   Case: 10-50385       Document: 00511571968         Page: 1     Date Filed: 08/15/2011




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

                                                                            FILED
                                                                          August 15, 2011
                                      No. 10-50385
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JULIO CESAR MONTALVO-RANGEL, also known as Julio Cesar Montalvo,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                 No. 5:10-CR-64




Before SMITH and STEWART, Circuit Judges.*
JERRY E. SMITH, Circuit Judge:**




       *
       Judge Garwood was a member of this panel but died, after oral argument, on July 14,
2011. This matter is decided by a quorum. See 28 U.S.C. § 46(d).
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 10-50385

      Julio Montalvo-Rangel appeals his conviction of illegal reentry. Finding
no error, we affirm.


                                        I.
      Montalvo-Rangel was arrested in January 2010 on an outstanding war-
rant, taken to a county jail, and questioned by Immigration and Customs
Enforcement (“ICE”) agents. They obtained “biological” information from him,
including an admission that he was a Mexican citizen who was in the country
illegally, and recorded that information on a document called Form I-213, Record
of Deportable/Inadmissible Alien. They also asked Montalvo-Rangel to make a
sworn statement for inclusion on a Form I-215B, Record of Sworn Statement in
Affidavit Form. They informed him of his Miranda rights, as required by the
form, and he chose to remain silent.
      Montalvo-Rangel was charged with illegal reentry in violation of 8 U.S.C.
§ 1326(a). He sought to suppress the statements taken from him by the ICE
agents and recorded on the Forms I-213 and I-215B. At the hearing on the
motion, an ICE agent testified that it was customary practice to obtain informa-
tion from an arrestee to fill out Form I-213 before providing the Miranda warn-
ing required by Form I-215B. The government, without explanation, withdrew
any reliance on the statements contained in either form. The district court
granted the motion to suppress, stating that it found it “troubling” that there
“appears to be a standard practice by ICE agents to interrogate individuals first
and provide Miranda warnings afterward.”
      The case proceeded to bench trial, where the government sought to admit
a Form I-215B from 2008, when Montalvo-Rangel was first deported, which also
contained a statement from him declaring that he was a citizen of Mexico. Mon-
talvo-Rangel argued that the 2008 form should be suppressed because (1) admis-
sion in evidence would violate his rights under the Confrontation Clause of the

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                                  No. 10-50385

Sixth Amendment, and (2) the government had failed to prove that the state-
ments contained in the form were knowing and voluntary. During the hearing
on the motion to suppress, the government called no witnesses who had been
present at the time the form was created or when the statements recorded in the
form were made, nor did the government show that the witnesses were unavaila-
ble or had previously been subject to cross-examination regarding the form. The
district court overruled Montalvo-Rangel’s objections, admitted the form in evi-
dence, and found Montalvo-Rangel guilty of illegal reentry.


                                        II.
      Montalvo-Rangel argues that because the agent who filled out the 2008
Form I-215B did not testify, Montalvo-Rangel was denied his constitutional right
to “confront” a witness. The “form” in question, however, is actually an affidavit
executed by Montalvo-Rangel. Although it was typed by an immigration officer,
it was signed and attested to by Montalvo-Rangel. In that respect, it is no differ-
ent from a person’s dictating an affidavit to an assistant before signing it—the
“witness” in such a situation is the individual dictating and signing the affidavit,
not the one who transcribed it. The language of the document confirms this:

      I, Julio Montalvo-Rangel acknowledge that the above-named officer
      has identified himself to me as an officer of the United States
      Department of Homeland Security, authorized by law to administer
      oaths and take testimony in connection with the enforcement of the
      Immigration and Nationality laws of the United States. He has
      informed me that he desires to take my sworn statement regarding:
      my illegal entry into the United States.
      ...
      [Record of questioning, including a question regarding Montalvo-
      Rangel’s citizenship]
      ...


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                                        No. 10-50385

       I have read (or have had read to me) the foregoing statement con-
       sisting of ___ pages. I affirm that the answers attributed to me
       herein are true and correct to the best of my knowledge and belief
       and that this statement is a full, true, and correct record of my ques-
       tioning by the above-named officer of the Immigration and Natural-
       ization Service. I have initialized each page of this statement. . . .1


