     Case: 12-50738    Document: 00512472501      Page: 1   Date Filed: 12/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                  No. 12-50738
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
UNITED STATES OF AMERICA,                                           December 16, 2013
                                                                      Lyle W. Cayce
                                             Plaintiff - Appellee          Clerk
v.

HUMBERTO HOMERO DURON-CALDERA,

                                             Defendant - Appellant




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


Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Humberto Homero Duron-Caldera appeals his conviction for illegal
reentry.    On appeal, he argues that the district court’s admission of his
grandmother’s affidavit violated his Confrontation Clause rights.                 For the
reasons articulated below, we VACATE Duron-Caldera’s conviction and
REMAND for further proceedings consistent with this opinion.
                                        I.
      On March 16, 2011, a federal grand jury indicted Duron-Caldera with
one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
In order to convict him of this offense, the government was required to prove
that he was an alien. See 8 U.S.C. § 1326(a). Prior to trial, defense counsel
indicated that Duron-Caldera’s defense theory would be that the government
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                                       No. 12-50738
could not prove beyond a reasonable doubt that he did not derive citizenship
through his United States–citizen mother, Maria Rosa Caldera de Duron
(“Maria Caldera”).        Under 8 U.S.C. § 1401, Duron-Caldera could derive
citizenship through Maria Caldera if, prior to his birth in 1962, she had been
physically present in the United States for ten years, at least five of which were
after she reached the age of fourteen. See 8 U.S.C. § 1401(a)(7) (1952) (current
version at 8 U.S.C. § 1401(g)). 1
       To prove Duron-Caldera’s alienage, the government sought to introduce
a sworn affidavit of his maternal grandmother, Francisca Serrato de Caldera
(“Serrato Affidavit”), stating that Maria Caldera lived in the United States
from September 1960 until April 1961. Serrato swore to the affidavit in 1968
in connection with an investigation into document fraud, including the alleged
filing of fraudulent birth certificates by Duron-Caldera’s parents and Serrato.
The affidavit is on an immigration form signed by Serrato, an immigration
officer, and a witness.
       In the affidavit, Serrato recounts the dates and locations of her children’s
and grandchildren’s births; accuses a midwife named Guadalupe San Miguel
of falsely registering the births of four of Serrato’s grandchildren in Texas;
accuses her son and two of her sons-in-law of arranging these false
registrations; refutes an allegation of wrongdoing; and denies any involvement
in arranging the false registrations. 2


       1Derivative citizenship is determined under the law in effect at the time of the child’s
birth. United States v. Cervantes-Nava, 281 F.3d 501, 503 n.2 (5th Cir. 2002). As Duron-
Caldera was born in 1962, the 1952 version of the citizenship statute governs.

       2For instance, Serrato states: “I talked to Maria [Caldera] last Saturday and she told
me that she and [Duron-Caldera’s father] had told you that I arranged with Guadalupe San
Miguel to have the births of Francisco and Ignacio registered in Eagle Pass, Texas. This is
not true because I had nothing to do with it. I told Maria [Caldera] that I was going to tell
you the truth and that is what I am doing. I think they told you this to protect [Duron-
Caldera’s father].” The last sentence is crossed out and initialed.
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                                  No. 12-50738
         Duron-Caldera moved in limine to exclude the Serrato Affidavit. He
argued that admission of the affidavit would violate his Confrontation Clause
rights because the affidavit is testimonial hearsay, Serrato is deceased and
therefore cannot testify at trial, and he had no prior opportunity to cross-
examine Serrato. At a pretrial conference, the district court took the motion
under advisement.
         At trial, Duron-Caldera again objected to admission of the Serrato
Affidavit. During a bench conference, the government candidly acknowledged
that Serrato swore to and made the affidavit in connection with a document
fraud investigation and that Guadalupe San Miguel was criminally prosecuted
and convicted pursuant to that investigation. After hearing arguments from
both sides, the district court overruled the objection on the ground that the
affidavit is nontestimonial because it was not created to accuse Duron-Caldera
in his illegal reentry trial.
         The government introduced the Serrato Affidavit through Maria Flores,
a Citizenship and Immigration Services officer. Flores testified that she found
the Serrato Affidavit in the alien files (“A-Files”) of Duron-Caldera’s parents.
Although she testified that immigration affidavits are “kept in the normal
course of business of defendant affidavits,” she did not testify to, or express any
knowledge of, the circumstances surrounding the creation and narrative
contents of the Serrato Affidavit in particular.
         The government introduced a number of other documents to prove
Duron-Caldera’s alienage, including the denial of his United States citizenship
application; his admission of Mexican citizenship at the time of arrest; and
Maria Caldera’s citizenship application, in which she states that she arrived
in the United States in September 1960, only two years before Duron-Caldera’s
birth.


