421 F.3d 825 (9th Cir. 2005), 04-50113, United States v. Cervantes-Flores

Docket Nº:04-50113.
Citation:421 F.3d 825
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Roberto CERVANTES-FLORES, Defendant-Appellant.
Case Date:August 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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421 F.3d 825 (9th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Roberto CERVANTES-FLORES, Defendant-Appellant.

No. 04-50113.

United States Court of Appeals, Ninth Circuit.

August 24, 2005

Argued and Submitted May 4, 2005—Pasadena, California.

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[Copyrighted Material Omitted]

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

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

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

Before: James R. Browning, Raymond C. Fisher and Jay S. Bybee, Circuit Judges.



Roberto Cervantes-Flores ("Cervantes") appeals his conviction and sentence for being found in the United States after

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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 (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).


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.


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. Dorr ell, 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

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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...

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