     Case: 17-11490   Document: 00514794218        Page: 1   Date Filed: 01/14/2019




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

                                    No. 17-11490                      FILED
                                                               January 14, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

IGNACIO ARELLANO-BANUELOS,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Ignacio Arellano-Banuelos appeals his conviction by a jury for illegal
reentry. He argues that the district court erred by denying his motion to
suppress his confession, preventing him from presenting a statute of
limitations defense, striking a prospective juror for cause, and admitting into
evidence a certificate of non-existence of record. We remand for the district
court to make additional findings as to whether Arellano-Banuelos was “in
custody” within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966). We
do not reach the other issues at this time.
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                                No. 17-11490
                                      I.
      Arellano-Banuelos was born in Mexico in 1981 and entered the United
States as a child. In 2001, he pleaded guilty to aggravated robbery and was
sentenced to 10 years imprisonment. He was deported to Mexico in 2009, but
later reentered the United States. On May 7, 2015, he was arrested by Texas
law enforcement officers on an outstanding warrant. United States
Immigration and Customs Enforcement (ICE) was notified of Arellano-
Banuelos’s arrest, and placed a detainer on him the next day.
      In July 2015, Arellano-Banuelos pleaded guilty in state court to
improper photography or visual recording and to attempted evading arrest. He
was sentenced to 15 months imprisonment on each count. In August 2015,
Arellano-Banuelos was interviewed in state prison by Norberto Cruz, an agent
with ICE’s Criminal Alien Program. The interview took place in an office
within the prison, and Arellano-Banuelos was brought in by a prison guard.
The prison guard remained present during the interview. According to Agent
Cruz, he told Arellano-Banuelos that he had the right to refuse to answer
questions. But it is undisputed that Agent Cruz did not provide Arellano-
Banuelos complete Miranda warnings.
      At the time of the interview, Agent Cruz was aware that Arellano-
Banuelos had been previously removed from the United States and that he was
subject to an ICE detainer. Agent Cruz asked Arellano-Banuelos a series of
questions, including his country of citizenship, place of birth, whether he had
ever been ordered deported, when he last entered the United States, and
whether he ever applied to the Attorney General for permission to reenter the
United States after he was deported. Agent Cruz recorded Arellano-Banuelos’s
answers to these questions on an affidavit form, and Arellano-Banuelos signed
the affidavit.


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                                   No. 17-11490
      Agent Cruz’s supervisor later referred Arellano-Banuelos for criminal
prosecution for illegal reentry. On May 4, 2016, Arellano-Banuelos was
released from state prison into ICE custody. On May 25, 2016, he was indicted
for illegal reentry. 1 Before trial, Arellano-Banuelos moved to suppress his
August 2015 admissions to Agent Cruz, arguing that these statements were
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The district
court denied the motion after an evidentiary hearing, holding that the August
2015 interview “was not a custodial interrogation for Miranda purposes.”
      Arellano-Banuelos also filed a motion to dismiss the indictment on
statute of limitations grounds, arguing that federal immigration authorities
had reason to know of his presence in the United States more than five years
before he was indicted. The district court denied the motion. Arellano-Banuelos
later sought to introduce his income tax returns and his son’s birth certificate
into evidence to support a statute of limitations defense. The district court
ruled that this evidence was inadmissible because it was legally irrelevant.
The court later refused Arellano-Banuelos’s request for a jury instruction on
the statute of limitations, reasoning that there was no evidence in the record
that ICE was aware of his presence in the United States more than five years
before his indictment.
      At trial, the government called Agent Cruz to testify about his interview
with Arellano-Banuelos and introduced a copy of the August 2015 affidavit into
evidence. The government argued to the jury that this affidavit demonstrated
that Arellano-Banuelos admitted every element of the offense of illegal reentry.
The government also introduced into evidence a certificate of non-existence of
record (CNR) certifying that there was no record that Arellano-Banuelos
received permission to reenter the United States after his prior removal.