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                                  No. 12-50738
      The defense, in turn, introduced documents to show that Maria Caldera
may have met the residency requirement. The defense introduced a record of
Maria Caldera’s attendance at a Texas school from 1947 through 1948; her
brother’s 1947 Texas birth certificate; a certificate of her sister’s 1952 baptism
in a Texas church; and an affidavit stating that her father worked in Texas
from 1950 until 1960.
      In its closing argument, the government argued that the Serrato
Affidavit proved that Duron-Caldera did not derive citizenship through his
mother. The district court then gave final instructions and submitted the case
to the jury.   After deliberating ninety minutes, the jury indicated it was
deadlocked.    The district court informed the parties of the deadlock and,
pursuant to their joint request, instructed the jury to continue deliberations.
After deliberating another eighty minutes, the jury returned a guilty verdict.
The court sentenced Duron-Caldera to ninety-two months imprisonment and
three years of supervised release. He filed a timely notice of appeal.
                                        II.
      On appeal, Duron-Caldera claims that the district court’s admission of
the Serrato Affidavit violated his Sixth Amendment right to confront Serrato.
The government responds that admission of the affidavit was proper and that,
alternatively, any error in admitting the affidavit was harmless. This court
reviews Duron-Caldera’s Confrontation Clause objection de novo, subject to
harmless error analysis. See United States v. Polidore, 690 F.3d 705, 710 (5th
Cir. 2012).
                                        A.
      The Confrontation Clause of the Sixth Amendment provides that, “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend VI. In Crawford v.
Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court held that the Clause
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                                  No. 12-50738
bars the admission of “testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had [ ] a prior
opportunity for cross-examination.” In this case, Serrato was unavailable to
testify and Duron-Caldera did not have a prior opportunity for cross-
examination. Accordingly, Duron-Caldera’s Confrontation Clause challenge
turns on whether the Serrato Affidavit is testimonial.
      In Crawford, the Court defined “testimony” as “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.” Id. at
51. The Court then described the “core class of testimonial statements” to
include:
      [1] ex parte in-court testimony or its functional equivalent – that
      is, material such as affidavits, custodial examinations, prior
      testimony that the defendant was unable to cross-examine, or
      similar pretrial statements that declarants would reasonably
      expect to be used prosecutorially; [2] extrajudicial statements . . .
      contained in formalized testimonial materials, such as affidavits,
      depositions, prior testimony, or confessions; [and] [3] statements
      that were made under circumstances which would lead an
      objective witness reasonably to believe that the statement would
      be available for use at a later trial.
Id. at 51-52 (internal quotation marks and citations omitted).
      Following Crawford, the Court adopted the “primary purpose” test for
determining the testimonial nature of statements. See Davis v. Washington,
547 U.S. 813, 822 (2006). Under this test, a statement is testimonial if its
“primary purpose . . . is to establish or prove past events potentially relevant
to later criminal prosecution.” Id.; see also Bullcoming v. New Mexico, --- U.S.
---, 131 S.Ct. 2705, 2714 n.6 (2011).
      Significantly, “the government bears the burden of defeating [a] properly
raised Confrontation Clause objection by establishing that its evidence is
nontestimonial.” United States v. Jackson, 636 F.3d 687, 695 & n.4 (5th Cir.
2011).
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                                      No. 12-50738
                                             B.
       The government has not met its burden in this case to prove that the
Serrato Affidavit is nontestimonial. In describing the “core class of testimonial
statements,” the Court in Crawford mentions affidavits twice. Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 310 (2009). Indeed, the Serrato Affidavit is
“quite plainly” an affidavit. See id. (defining “affidavits” as “declaration[s] of
facts written down and sworn to by the declarant before an officer authorized
to administer oaths” (quoting Black’s Law Dictionary 62 (8th ed. 2004))).
Officer Flores identified it as “an affidavit by a witness.” It is entitled “Record
of Sworn Statement in Affidavit Form; Affidavit – Witness,” sworn by the
declarant, signed by an officer authorized to administer oaths, and witnessed
by another. In the affidavit, Serrato recounts the number of years Duron-
Caldera’s mother lived in the United States prior to his birth. This is “the
precise testimony [she] would be expected to provide if called at trial.” Id. The
affidavit is “functionally identical to live, in-court testimony, doing ‘precisely
what a witness does on direct examination.’” Id. at 310-11 (quoting Davis, 547
U.S. at 830).
       The government contends that the Serrato Affidavit is nontestimonial
because it was created for the primary purpose of providing evidence for
immigration, rather than criminal, proceedings. 3 The government, however,


