U.S. v. Cervantes-Flores

• Decision Date: 24 August 2005
• Docket Number: No. 04-50113.,04-50113.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roberto CERVANTES-FLORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

421 F.3d 825

UNITED STATES of America, Plaintiff-Appellee, v. Roberto CERVANTES-FLORES, Defendant-Appellant.

No. 04-50113.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2005.

Filed August 24, 2005.

COPYRIGHT MATERIAL OMITTED

Robert H. Rexrode, III, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Steven E. Stone, Assistant United States Attorney-Criminal Division, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-03-00484-TJW.

Before BROWNING, FISHER and BYBEE, Circuit Judges.

PER CURIAM.

Roberto Cervantes-Flores ("Cervantes") appeals his conviction and sentence for being found in the United States after deportation in violation of 8 U.S.C. § 1326. Cervantes argues that the district court erred in: (1) denying him the opportunity to present a necessity defense to the jury; (2) refusing to exclude statements he made to a border patrol agent before receiving Miranda warnings; (3) admitting a certificate of nonexistence of record in violation of his Sixth Amendment Confrontation Clause rights in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) — a question of first impression for this circuit; (4) failing to instruct the jury correctly on one of the essential elements of the crime; and (5) enhancing his sentence based on facts neither pled nor found by a jury. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm Cervantes' conviction, but remand his sentence pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005).

I.

In May 1998, United States Border Patrol agents found Cervantes in the United States without proper documentation. He was convicted of improper entry by an alien under 8 U.S.C. § 1325, sentenced to 48 months in custody and removed from the United States from Hidalgo, Texas on January 28, 2003.

One week later, Border Patrol Agent Jason Wardlow reapprehended Cervantes early in the morning near Tecate, California. Wardlow noticed Cervantes walking along the side of a highway and then observed him notice the marked border patrol vehicle and flee. Wardlow jumped from his vehicle and chased Cervantes into the desert for approximately three-quarters of a mile. Upon catching up with him, Wardlow subdued and handcuffed him. Without giving any Miranda warning, Wardlow then asked Cervantes his citizenship, whether he had immigration documents allowing him to be in the United States, and how he crossed the border. Cervantes admitted he was a citizen of Mexico, lacked permission to be in the United States and had entered illegally. Wardlow then walked Cervantes back to Wardlow's vehicle and took him to the Temecula border patrol station.

At the station, Agent Alex Markle advised Cervantes of his Miranda rights, and Agent Nicola Weiss questioned him. Cervantes again admitted he was a citizen of Mexico who had entered the United States without permission. He signed a "Record of Sworn Statement" summarizing his statements.

In October 2003, a jury convicted Cervantes of being a deported alien found within the United States without the consent of the Attorney General, in violation of 8 U.S.C. § 1326. The district court later sentenced him to 96 months imprisonment. Cervantes timely appealed his conviction and sentence to this court.

II.

A. Necessity Defense Properly Excluded

Cervantes appeals the district court's preclusion of his necessity defense at trial. We review the ruling de novo and hold that the district court did not err. United States v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir.2001).

The district court need not submit a defense to the jury where the proffered evidence, construed most favorably to the defendant, would fail to establish all elements of that defense. See United States v. Dorrell, 758 F.2d 427, 430 (9th Cir.1985). "The sole question presented in such situations is whether the evidence, as described in the defendant's offer of proof, is insufficient as a matter of law to support the proffered defense. If it is, then the trial court should exclude the defense and the evidence offered in support." Id.

An offer of proof sufficient to support a necessity defense must permit a reasonable jury to conclude:

(1) that [the defendant] was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.

Arellano-Rivera, 244 F.3d at 1125-26 (internal quotation marks omitted). "If the defendant's offer of proof is deficient with regard to any of the four elements, the district judge must grant the motion to preclude evidence of necessity." Id. at 1126 (internal quotation marks omitted).

The evidence proffered here did not suffice to support a necessity defense as a matter of law. A doctor told Cervantes in the fall of 2002 that he was HIV positive and instructed him to begin making end-of-life decisions. At the time, Cervantes had not been in contact with his children since 1990 and no longer knew where in the United States they lived. Once removed to Mexico, he sought but did not receive help locating his children from an official at the United States consulate in Tijuana. Cervantes re-crossed the border with the intent of traveling to his children's last known place of residence. He believed he had no legal means of entering the United States because customs officials had informed him at the time of his removal that he was not eligible to return under the ordinary application process.

The district court found the offer of proof insufficient because it failed to demonstrate imminent harm. "There was no threat of [im]minent death or serious bodily injury. Your offer of proof was he was diagnosed HIV positive. While he may have a more limited life span than others, there is no indication whatsoever that his threat of death or serious bodily injury was [im]minent, which is what the law required." SER 331.

We agree with the district court that Cervantes' testing positive for HIV did not constitute imminent harm. He failed to demonstrate that the disease created a threat of death or other serious, immediate harm.¹ For the same reason, Cervantes did not show that he was in imminent danger of losing his final opportunity to speak to his children. Accordingly, the district court did not err in precluding a necessity defense.

B. Suppression of Statements Made Prior to Miranda Warning

Cervantes appeals the district court's refusal to suppress statements that he made before he received a Miranda warning. We review denial of a motion to suppress de novo, United States v. Moreno-Flores, 33 F.3d 1164, 1168 (9th Cir.1994), as well as whether a defendant is in custody for Miranda purposes. United States v. Kim, 292 F.3d 969, 973 (9th Cir.2002).

Agent Wardlow had reasonable suspicion to stop Cervantes. While walking along a highway known to be a smuggling route approximately 40 miles north of the United States border, Cervantes saw Wardlow's marked vehicle and immediately turned and attempted to flee. "Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop [someone] in the border area. . . . [B]ehavior may be relevant, as . . . obvious attempts to evade officers can support a reasonable suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ("[I]t was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.").

Given that Wardlow had reasonable suspicion to make a Terry stop, he could ask Cervantes questions "reasonably related in scope to the justification for their initiation." Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An "officer may question [individuals reasonably detained near the border] about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. 2574. Wardlow asked Cervantes about his place of birth, his citizenship, whether he had permission to be in the United States and how he had crossed into the United States. These questions were reasonably limited in scope to determining whether Cervantes had crossed the border illegally. Cervantes sought to suppress only his statements made in response to Wardlow's questions, and he conceded no one asked him additional questions until after Agent Markle read him his Miranda rights.

By handcuffing Cervantes, Agent Wardlow did not convert the Terry stop into a custodial arrest. "Handcuffing a suspect does not necessarily dictate a finding of custody." United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.1981). Where a suspect threatens physical danger or flight, officers may use handcuffs in the course of a Terry stop. See Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir.1996) ("[W]e have only allowed the use of especially intrusive means of effecting a stop in special circumstances, such as. . . where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight. . . ."); United States v. Bautista, 684 F.2d 1286, 1289-90 (9th Cir.1982). Cervantes led Agent Wardlow on a chase away from his car into the desert. Doing so both increased the risk to Wardlow and demonstrated an intention to evade arrest. Under these circumstances,...