      1     The grand jury returned a superseding indictment on April 4, 2017.
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                                      No. 17-11490
Priscilla Dobbins, an officer with United States Citizenship and Immigration
Services (USCIS), testified that she signed the CNR and attested to the fact
that a record search was conducted to attempt to locate an application for
permission to reenter. Arellano-Banuelos did not object to the admission of the
CNR or to Dobbins’s testimony. After hearing this and other evidence, the jury
found Arellano-Banuelos guilty of illegal reentry. He was sentenced to 66
months imprisonment.
                                             II.
       Arellano-Banuelos challenges the district court’s denial of his motion to
suppress his August 2015 affidavit and admissions to Agent Cruz. The
Supreme Court held in Miranda v. Arizona that “the Fifth and Fourteenth
Amendments’ prohibition against compelled self-incrimination require[s] that
custodial interrogation be preceded by advice to the putative defendant that he
has the right to remain silent and also the right to the presence of an attorney.”
Edwards v. Arizona, 451 U.S. 477, 481–82 (1981). Miranda warnings are
required only if an individual is both “in custody” and “subjected to
interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980).
       Arellano-Banuelos moved to suppress his admissions on the grounds
that he was questioned while in custody without the benefit of Miranda
warnings. After an evidentiary hearing, the district found that Arellano-
Banuelos was not subjected to a custodial interrogation and denied the
motion. 2 When considering the denial of a motion to suppress, “this Court



       2       Over a month after oral argument, the government submitted a letter to the
court arguing for the first time that any Miranda error was “invited error” because Arellano-
Banuelos introduced a copy of the affidavit into evidence. Arellano-Banuelos, referring to
other portions of the record and citing caselaw, contends that he did not waive his challenge
to the suppression ruling. The government previously described the Miranda issue in initial
briefing as a “preserved issue with de novo review.” Even had the government not explicitly
asserted that the Miranda issue was preserved, “we generally do not consider contentions
raised for the first time at oral argument.” Martinez v. Mukasey, 519 F.3d 532, 545 (5th Cir.
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                                       No. 17-11490
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594
(5th Cir. 2014).
                                              A.
       We first consider whether Agent Cruz’s August 2015 interview with
Arellano-Banuelos was an interrogation for purposes of Miranda. The
government argued before the district court that Cruz’s questioning was not
an interrogation because it was intended only to verify information for an
administrative deportation, not to elicit incriminating statements. In response,
Arellano-Banuelos asserted that an investigating officer’s subjective intent is
not determinative and that Miranda warnings are required whenever the
officer is aware that the information sought is potentially incriminating.
       In its oral denial of the motion to suppress, the district court concluded
that Miranda warnings were not required because Agent “Cruz’s subjective
motivation was purely administrative” and “generally the purpose of the
screening interview is administrative.” The district court also found that
“[w]hether or not there is any decision made to prosecute criminally is not
made by the people in the screening function” and “at the time of the interview
there was no investigation into the defendant’s criminality.”