       3 To the extent that the government argues that the affidavit is nontestimonial
because it is a business record, this argument is unavailing. The standard for admissibility
of business records under Federal Rule of Evidence 803(6) is not the standard for determining
the testimonial nature of statements under the Confrontation Clause. See Melendez-Diaz,
557 U.S. at 324 (“Whether or not they qualify as business or official records, the analysts’
statements here . . . were testimony against petitioner, and the analysts were subject to
confrontation under the Sixth Amendment.”); Jackson, 636 F.3d at 692 n.2.
         Regardless, Serrato’s statements contained in the affidavit, as well as Flores’s
foundation testimony affirming the affidavit as a “defendant affidavit,” would not meet the
business records exception to the rule against hearsay, although the affidavit might qualify
as an ancient document under Rule 803(16) or a statement of family history under Rule
804(b)(4). See Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 279 (5th Cir. 1991) (“The
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                                       No. 12-50738
has not met its burden to prove this assertion.                The record reveals little
regarding the circumstances surrounding the creation of the affidavit. Serrato
is deceased.      Others present for its creation – the immigration officer,
interpreter, and witness – did not testify at the pretrial conference or at trial.
If the government has files regarding the fraud investigation, it did not share
them with the court.
       The evidence we do have is inconclusive.                  The affidavit is on an
immigration form signed by an immigration officer. Yet, documents prepared
by immigration officers on immigration forms can be testimonial if created for
use at a later criminal trial. See, e.g., United States v. Martinez-Rios, 595 F.3d
581, 586 (5th Cir. 2010) (finding that a Certificate of Nonexistence of Record
from the defendant’s A-File was testimonial). There is evidence in this case to
suggest that the affidavit was created for use at a later criminal trial,
including: (1) the government’s concession that the affidavit was taken as part
of a document fraud investigation that resulted in a criminal prosecution and
conviction, and (2) the affidavit itself, in which Serrato exculpates herself and
inculpates four others in the fraud.
       Based on our review of the record, we conclude that the government has
failed to establish that the Serrato Affidavit was not created for the primary
purpose of providing evidence for a later criminal trial. See Jackson, 636 F.3d
at 696-97. Because the government has not met its burden to prove that the
affidavit is nontestimonial, the district court erred in admitting the affidavit.



business records exception to the hearsay rule applies only if the person who makes the
statement is himself acting in the regular course of business.”) (internal quotation marks and
citation omitted); United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982) (“[I]f the source
of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the
business record.”); see also Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (finding, prior to the
codification of the federal rules of evidence, that an accident report prepared by a railroad
employee did not qualify as a business record because it was “calculated for use essentially
in the court, not in the business”).
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                                      No. 12-50738
                                             C.
       The    government       also   contends     that    the    Serrato    Affidavit    is
nontestimonial because it was not made to “accuse” Duron-Caldera of illegal
reentry.     The government correctly observes that when the affidavit was
created forty years ago, neither Serrato nor law enforcement could have
anticipated that the contents of the affidavit would inculpate Duron-Caldera.
The government cites Williams v. Illinois, --- U.S. ---, 132 S.Ct. 2221 (2012) in
support of this argument. In Williams, four Justices, referred to here as the
plurality, expressed support for a primary purpose test that would find
testimonial only statements “having the primary purpose of accusing a
targeted individual of engaging in criminal conduct.” Id. at 2242-43.
       We decline to adopt the government’s proposed “accusation” test for a
number of reasons. First, in Williams, five Justices expressly rejected this test.
See id. at 2262 (Thomas, J., concurring) (“The [plurality’s] new primary
purpose test . . . lacks any grounding in constitutional text, in history, or in
logic.”); id. at 2273 (Kagan, J., dissenting) (writing for Justices Scalia,
Ginsburg, and Sotomayor) (“Where [the plurality’s] test comes from is anyone’s
guess. Justice Thomas rightly shows that it derives neither from the text nor
the history of the Confrontation Clause.”). For this same reason, the plurality’s
test in Williams would not be controlling under Marks v. United States, 430
U.S. 188, 193 (1977). See United States v. James, 712 F.3d 79, 95 (2d Cir.
2013). 4


