     Case: 17-11490    Document: 00514999266       Page: 1   Date Filed: 06/17/2019




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

                                    No. 17-11490                    FILED
                                                                June 17, 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 was convicted by a jury of illegal reentry. On
appeal, he argues that his confession was admitted in violation of Miranda v.
Arizona, 384 U.S. 436 (1966), he was denied the opportunity to present a
statute of limitations defense, the district court erred in striking a prospective
juror for cause, and the admission of a certificate of non-existence of record
violated his rights under the Confrontation Clause.
      In an earlier opinion, we remanded this case to the district court for
additional findings as to whether Arellano-Banuelos was “in custody” for
purposes of Miranda. See United States v. Arellano-Banuelos, 912 F.3d 862
(5th Cir. 2019). Our prior opinion recounts the pertinent factual background.
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                                  No. 17-11490
See id. at 864–65. After considering the district court’s findings and the parties’
supplemental briefs, we now affirm.
                                        I.
                                        A.
      Under Miranda, an individual subjected to “in-custody interrogation”
must first “be warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.” 384 U.S. at 444–45.
These safeguards are required “[b]ecause custodial police interrogation, by its
very nature, isolates and pressures the individual,” and “heightens the risk
that an individual will not be accorded his privilege under the Fifth
Amendment not to be compelled to incriminate himself.” Dickerson v. United
States, 530 U.S. 428, 435 (2000) (cleaned up).
      Arellano-Banuelos’s Miranda claim arises out of an August 2015
interview with Norberto Cruz, a U.S. Immigration and Customs Enforcement
(ICE) agent. At the time of the interview, Arellano-Banuelos was serving a
sentence of 15 months’ imprisonment on unrelated state offenses. Cruz and
two other ICE agents traveled to the state prison to interview 23 inmates,
including Arellano-Banuelos. The inmates were escorted to the office in groups
of five. A prison guard stood at the door of the office, which remained open.
Cruz and another ICE agent conducted simultaneous interviews at separate
tables, and a third agent photographed and fingerprinted the inmates after the
conclusion of their interviews. These interviews ordinarily lasted between ten
and thirty minutes, although the parties agree that Arellano-Banuelos’s
interview took about ten to fifteen minutes.
      Cruz interviewed Arellano-Banuelos about his immigration status and
past deportation without providing complete Miranda warnings. Over the
course of this interview, Arellano-Banuelos acknowledged his alienage, his
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                                 No. 17-11490
prior removal, and his lack of permission from the Attorney General to reenter
the United States. Arellano-Banuelos was later charged with illegal reentry,
and he moved to suppress his admissions to Cruz. The district court denied the
motion after finding that the August 2015 interview “was not a custodial
interrogation for Miranda purposes.”
      In a prior opinion, we held that this interview was an “interrogation”
under Miranda because Cruz should have known that his questioning was
“reasonably likely to elicit an incriminating response from the suspect.”
Arellano-Banuelos, 912 F.3d at 866 (quoting Rhode Island v. Innis, 446 U.S.
291, 301 (1980)). We remanded to the district court for additional findings on
the issue of Arellano-Banuelos’s custodial status. Id. at 869. After hearing
further testimony and argument, the district court concluded that Arellano-
Banuelos was not in custody under Miranda during the August 2015 interview.
      We review the district court’s “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). “The clearly erroneous standard
is particularly deferential where denial of the suppression motion is based on
live oral testimony because the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Ortiz, 781 F.3d 221, 226 (5th Cir.
2015) (cleaned up). Further, we consider “the evidence in the light most
favorable to the prevailing party, which in this case is the government.” United
States v. Wright, 777 F.3d 769, 773 (5th Cir. 2015) (quoting United States v.
Santiago, 410 F.3d 193, 197 (5th Cir. 2005)).
                                       B.
      Custody for purposes of Miranda “is a term of art that specifies
circumstances that are thought generally to present a serious danger of
coercion.” Howes v. Fields, 565 U.S. 499, 508–09 (2012). This inquiry “is an
objective one—the subjective intent of the questioners and the subjective fear
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                                  No. 17-11490
of the questioned person are irrelevant.” United States v. Melancon, 662 F.3d
708, 711 (5th Cir. 2011). We first consider whether “‘there is a ‘formal arrest
or restraint on freedom of movement’ of the degree associated with a formal
arrest.” Maryland v. Shatzer, 559 U.S. 98, 112 (2010) (quoting New York v.