2008). We are even more reluctant to consider arguments raised after oral argument is
complete and the case has been submitted for decision. The proper time to closely examine
the record and develop legal defenses is before the completion of briefing, not in the months
after oral argument. The issue presented in the government’s letter is based on the trial
record and could easily have been addressed in the initial briefing. See United States v.
Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017) (declining to consider an argument not raised
in the appellee brief when “the facts supporting the Government’s argument . . . were readily
available prior to briefing”). The government acknowledges that this issue was not raised in
briefing or at argument, but points to no “exceptional circumstances,” Silber v. United States,
370 U.S. 717, 718 (1962), or “substantial public interests,” Guillen-Cruz, 853 F.3d at 777,
warranting consideration of its late-raised argument. We therefore decline to consider the
government’s new theory.
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                                  No. 17-11490
       As the Supreme Court has explained, “the term ‘interrogation’ under
Miranda refers not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Innis, 446 U.S. at 301 (emphasis
added); see also Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir. 1989)
(“Interrogation is defined as words or actions that the police should know are
reasonably likely to elicit an incriminating response from the suspect.”). This
inquiry is “focuse[d] primarily upon the perceptions of the suspect, rather than
the intent of the police.” Innis, 446 U.S. at 301. Although an officer’s subjective
intent may be relevant to what an officer should know, proof of subjective
intent is not required to establish that an interrogation occurred. Id. at 301,
301 n.7.
      That the initial purpose of an investigation is civil rather than criminal
does not render Miranda inapplicable. In Mathis v. United States, 391 U.S. 1
(1968), the Supreme Court held that Miranda warnings were required when a
government revenue agent questioned an inmate as part of a tax investigation.
The Court acknowledged that “a ‘routine tax investigation’ may be initiated for
the purpose of a civil action rather than criminal prosecution.” Id. at 4. But it
“reject[ed] the contention that tax investigations are immune from” Miranda,
noting that “tax investigations frequently lead to criminal prosecutions, just as
the one here did.” Id. The Court observed that “the investigating revenue agent
was compelled to admit” that “there was always the possibility during his
investigation that his work would end up in a criminal prosecution.” Id.
      In this case, Agent Cruz’s own testimony makes clear that he should
have known that his questioning of Arellano-Banuelos was likely to elicit
incriminating responses. Agent Cruz testified that he reviewed Arellano-
Banuelos’s file before the interview, and he was aware of Arellano-Banuelos’s
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                                  No. 17-11490
prior removal from the United States. He also testified that, as part of his work
as an ICE deportation officer, he was aware of the offense of illegal reentry.
Like the investigating revenue officer in Mathis, Agent Cruz acknowledged
that he was aware that someone he interviewed could later be referred for
prosecution. Id.
      Notably, Agent Cruz began the August 2015 interview by telling
Arellano-Banuelos that he already had his file and had “identified him as
somebody that had been removed before.” Cruz’s questioning then elicited a
confession to every element of the crime of illegal reentry. Specifically,
Arellano-Banuelos admitted that (1) he was an alien; (2) he was previously
deported; (3) he never applied to the Attorney General for permission to reenter
the United States after being deported; and (4) he reentered the United States.
See 8 U.S.C. § 1326(a); United States v. Martinez-Rios, 595 F.3d 581, 583 (5th
Cir. 2010). At trial, the government relied on the August 2015 affidavit, among
other evidence, to argue to the jury that Arellano-Banuelos had admitted his
guilt to every element of the offense.
      As with tax inquiries, immigration investigations into previously
removed aliens “frequently lead to criminal prosecutions, just as the one here
did.” Mathis, 391 U.S. at 4. Agent Cruz was aware of the possibility that
Arellano-Banuelos could be referred for prosecution, and he should have
known that his questions were highly likely to elicit incriminating responses.
Under these circumstances, it is immaterial that Cruz’s supervisor—rather
than Cruz himself—made the decision to refer Arellano-Banuelos for
prosecution. Nor is it determinative that no criminal investigation was
underway at the time of the interview. See id. (noting that the criminal
investigation began eight days after the last interview).
      The government offers no persuasive basis to distinguish Mathis from
the facts of this case. It relies primarily on United States v. Rodriguez, 356 F.3d
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                                 No. 17-11490
254, 258–60 (2d Cir. 2004), and United States v. Salgado, 292 F.3d 1169 (9th
Cir. 2002), to argue that immigration screening interviews do not constitute
interrogation. But these cases involved interviews with immigration officers
that took place before the defendant illegally reentered the United States. The
Second and Ninth Circuits therefore concluded that immigration officials had
no reason to believe that the information they were gathering would
incriminate the defendants in a later prosecution for illegal reentry. See
Rodriguez, 356 F.3d at 260 (distinguishing Mathis because there was “no basis
in the record to conclude that Agent Smith knew or should have known that
the results of his interview would be used to support criminal charges resulting
from conduct of Rodriguez—conduct that would not take place until three years
thereafter”); Salgado, 292 F.3d at 1172–73 (explaining that the immigration
officer “had no reason to believe” that Salgado would later reenter the United
States illegally and be subject to prosecution for illegal reentry). Here, by
contrast, Agent Cruz was aware at the time of the interview that Arellano-
Banuelos had a prior removal and could be prosecuted for illegal reentry.
      Although we have recognized a “routine booking exception” to Miranda,
United States v. Virgen-Moreno, 265 F.3d 276, 293 (5th Cir. 2001), the
exception does not apply here. Miranda warnings are not required when an
officer asks only “routine booking question[s] . . . to secure the biographical
data necessary to complete booking or pretrial services.” Pennsylvania v.
Munoz, 496 U.S. 582, 601 (1990) (plurality opinion) (internal quotation
omitted). “The permissible booking questions include data such as a suspect’s
name, address, height, weight, eye color, date of birth, and current age.”
Presley v. City of Benbrook, 4 F.3d 405, 408 (5th Cir. 1993); see also Virgen-
Moreno, 265 F.3d at 293. “[Q]uestions designed to elicit incriminatory
admissions are not covered under the routine booking question exception.”
Virgen-Moreno, 265 F.3d at 293–94.
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                                  No. 17-11490
      Arellano-Banuelos was booked into state prison several months before
his interview with Agent Cruz, and the government has not argued that the
August 2015 ICE interview was a “booking” interview. Even if we were to
assume that the interview resembled a booking, Agent Cruz’s questions to
Arellano-Banuelos exceeded the scope of the routine booking exception. Cruz’s
questioning went beyond basic biographical information to include inquiries
into whether Arellano-Banuelos had been previously deported and whether he
had received permission from the Attorney General to reenter the United
States. We are aware of no authority suggesting that such questions can be
considered routine booking questions.
      In light of Agent Cruz’s knowledge of Arellano-Banuelos’s prior removal
from the United States and the incriminating nature of his questions, we hold
that the August 2015 interview was an interrogation under Miranda.
                                        B.
      Even in the context of an interrogation, Miranda warnings are not
required unless an individual is “in custody for the purposes of Miranda.”
United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015). Custody is a term
of art, and prison inmates are not automatically considered “in custody” within
the meaning of Miranda caselaw. See Maryland v. Shatzer, 559 U.S. 98, 114
(2010). “When a prisoner is questioned, the determination of custody should
focus on all of the features of the interrogation” to determine whether the
circumstances of the interview “are consistent with an interrogation
environment in which a reasonable person would have felt free to terminate
the interview and leave.” Howes v. Fields, 565 U.S. 499, 514–15 (2012)
(internal quotation omitted). In the prison context, a prisoner is considered free
to leave if he is free to “return[] to his normal life” within the prison. Shatzer,
559 U.S. at 114.