       4 Ordinarily, “[w]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding of the Court may be
viewed as the position taken by those Members who concurred in the judgment on the
narrowest grounds.” Marks, 430 U.S. at 193 (internal quotation marks and citation omitted).
The Marks principle, however, is only workable where there is some “common denominator
upon which all of the justices of the majority can agree.” United States v. Eckford, 910 F.2d
216, 219 n.8 (5th Cir. 1990); see also United States v. Johnson, 467 F.3d 56, 63-64 (1st Cir.
2006) (“Marks is only workable – one opinion can be meaningfully regarded as ‘narrower’
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                                       No. 12-50738
       Second, along with these five Justices, we do not find support for the
proposed test in the text of the Confrontation Clause. The Sixth Amendment
provides a criminal defendant (“the accused”) with the right “to be confronted
with the witnesses against him.” U.S. Const. amend VI (emphasis added). The
textual juxtaposition, therefore, is not between “the accused” and his “accuser”;
it is between “the accused” and “the witnesses against him.” To the extent
Serrato was a witness (discussed earlier), she “certainly provided testimony
against petitioner, proving one fact necessary for his conviction” – his alienage.
See Melendez-Diaz, 557 U.S. at 313. “The text of the [Sixth] Amendment
contemplates two classes of witnesses – those against the defendant and those
in his favor. . . . [T]here is not a third category of witnesses, helpful to the
prosecution, but somehow immune from confrontation.” Id. at 313-14.
       Third, we do not find support for the proposed test in Confrontation
Clause precedent. Under Supreme Court precedent, a statement is testimonial
if made for the primary purpose of establishing “past events potentially
relevant to later criminal prosecution.”            Davis, 547 U.S. at 822; see also
Bullcoming, 131 S.Ct. at 2714 n.6, 2716-17; Michigan v. Bryant, --- U.S. ----,
131 S.Ct. 1143, 1155-57, 1165 (2011); Melendez-Diaz, 557 U.S. at 310-11;
Crawford, 541 U.S. at 51-52. “None of our cases has ever suggested that, in
addition, the statement must be meant to accuse a previously identified
individual.” Williams, 132 S.Ct. at 2274 (Kagan, J., dissenting); see also Kirby



than another – only when one opinion is a logical subset of other, broader opinions.” (quoting
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc))). In Williams, there is no such
common denominator between the plurality opinion and Justice Thomas’s concurring
opinion. Neither of these opinions can be viewed as a logical subset of the other. Rather,
Justice Thomas expressly disavows what he views as “the plurality’s flawed analysis,”
including the plurality’s “new primary purpose test.” Williams, 132 S.Ct. at 2255, 2262
(Thomas, J., concurring). As Williams does not yield a “narrowest” holding that enjoys the
support of five Justices, it does not provide a controlling rule useful to resolving this case.
James, 712 F.3d at 95; Jenkins v. United States, 75 A.3d 174, 184-89 (D.C. 2013).
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                                       No. 12-50738
v. United States, 174 U.S. 47, 54-61 (1899). 5 In Melendez-Diaz, we perceive
that the Court rejected this requirement. Melendez-Diaz, 557 U.S. at 313
(rejecting respondent’s argument “that the analysts are not subject to
confrontation because they are not ‘accusatory’ witnesses, in that they do not
directly accuse petitioner of wrongdoing”).               Tracing back to Crawford,
moreover, we discern that the Court has identified the concern of the
Confrontation Clause as statements one “would reasonably expect to be used
prosecutorially . . . [or] at a later trial.” Crawford, 541 U.S. at 51-52 (emphasis
added).
       Finally, the proposed test relies on an overly-narrow view of the rationale
behind confrontation. The test assumes that the Confrontation Clause is
designed to protect only against “a defendant-related motive to behave
dishonestly.” See Williams, 132 S.Ct. at 2274 (Kagan, J., dissenting) (quoting
Williams, 132 S.Ct. at 2250 (Breyer, J., concurring)).                 But confrontation
protects against a wide range of witness reliability concerns beyond personal
bias, such as perception, memory, narration, and sincerity. See id. at 2249
(Breyer, J., concurring) (citing 30 C. Wright & K. Graham, Federal Practice
and Procedure § 6324, pp. 44-49 (1997)); see also Melendez-Diaz, 557 U.S. at
319 (“Confrontation is designed to weed out not only the fraudulent analyst,
but the incompetent one as well.”). The Confrontation Clause commands only