The form is nothing more than a statement by Montalvo-Rangel; accordingly, the
only witness he has the right to confront is himself.
       The recent decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011),
does not alter our analysis. There, a forensic analyst was assigned to test the
blood alcohol content of the defendant. The analyst conducted the test and pre-
pared a report that, among other things, affirmed that the analyst had received
the blood sample with its seal intact and had followed all appropriate procedures
in conducting the test. At trial, though the report was admitted into evidence,
a different analyst was called to testify. The Court held that, because the report
included testimonial statements made to prove a fact at a criminal trial, the
defendant’s Confrontation Clause rights were violated because the declarant—
the analyst who made the testimonial statements—was not made available for
cross-examination at trial. Montalvo-RangelSSnot the agent who transcribed the
affidavitSSwas the declarant of the testimonial affidavit, and Bullcoming gives
Montalvo-Rangel only the right to confront himself.2

       1
           On the form, a Spanish translation appears alongside the English text.
       2
         Montalvo-Rangel also complains that, by not being able to cross-examine the agent
who transcribed the statements, he was unable to develop information concerning the circum-
stances under which the form was created and signed. That may be the case, but it is irrele-
vant to the Confrontation Clause issue of whom Montalvo-Rangel was entitled to confront once
the form was admitted into evidence. The circumstances surrounding Montalvo-Rangel’s sig-
nature on the form speak to the voluntariness of the affidavit, as well as its admissibility gen-
erally under the rules of evidence, and not to the identity of the declarant. Montalvo-Rangel
is not entitled, under the Confrontation Clause, to cross-examine witnesses to his own affidavit
(he does not contest that it is his signature, which is one item the immigration officer attested
                                                                                   (continued...)

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                                        No. 10-50385

                                              III.
       “A confession is voluntary if, under the totality of the circumstances, the
statement is the product of the accused’s free and rational choice.” United States
v. Garcia Abrego, 141 F.3d 142, 170 (5th Cir. 1998) (citation omitted). Where a
defendant challenges the voluntariness of the confession, the burden is on the
government to prove, by a preponderance of the evidence, that the statement
made was voluntarily. Id. In considering a ruling on a motion to suppress, we
review the district court’s factual findings for clear error and its legal conclu-
sions de novo. See United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002).
       The 2008 form included a statement, in English and Spanish, that the
declarant had received a Miranda warning and chose to waive those rights. On
the form, Montalvo-Rangel affixed his initials next to the Spanish waiver of his
Miranda rights and, at the end of the form, affirmed the entirety of the docu-
ment—including his understanding of his Miranda rights and his decision to
waive them. Absent any credible contrary evidence, Montalvo-Rangel’s attesta-
tion in the document itself is sufficient, under a preponderance-of-evidence stan-
dard, to show that the confession was given freely and voluntarily.
       Montavlo-Rangel, however, argues that the admission was not voluntary
because it was the result of a deliberate two-step interrogation strategy,3 which,
generally speaking, is a strategy by which officials interrogate an individual
without administering a Miranda warning, obtain an admission, administer a


       2
        (...continued)
that he witnessed).
       3
        See Missouri v. Seibert, 542 U.S. 600, 611 (2004) (plurality). “Seibert requires the sup-
pression of a post-warning statement only where a deliberate two-step strategy is used and
no curative measures are taken.” United States v. Courtney, 463 F.3d 333 (5th Cir. 2006) (cit-
ing Seibert, 542 U.S. at 622). See also United States v. Nunez-Sanchez, 478 F.3d 663 (5th Cir.
2007) (holding that a confession was voluntary even though federal agents had initially ques-
tioned Nunez without administering a Miranda warning, because there was no evidence of a
deliberate two-step interrogation strategy).

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                                       No. 10-50385

Miranda warning, and then obtain the same admission again.
       The only evidence Montalvo-Rangel offers for this argument, however, is
the circumstances surrounding the statements on the 2010 form, which was
excluded at trial on the ground that it was the product of a two-step interroga-
tion. Because Montalvo-Rangel offers no evidence indicating that the 2008 form
was also the product of a two-step interrogation strategy, his argument fails.4
       In light of the Miranda warning on the form and the absence of specific
evidence of the use of a two-step interrogation strategy when the statement was
transcribed, the government has satisfied its burden of showing that the confes-
sion was given freely and voluntarily.
       AFFIRMED.




       4
        Montalvo-Rangel does point to testimony from an ICE agent made during the hearing
on admitting the 2010 form into evidence: The agent testified that the process used to fill out
the 2010 form was “proper practice.” That singular statement, however, is insufficient to cast
doubt on the propriety of the 2008 form. There is nothing more in the record to indicate what
the agent meant by “proper practice,” let alone any evidence indicating that the two-step inter-
rogation approach was the “proper practice” of the agents, and office, that had recorded Mon-
talvo-Rangel’s statements in 2008.

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