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                                  No. 17-11490
      Custody determinations under Miranda present “a mixed question of law
and fact.” Thompson v. Keohane, 516 U.S. 99, 102 (1995). “Relevant factors
include the location of the questioning, its duration, statements made during
the interview, the presence or absence of physical restraints during the
questioning, and the release of the interviewee at the end of the questioning.”
Fields, 565 U.S. at 509 (citations omitted). The interview in this case took place
in an office within the prison. Agent Cruz and another ICE agent conducted
interviews in the same room simultaneously. Arellano-Banuelos was not in
handcuffs, although a prison guard was present during the interview. The
length of the interview is not apparent from the record. Agent Cruz testified
that he told Arellano-Banuelos that he had the right to refuse to answer
questions. But we perceive no evidence in the record as to whether Arellano-
Banuelos was told that he was free to leave the interview.
      In summarizing its reasons for denying the motion to suppress, the
district court stated that, “although certainly as a factual matter the defendant
was in custody, meaning he couldn’t get up and walk out, he was not required
to cooperate or to speak with Agent Cruz, and therefore I find that this was not
a custodial interrogation for Miranda purposes.” The district court made no
further findings on the custody issue. From this record, it is unclear whether
the district court made a custody determination; and if so, whether the district
court’s custody determination was based on an analysis of all the
circumstances of the interrogation or solely on Arellano-Banuelos’s status as a
prisoner.
      Because the district court’s factual findings provide an inadequate basis
for appellate review, we remand for the district court to enter a supplemental




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                                       No. 17-11490
order on the custody issue. 3 United States v. Cole, 444 F.3d 688, 690 (5th Cir.
2006); United States v. Runyan, 275 F.3d 449, 468 (5th Cir. 2001). The district
court may reopen the suppression hearing to take additional evidence. United
States v. Chavis, 48 F.3d 871, 873 (5th Cir. 1995). Once the record has been
supplemented, the case shall be returned to this court for further proceedings.
See Runyan, 275 F.3d at 468. We do not reach the other issues raised in this
appeal at this time.
                                             III.
       We REMAND to the district court with instructions that, within sixty
days after the entry of this remand, it provide a supplemental order setting
forth its findings as to whether Arellano-Banuelos was in custody under
Miranda v. Arizona. We retain jurisdiction over this appeal.




       3       We note that Miranda violations are subject to harmless error analysis. See
Harryman v. Estelle, 616 F.2d 870, 875 (5th Cir. 1980). But it is the government’s burden to
establish that a constitutional error is harmless beyond a reasonable doubt. See United States
v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011); United States v. Akpan, 407 F.3d 360, 377 (5th
Cir. 2005). Here, the government has offered no argument that the denial of the motion to
suppress was harmless.
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