                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50556

              Plaintiff - Appellee,              D.C. No. 3:14-cr-01030-CAB-1

  v.
                                                 MEMORANDUM*
SALVADOR GUTIERREZ-SALINAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                  Cathy A. Bencivengo, District Judge, Presiding

                            Submitted February 4, 2016
                               Pasadena, California

Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Defendant-appellant Salvador Gutierrez-Salinas appeals from his alien

reentry conviction under 8 U.S.C. § 1326. Gutierrez was found guilty following a

jury trial and sentenced to forty-six months’ imprisonment. On appeal, he objects

to evidentiary decisions made by the district court, to the court’s instructions of

law, and to his sentence.

      First, Gutierrez objects to the admission of two Records of Sworn

Statements (“RSSs”) from his Alien File (“A-file”) into evidence. The first RSS

was taken on May 30, 2013 (the “2013 RSS”), and the other was taken on March 9,

2014 (the “2014 RSS”). The district court admitted the RSSs over Gutierrez’s

hearsay objections, finding that the RSSs were admissions of a party opponent

under Fed. R. Evid. 801(d)(2). Gutierrez argues that the RSSs were not admissible

under Fed. R. Evid. 802(d)(2) because they are in English and he neither writes nor

speaks English. Gutierrez also argues that their admission violated the

Confrontation Clause.

      This court reviews whether the district court correctly construed the hearsay

rule de novo. United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.

2001). It reviews the admission of evidence under an exception to the hearsay rule




                                           2
for abuse of discretion. Id. Alleged violations of the Confrontation Clause are

reviewed de novo. Id.


      Although Gutierrez signed both RSSs, a signature is insufficient to establish

adoption of a form for purposes of Fed. R. Evid. 801(d)(2)(B) if there is “a

considerable language barrier, and [the evidence does] not support an inference

that the form was read to [the signatory] . . . [or] that the form was a verbatim

record of what [the signatory] said.” United States v. Orellana-Blanco, 294 F.3d

1143, 1148 (9th Cir. 2002). At Gutierrez’s trial, the translator and administrating

officer of the 2013 RSS testified that she went through the entire form with

Gutierrez in Spanish and then recorded his answers verbatim in English. This

testimony, coupled with Gutierrez’s signature, is sufficient to establish his

adoption of the 2013 RSS for purposes of Fed. R. Evid. 801(d)(2)(B). Because

Gutierrez adopted the 2013 RSS, the Confrontation Clause does not bar its

admission. Accordingly, the district court properly admitted the 2013 RSS.


      No translator or administrating officer testified with respect to the 2014

RSS, and there is insufficient evidence in the record to conclude that the 2014 RSS

was read to Gutierrez or that it was a verbatim record of what he said. Therefore,

                                           3
Gutierrez’s signature is insufficient to establish his adoption of the 2014 RSS.

Moreover, there is insufficient evidence to conclude that Gutierrez adopted the

2014 RSS solely on the basis of the accuracy of the translation. To evalute the

accuracy of the translation, the court applies the four factors given in United States

v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991). Because of the absence of

evidence regarding the motives or qualifications of the translator of the 2014 RSS,

only two of the four Nazemian factors can be applied. The fact that the government

supplied the translator weighs in Gutierrez’s favor, and Gutierrez’s subsequent

actions weigh modestly in favor of the government. Id. With these factors in rough

equipoise and the others unknown, this court cannot conclude that the statements in

the 2014 RSS were accurate translations of what Gutierrez said. Accordingly, the

2014 RSS cannot be attributed to Gutierrez and was inadmissible hearsay.


      The admission of the 2014 RSS violated the Confrontation Clause if it is

considered testimonial. Testimonial statements include “material such as affidavits

. . . or similar pretrial statements that declarants would reasonably expect to be

used prosecutorially.” Crawford v. Washington, 541 U.S. 36, 51 (2004). As the

2014 RSS is, on its face, an affidavit, most people would have reasonably expected


                                           4
it to be used prosecutorially. Moreover, the Confrontation Clause requires that

defendants be given a fair opportunity to cross-examine the declarants of

testimonial statements used against them. Id. at 68. Here the 2014 RSS cannot be

attributed to Gutierrez, rather it was the declaration of the form’s author. But the

author did not testify and Gutierrez had no opportunity to cross-examine him.

Accordingly, admission of the 2014 RSS violated the Confrontation Clause.


