Certificates of analysis are documents prepared by laboratory technicians that
confirm or deny whether a substance possessed by a defendant is an illegal substance.

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were “quite plainly affidavits” submitted to establish a fact, were prepared in
anticipation for use at trial, and were “functionally equivalent to live, in court
testimony.” Id. at 2532. The Court held that the certificates were not business
or official records because the business records exception to the hearsay rule did
not extend to cases where “the regularly conducted business activity is the
production of evidence for use at trial.” Id. at 2538. Nevertheless, the Court
observed, documents “created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at trial . . . are not
testimonial.” Id. at 2539-40.
      While we have held that a Form I-205 was non-testimonial evidence and
that such a warrant may be admitted into evidence without violating the
Confrontation Clause, United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th
Cir. 2006), we have not had the opportunity to address the issue of whether,
after Melendez-Diaz, documents contained in an alien’s A-File – specifically,
Form I-205 and an IJ’s order of removal – are testimonial.                Because
Valdez-Maltos relied, in-part, upon one of our earlier decisions that was
implicitly overruled by Melendez-Diaz and explicitly overruled by Martinez-Rios,
595 F.3d 581, 586 (5th Cir. 2010), it is necessary to address the issue of whether,
after Melendez-Diaz, a Form I-205 and an IJ’s order of removal contained in an
alien’s A-File are testimonial.
      In reaching our decision in Valdez-Maltos, we relied on two of our earlier
decisions: United States v. Quezada, 754 F.2d 1190 (5th Cir. 1985) and United
States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005), overruled by Martinez-Rios,
595 F.3d at 586. In Quezada, we held that a Form I-205 contained in an alien’s
A-File was properly admitted under Federal Rules of Evidence 803(8) (public
records exception). 754 F.2d at 1194-95. This exception to the general hearsay
rule is based upon the principles that “public documents prepared in the
discharge of official functions” are presumed trustworthy, “and the necessity of

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using such documents, [is] due to the likelihood that a public official would have
no independent memory of a particular action or entry where his duties require
the constant repetition of routine tasks.” Id. at 1193 (see generally, 4 D. Louisell
and C. Mueller, Federal Evidence, Public Records § 454).            Therefore, we
determined that a Form I-205 was reliable and admissible because an
immigration official preparing the warrant has no motivation to do anything
other than “mechanically register an unambiguous factual matter.” Id. at 1194.
      Similarly, in Rueda-Rivera, this court held that a certificate of
non-existence of record (“CNR”) was non-testimonial evidence and may be
admitted without violating the Confrontation Clause.            396 F.3d at 680.
However, following the Supreme Court’s decision in Melendez-Diaz,
Rueda-Rivera has been recently overruled. Martinez-Rios, 595 F.3d at 586
(holding that a CNR in a § 1326 case is a testimonial statement, and that its
admission, as proof of a defendant’s failure to apply for admission to the United
States, without testimony of the analyst who prepared the CNR, violated the
Confrontation Clause).      However, the holding in Quezada has not been
overruled.
      Therefore, in order to avoid the application of Valdez-Maltos, Becerra must
show that the holding in that case has been explicitly or implicitly overruled by
an intervening Supreme Court decision. See Martin v. Medtronic, Inc., 254 F.3d
577 (5th Cir. 2001) (“[A] panel of this court can only overrule a prior panel
decision if ‘such overruling is unequivocally directed by controlling Supreme
Court precedent.’”).
      Although Martinez-Rios decided only whether, after Melendez-Diaz, the
admission of a CNR without the testimony of the analyst that prepared it in a
§ 1326 case violated the defendant’s confrontation rights, this court’s
observations in that case are instructive. Martinez-Rios, 595 F.3d at 583,
585-86. In Martinez-Rios, we noted that Melendez-Diaz relied upon a “key

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distinction between records that are kept in the ordinary course of business and
those that are specifically produced for use at trial,” the latter being testimonial.
Id. at 586. This court held that because “CNR’s are not routinely produced in
the course of Government business but instead are exclusively generated for use
at trial,” the CNR was testimonial and triggered the Confrontation Clause. Id.
      In this case, Becerra argues that the Form I-205 was testimonial in nature
because it was “on its face, an affidavit.”       He argues that the form “was
‘subscribed and sworn to’ by himself, and attested to by the examining ICE agent
and another witness.” However, the Form I-205 at issue here does not contain
any language indicating that the form was “subscribed and sworn to” by Becerra
or the immigration official. Becerra further contends that both the IJ’s order of
removal and the Form I-205 were created for use at trial because their primary
purpose was to record statements for subsequent criminal prosecutions.
      Contrary to Becerra’s assertion, Escoto testified that an IJ’s order of
removal is one possible result of the routine administrative process applicable
to an alien who is subject to immigration proceedings. Escoto also testified that
an IJ’s order of removal provides immigration officials the authority to remove
an alien from the United States and that a Form I-205 is used in ICE’s regular
course of business to document an alien’s departure from the United States.
Certainly, an official court document, such as an IJ’s order of removal, which is
created for the purpose of empowering ICE agents to carry out their ministerial
duties does not fall within contours of the certificates of analysis at issue in
Melendez-Diaz. See Melendez-Diaz, 129 S. Ct. at 2538-39 (certificates of analysis
– “like police reports generated by law enforcement officials – do not qualify as
business or public records for precisely the same reason” – they are not routinely
produced in the course of government business, but are produced exclusively for
use at trial. (citation omitted)). Similarly, a Form I-205, which must be
prepared in every case resulting in a final order of removal, see 8 C.F.R. § 241.2,

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is produced in the routine course of government business, and not for use
exclusively at trial, to memorialize an alien’s departure from the United States.
It is of no moment that an incidental or secondary use of those documents,
generated by interviews and other means, actually furthered a prosecution. See
Davis v. Washington, 547 U.S. 813, 822 (2006) (holding that statements are
testimonial when, inter alia, “the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution”
(emphasis added)).
      Moreover, other circuits considering the issue presented here have
consistently held that a Form I-205 and similar A-File records are
non-testimonial and do not violate the Confrontation Clause. See United States
v. Valdovinos-Mendez, 641 F.3d 1031, 1034 (9th Cir. 2011) (recognizing that a
warrant of removal and an IJ’s order of removal are non-testimonial in nature);
United States v. Orozco-Acosta, 607 F.3d 1156, 1161-64 (9th Cir. 2010)
(determining that Melendez-Diaz did not apply to a warrant of removal), cert.
denied, 131 S. Ct. 946 (2011); United States v. Diaz-Gutierrez, 354 F. App’x 774,
775 (4th Cir. 2009) (warrants of deportation are non-testimonial and therefore
not subject to the requirements of the Confrontation Clause), cert. denied, 130
S. Ct. 1560 (2010); United States v. Burgos, 539 F.3d 641, 645 (8th Cir. 2008)
(concluding that a warrant of deportation is a non-testimonial business record
not subject to the requirements of the Confrontation Clause); United States v.
Torres-Villalobos, 487 F.3d 607, 613 (7th Cir. 2007) (holding the admission of
warrants of deportation did not violate defendant’s Confrontation Clause rights);
United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (holding that
a warrant of deportation is non-testimonial in nature and not subject to
confrontation because it “is recorded routinely and not in preparation for a
criminal trial. It records facts about where, when, and how a deportee left the
country.”).

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      The admission of the IJ’s order of removal and Form I-205 did not violate
Becerra’s rights under the Sixth Amendment Confrontation Clause. Therefore,
the district court did not err in admitting these documents into evidence.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM Becerra’s conviction and sentence.




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