Quarles, 467 U.S. 649, 655 (1984)). The Supreme Court has observed that
“[t]his test, no doubt, is satisfied by all forms of incarceration.” Id. Yet, “the
freedom-of-movement test identifies only a necessary and not a sufficient
condition for Miranda custody.” Id. Courts also consider “the additional
question [of] whether the relevant environment presents the same inherently
coercive pressures as the type of station house questioning at issue in
Miranda.” Fields, 565 U.S. at 509.
      Although Arellano-Banuelos was incarcerated at the time of the August
2015 interview, the Supreme Court has instructed that “imprisonment alone
is not enough to create a custodial situation within the meaning of Miranda.”
Id. at 511. The Supreme Court drew this conclusion in part because of the
differences in circumstances between a prisoner serving a lawful sentence and
a suspect who “is arrested in his home or on the street and whisked to a police
station for questioning.” Id. “[T]he ordinary restrictions of prison life, while no
doubt unpleasant, are expected and familiar and thus do not involve the same
‘inherently compelling pressures’ that are often present when a suspect is
yanked from familiar surroundings in the outside world and subjected to
interrogation in a police station.” Id. (quoting Shatzer, 559 U.S. at 103).
Moreover, “[s]entenced prisoners, in contrast to the Miranda paradigm, are not
isolated with their accusers,” and their imprisonment “is relatively
disconnected from their prior unwillingness to cooperate in an investigation.”
Shatzer, 559 U.S. at 113.
      Of course, prisoners sometimes are in custody for Miranda purposes. “An
inmate who is removed from the general prison population for questioning and
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                                  No. 17-11490
is thereafter subjected to treatment in connection with the interrogation that
renders him ‘in custody’ for practical purposes will be entitled to the full
panoply of protections prescribed by Miranda.” Fields, 565 U.S. at 514 (cleaned
up); see also Melancon, 662 F.3d at 711 (explaining that a “prison inmate is not
automatically always ‘in custody’ within the meaning of Miranda, although the
prison setting may increase the likelihood that an inmate is in ‘custody’ for
Miranda purposes”) (cleaned up). The custody determination must “focus on
all of the features of the interrogation,” including “the language that is used in
summoning the prisoner to the interview and the manner in which the
interrogation is conducted.” Fields, 565 U.S. at 514.
      In Fields, the Supreme Court held that a prisoner was not in custody
under Miranda when he was interviewed by two sheriff’s deputies regarding
allegations of sexual abuse of a child. Id. at 502–03, 514. The Court
acknowledged several factors that could support a finding of custody, including
that Fields “was not advised that he was free to decline to speak with the
deputies,” the “interview lasted for between five and seven hours,” the deputies
were armed, and one of the deputies “used a very sharp tone” and once used
profanity. Id. at 515. Other offsetting circumstances, however, led the Court to
determine that Fields was not in custody. Id. “Most important, [Fields] was
told at the outset of the interrogation, and was reminded again thereafter, that
he could leave and go back to his cell whenever he wanted.” Id. Additionally,
Fields “was not physically restrained or threatened,” he “was interviewed in a
well-lit, average-sized conference room,” “the door to the conference room was
sometimes left open,” and he “was offered food and water.” Id. The Court
concluded that “these objective facts are consistent with an interrogation
environment in which a reasonable person would have felt free to terminate
the interview and leave.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,
664–65 (2004)).
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                                       No. 17-11490
                                              C.
       In critical respects, Arellano-Banuelos’s August 2015 ICE interview had
fewer hallmarks of Miranda custody than the interview at issue in Fields. 1 The
interview was much shorter—lasting ten to fifteen minutes rather than five to
seven hours. See id. at 515. Multiple people were present in the interview room,
including another prisoner, and Arellano-Banuelos was not isolated with Cruz.
Cf. Miranda, 384 U.S. at 476 (emphasizing the “compelling influence” of
“lengthy interrogation or incommunicado incarceration”). The ICE agents were
not armed, and the prison guard did not have a firearm. Cf. Fields, 565 U.S. at
515. Although Cruz stated that he knew Arellano-Banuelos had been
previously removed, he did not raise his voice during the interview, use a sharp
tone of voice, or use profanity. Cf. id. at 503, 515.