       5 In its brief, the government cites language from a number of cases to support its
proposed test, including United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012); United
States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009); and United States v. Honken, 541 F.3d
1146, 1160 (8th Cir. 2008). These cases all predate Williams. More importantly, the
language quoted by the government was not essential to the holdings of these courts. None
of these courts directly confronted the question presented in this case – whether a statement
is testimonial only if made for the primary purpose of accusing a targeted individual of
engaging in criminal conduct. The same distinguishing features apply to our decision in
United States v. Olguin, 643 F.3d 384, 392 (5th Cir. 2011), which, regardless, relates to
nontestimonial recorded statements by co-conspirators made in furtherance of a conspiracy.
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                                       No. 12-50738
one method of testing these witness-related reliability concerns: “the crucible
of cross-examination.” Crawford, 541 U.S. at 61. 6
                                             D.
       We turn now to the question of whether the district court’s error in
admitting the Serrato Affidavit was harmless. A defendant deprived of the
right to confront witnesses against him is entitled to a new trial unless the
government proves beyond a reasonable doubt that the error was harmless;
that is, that “there was [no] reasonable possibility that the evidence
complained of might have contributed to the conviction.” United States v.
Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). Relevant considerations include:
       the importance of the witness’ testimony in the prosecution’s case,
       whether the testimony was cumulative, the presence or absence of
       evidence corroborating or contradicting the testimony of the
       witness on material points, the extent of cross-examination
       otherwise permitted, and of course, the overall strength of the
       prosecution’s case.
Id. (quoting United States v. Rodriguez-Martinez, 480 F.3d 303, 308 (5th Cir.
2007)).
       A number of considerations weigh against a finding of harmlessness.
This is not a case where cross-examination was permitted but improperly
circumscribed. E.g., United States v. Jimenez, 464 F.3d 555, 563 (5th Cir.
2006). Duron-Caldera had no opportunity to cross-examine Serrato and there
was ample grist for cross-examination: Serrato made the statements more
than forty years before trial, some of the statements were self-serving, and the


       6 In its brief, the government remarks that the affidavit does not “inculpate [Duron-
Caldera] in any way.” To the extent that the government implies that the affidavit is
nontestimonial because it is not facially or “inherently inculpatory,” the Court rejected this
argument in Melendez-Diaz and five Justices rejected it in Williams. See Melendez-Diaz, 557
U.S. at 313-14; see also Williams, 132 S.Ct. at 2263 (Thomas, J., concurring); Williams, 132
S.Ct. at 2274 n.5 (Kagan, J., dissenting).
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                                 No. 12-50738
affidavit does not indicate Serrato’s basis of knowledge. These weaknesses, if
probed on cross-examination, could have undermined the reliability of the
affidavit and, in turn, affected the jury’s verdict. See Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986); Jimenez, 464 F.3d at 563.
      The Serrato Affidavit was also an important part of the prosecution’s
case. Duron-Caldera’s derivative-citizenship theory was his sole defense, and
the Serrato Affidavit was one of only two pieces of evidence the government
used to prove that Maria Caldera did not meet the ten-year residency
requirement.   The jury’s initial deadlock suggests that the jury seriously
considered Duron-Caldera’s derivative-citizenship defense.
      Significantly, the government emphasized the affidavit in its closing
argument. The prosecutor told the jury that “[t]he only way [Duron-Caldera]
could have acquired citizenship would have been through his mother.” The
prosecutor then pointed to the “affidavit of the defendant’s grandmother” as
evidence “prov[ing] that did not occur.” In light of the government’s reliance
on the affidavit in closing, “[w]e cannot see how the government can
conclusively show that the tainted evidence did not contribute to the
conviction.” Alvarado-Valdez, 521 F.3d at 342-43; see also Jackson, 636 F.3d
at 697.
      The government contends that any confrontation error was harmless
because the Serrato Affidavit was cumulative.         It is true that Serrato’s
statement is corroborated by Maria Caldera’s citizenship application, in which
she claims she arrived in the United States in 1960. But for evidence to be
considered cumulative in this context, “substantial evidence [must] support[]
the same facts and inferences as those in the erroneously admitted evidence.”
United States v. Demmitt, 706 F.3d 665, 673 (5th Cir. 2013). The Serrato
Affidavit does not meet this standard for two reasons. First, Maria Caldera’s
citizenship application was the only other evidence corroborating Serrato’s
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                                No. 12-50738
statement and it, too, was not subject to cross-examination. No trial witnesses
testified to whether Maria Caldera met the ten-year residency requirement.
Second, there was other evidence contradicting the Serrato Affidavit and
Maria Caldera’s application, including school records, birth certificates, and
baptismal records indicating that Maria Caldera and her family were present
in the United States in the 1940s and 1950s. Based on our review of the record,
we conclude that the government did not prove that the district court’s error
was harmless beyond a reasonable doubt.
                                     III.
      For the foregoing reasons, we VACATE the judgment of conviction and
REMAND for further proceedings consistent with this opinion.




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