      However, the admission of the 2014 RSS does not require reversal because it

was harmless error beyond a reasonable doubt. See United States v. Pena-

Gutierrez, 222 F.3d 1080, 1089 (9th Cir. 2000). The contents of the admissible

2013 RSS and the inadmissible 2014 RSS were essentially identical. There is no

fact or inference the jury could have relied upon from the 2014 RSS that the 2013

RSS or testimony from government witnesses does not supply. Accordingly, the

admission of the 2014 RSS was harmless error, and this court will not vacate

Gutierrez’s conviction solely on the basis of the improperly admitted form.


      Gutierrez also objects that the district court denied his request to instruct the

jury on the differences between the burdens of proof that apply in immigration

proceedings and criminal trials. This court reviews jury instructions de novo “to

                                           5
determine whether they adequately presented the defendant’s theory of the case.”

United States v. Bussell, 414 F.3d 1048, 1058 (9th Cir. 2005). But it reviews the

precise formulation of the instructions only for an abuse of discretion. Id. The

government may rely on documents from an A-file to prove alienage if a jury is

properly instructed on the reasonable doubt standard. See United States v. Ruiz-

Lopez, 749 F.3d 1138, 1142 (9th Cir. 2014).


      The district court gave the Ninth Circuit’s model jury instruction on the

reasonable doubt standard. See 9th Cir. Crim. Jury Intr. 3.2 (2010). The district

court also gave the Ninth Circuit’s model jury instructions on violations of 18

U.S.C. § 1326(a) and on statements by a defendant. See 9th Cir. Crim. Jury Intr.

4.1, 9.8 (2010). These instructions made clear that the government had to prove

each element of an illegal reentry violation beyond a reasonable doubt. Gutierrez

was free to argue that the government had not done so, and the jury instructions

adequately presented that possibility. The district court did not abuse its discretion

by using Model Jury Instructions. Accordingly, the district court’s instructions of

law were sound.




                                           6
      Gutierrez also argues that the Ninth Circuit’s model jury instruction on

reasonable doubt is defective. This court has repeatedly upheld the current Ninth

Circuit model jury instructions, as well as similar jury instructions. See United

States v. Alcantara-Castillo, 788 F.3d 1186, 1198 n.4 (9th Cir. 2015). There is no

reversible defect in the Ninth Circuit’s model jury instruction on reasonable doubt.


      Gutierrez also objects that admission of his statements to Border Patrol

Agent Christopher Karem violated Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda warnings are required when an individual is interrogated in custody.

However, the Ninth Circuit has repeatedly held that brief questioning near the

border is a non-custodial Terry stop that does not trigger Miranda. See, e.g., United

States v. Medina-Villa, 567 F.3d 507, 519-20 (9th Cir. 2009); United States v.

Galindo-Gallegos, 244 F.3d 728, 732 (9th Cir. 2001). Agent Karem briefly

questioned Gutierrez just over the border, based on a reasonable suspicion of

illegal entry. Accordingly, no Miranda warnings were required, and Gutierrez’s

statements were admissible.


      Gutierrez also claims that the district court erred in denying his motion to

redact the word “alien” from documents and testimony because the use of the word

                                          7
“alien” precluded him from fully presenting a defense and constituted improper

vouching by government witnesses. This court has repeatedly held that A-File

documents are admissible in § 1326 cases. See, e.g., Ruiz-Lopez, 749 F.3d at 1142.

The jurors in this case were explicitly instructed that Gutierrez’s alienage was an

element of the alleged crime and that the government had to prove every element

beyond a reasonable doubt. Jurors are not so fragile as to be overwhelmed by use

of the term “alien” in documents and testimony. The government’s conduct in this

case does not approach impermissible vouching. See United States v. Sarkisian,

197 F.3d 966, 989-900 (9th Cir. 1999).


      Finally, Gutierrez claims that his forty-six month sentence under 8 U.S.C. §

1326(b)(2) violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because his

prior conviction for alien smuggling was not submitted to the jury and proven

beyond a reasonable doubt. The Supreme Court and the Ninth Circuit have

repeatedly reaffirmed that prior convictions resulting in increased sentences need

not be submitted to a jury or proven beyond a reasonable doubt. See, e.g., Alleyne

v. United States, 133 S. Ct. 2151, 2160 n.1 (2013); Almendarez-Torres v. United




                                          8
States, 523 U.S. 224 (1998); United States v. Leyva-Martinez, 632 F.3d 568, 569

(9th Cir. 2011). Accordingly, Gutierrez’s sentence was proper.


      AFFIRMED.




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