       Other circumstances are similar to the facts presented in Fields.
Arellano-Banuelos was not restrained during the interview, but he was
escorted to the interview by a prison guard and required to pass through locked
doors. See id. at 502–03; see also id. at 513 (noting that a prisoner may be
“taken, under close guard, to the room where the interview is to be held” but
“such procedures are an ordinary and familiar attribute of life behind bars”).
Arellano-Banuelos was not told in advance that he could decline the interview,
and the district court found that a reasonable person in his position would have
believed he was required to attend the interview. See id. at 515 (noting that
Fields “did not invite the interview or consent to it in advance, and he was not
advised that he was free to decline to speak with the deputies”).
       Arellano-Banuelos points to several factors that he asserts distinguishes
his situation from the interrogation at issue in Fields. First, and most


       1       We base our analysis on the district court’s factual findings as to what occurred
during the interview. Neither party argues that those findings are clearly erroneous, and we
perceive no clear error.
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                                     No. 17-11490
significantly, he emphasizes that he was never explicitly told he was free to
leave the interview room. In Fields, by contrast, the Supreme Court
underscored that the “[m]ost important” factor in its custody determination
was that the prisoner “was told that he was free to end the questioning and to
return to his cell.” Id. at 515–17. This type of straightforward advisement
would certainly have strengthened the government’s case. See Wright, 777
F.3d at 776 (holding that a suspect was not in custody under Miranda in part
because of the “crucial” fact that he was repeatedly told “that he was ‘free to
leave’ and that he ‘wasn’t under arrest’”); see also Ortiz, 781 F.3d at 231
(explaining that statements that a suspect “was not under arrest . . . would
suggest to a reasonable person that he was free to leave, but they are less clear
than the statements in Wright, which answered the question directly”). Yet the
absence of an explicit statement that an interviewee is free to leave does not
compel a finding of Miranda custody. Other statements and circumstances
may similarly suggest to a reasonable person that he can choose to end the
questioning and leave. See Ortiz, 781 F.3d at 231–33.
      Here, Cruz told Arellano-Banuelos that his statement had to be
voluntary and that the interview would terminate if he chose not to speak with
Cruz. Cruz also reviewed a form with Arellano-Banuelos advising him that his
“statement must be freely and voluntarily given” and that any statement “may
be used against [him] in any administrative or criminal proceeding.” 2 Arellano-
Banuelos contends that such warnings are inadequate because Miranda’s
protections apply even absent proof that a statement was in fact involuntary.



      2        Although Arellano-Banuelos presented a different account of Cruz’s
statements at the suppression hearing, he does not dispute on appeal the district court’s
findings as to what was said during the interview. We note that the district court made no
adverse credibility determinations, and we therefore do not rely on the government’s
suggestion that we should disbelieve Arellano-Banuelos’s testimony because he has in the
past received disciplinary infractions.
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                                    No. 17-11490
We agree that telling an interviewee that his statement must be voluntary is
insufficient, alone, to satisfy the concerns underlying Miranda. See, e.g.,
Dickerson, 530 U.S. at 442 (holding that a multi-factor test focused on
“determining the voluntariness of a suspect’s confession” is not an “adequate
substitute for the warnings required by Miranda”). Such advisories are
nonetheless relevant factors in assessing the interview environment.
      Moreover, Cruz did more than advise Arellano-Banuelos that his
statement must be voluntary and that any statements he made could be used
against him. Cruz testified that he tells inmates that they do not have to speak
with him and that, if they do not want to talk to him, the interview will end.
The district court found that Cruz explained this to Arellano-Banuelos. Given
the circumstances of the August 2015 ICE visit, with multiple inmates being
interviewed and processed on a tight time frame, the clear implication of
ending the interview is that Arellano-Banuelos could then leave and return to
his ordinary life in the prison. 3 A reasonable inmate would not expect to be
required to stay in the office after the termination of the interview. Indeed, two
other inmates did refuse to answer Cruz’s questions on the day of Arellano-
Banuelos’s interview, and their interviews terminated. In this context, we
believe that the objective circumstances of the interview were “consistent with
an interrogation environment in which a reasonable person would have felt
free to terminate the interview and leave.” Fields, 565 U.S. at 515 (quotation
omitted).
      Arellano-Banuelos highlights other aspects of the interview that he
contends created an unacceptable risk of coercion. He notes that he was placed
in a holding cell prior to the interview, he was required to stand in the hallway


      3        We emphasize that officer statements must be interpreted in context. In a
different interrogation environment, the statement that someone is free to terminate an
interview may not signify that he is free to leave.
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                                  No. 17-11490
before the interview without leaning on anything, and he was not given a
chance to use the restroom. Arellano-Banuelos also emphasizes, and the
district court found, that the administrative building where the interviews
were held experienced electrical problems that caused the lights to flicker and
interfered with the air conditioning system. Cruz testified that the office was
very hot and he wanted to get through the interviews as quickly as possible.
These facts indicate that the interview process was uncomfortable, and provide
some support for Arellano-Banuelos’s custody argument. Cf. id. at 515 (noting
that Fields “was ‘not uncomfortable’” in the interview room). Critically,
however, these conditions were not tied to Arellano-Banuelos’s cooperation
with Cruz. As discussed above, a reasonable inmate in Arellano-Banuelos’s
position would have believed he could terminate the interview and leave the
office. This exit option substantially reduces the coercive pressures of an
unpleasant interview environment.
      Finally, Arellano-Banuelos contends that his situation is different from
that of Fields because Cruz had “the authority to affect the duration of his
sentence.” See id. at 512. Specifically, Arellano-Banuelos was told that if he
cooperated, this would reduce the amount of time he might spend in ICE
detention before his removal from the United States. This offer may have given
Arellano-Banuelos some “reason to think that the listeners ha[d] official power
over him.” Id. at 512 (quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).
There is no suggestion in the record, however, that Cruz had any authority to
influence the length of Arellano-Banuelos’s state prison sentence. Unlike a
suspect who “may be pressured to speak by the hope that, after doing so, he
will be allowed to leave and go home,” the only benefit that Cruz could offer
was a speedier deportation once Arellano-Banuelos completed his state
sentence. Id. at 511. In light of other factors pointing to an absence of custody,


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                                  No. 17-11490
such an offer does not create the “inherently coercive” interview environment
contemplated by Miranda. Id. at 509.
      Considering all the circumstances of the August 2015 interview, and
viewing the evidence in the light most favorable to the government, we hold
that Arellano-Banuelos was not in custody for purposes of Miranda. We
therefore affirm the district court’s denial of the motion to suppress.
                                       II.
      Arellano-Banuelos next contends that the district court erroneously
prevented him from presenting a statute of limitations defense to the jury. The
statute of limitations for illegal reentry is five years. 18 U.S.C. § 3282(a). The
limitations period “begins to run at the time the alien is ‘found,’ barring
circumstances that suggest that the INS should have known of his presence
earlier.” United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996).
Arellano-Banuelos was indicted in May 2016. Thus, the relevant question is
whether Arellano-Banuelos was “found” in the United States before May 2011.
      For an alien to be “found” in the United States, the “alien’s physical
presence must be discovered and noted by immigration authorities and the
illegality of the alien’s presence must be reasonably attributable to
immigration authorities through the exercise of typical law enforcement
diligence.” United States v. Compian-Torres, 712 F.3d 203, 207 (5th Cir. 2013);
see also Santana-Castellano, 74 F.3d at 597 (explaining that immigration
authorities should know of an alien’s presence if, for example, “he reentered
the United States through an official border checkpoint in the good faith belief
that his entry was legal”). Arellano-Banuelos sought to present a statute of
limitations defense through evidence that he filed income tax returns and that
he put his name on his son’s birth certificate.




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                                       No. 17-11490
       The district court’s decision to admit or exclude evidence is reviewed for
abuse of discretion. 4 See United States v. Walker, 410 F.3d 754, 757 (5th Cir.
2005). Here, the district court properly excluded Arellano-Banuelos’s proposed
evidence as legally irrelevant. We held in Compian-Torres that knowledge of
an alien’s presence by other government officials, including state or federal
authorities, is not imputed to immigration authorities. See 712 F.3d at 207–08.
Arellano-Banuelos attempts to distinguish Compian-Torres as a case about the
sufficiency of the evidence rather than the exclusion of evidence. But the court
in Compian-Torres characterized the issue presented as “a pure question of
law,” and proceeded to resolve the legal question of what it means for an
immigrant to be “found” in the United States. Id. at 207. Under this caselaw,
the district court correctly concluded that Arellano-Banuelos’s tax returns and
his son’s birth certificate are not probative of when he was found in the United
States by immigration authorities.
       For the same reasons, the district court did not abuse its discretion in
refusing to instruct the jury on a statute of limitations defense. See United
States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017) (noting the district court’s
“substantial latitude in formulating jury instructions”). There was no evidence
in the trial record that immigration authorities had actual or constructive
knowledge of Arellano-Banuelos’s presence in the United States before May
2011. See United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (explaining
that the district court may “refuse to give a requested instructor that lacks
sufficient foundation in the evidence”). We perceive no error in the district
court’s rulings on the statute of limitations.



       4       The government asserts that Arellano-Banuelos may have forfeited his
challenge to the district court’s exclusion of evidence because he did not attempt to introduce
the evidence at trial. Because we find no error in the district court’s ruling under any
standard of review, we need not address the forfeiture issue.
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                                 No. 17-11490
                                      III.
      Arellano-Banuelos’s challenge to jury selection is similarly unavailing.
The district court struck a prospective juror for cause after the juror stated
that he would have difficulty being fair and impartial because he believed that
the immigration laws were too harsh. “We review the district court’s ruling as
to juror impartiality only for manifest abuse of discretion.” United States v.
Munoz, 15 F.3d 395, 397 (5th Cir. 1994). Moreover, “[i]n noncapital cases,
removal of a venire member generally is not grounds for reversal unless ‘the
jurors who actually sat were not impartial within the meaning of the Sixth
Amendment.’” United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998)
(quoting United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.
1994)). Arellano-Banuelos has not shown that the district court manifestly
abused its discretion in striking the prospective juror, nor has he offered any
basis to question the impartiality of the jury empaneled in his case.
                                      IV.
      For the first time on appeal, Arellano-Banuelos argues that the
admission of a certificate of non-existence of record (CNR) violated his rights
under the Confrontation Clause. The CNR certified that there is no record that
Arellano-Banuelos received permission to return to the United States following
his prior deportation. Because Arellano-Banuelos did not object to the
admission of the CNR, our review is for plain error. See United States v.
Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). We will find plain error only
if, among other factors, the district court made a “clear or obvious” error.
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018).
      The Confrontation Clause of the Sixth Amendment guarantees a
criminal defendant the right to cross-examine witnesses who provide
testimonial statements, unless the declarant is unavailable and the defendant
had a prior opportunity for cross-examination. See Crawford v. Washington,
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                                  No. 17-11490
541 U.S. 36, 68 (2004). We have held that a CNR qualifies as a testimonial
statement. See Martinez-Rios, 595 F.3d at 586. Arellano-Banuelos therefore
had the right “to be confronted with the analyst who made the certification.”
Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011); see also Martinez-Rios,
595 F.3d at 586 (finding constitutional error because the person who “prepared
the CNR” did not testify at trial).
      Priscilla Dobbins, an officer with U.S. Citizenship and Immigration
Services (USCIS), authored and signed the CNR in this case. She certified that
she had the authority “to ascertain whether there are particular documents in”
an alien’s file. She further attested that USCIS systems were searched to
ensure that no application for permission to reenter the United States after
removal existed in Arellano-Banuelos’s file. Dobbins testified at trial and
Arellano-Banuelos had the chance to cross-examine her, but he chose not to do
so. Arellano-Banuelos argues that the admission of the CNR nonetheless
violated his rights under the Confrontation Clause because Dobbins did not
personally check all the systems that led to the certification. Instead, a staff
member ran the initial checks and created printouts.
      Arellano-Banuelos does not offer legal authority for the proposition that
every individual involved in the preparation of a document such as a CNR must
testify at trial. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1
(2009) (explaining that “it is not the case, that anyone whose testimony may
be relevant in establishing the chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in person as part of the
prosecution’s case”). Because Arellano-Banuelos had an opportunity to cross-
examine the individual who prepared and signed the CNR, he cannot show a
“clear or obvious” Confrontation Clause error.
                                       V.
      The judgment of the district court is AFFIRMED.
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