U.S. v. Gonzalez-Sandoval

• Citation: 894 F.2d 1043
• Decision Date: 18 January 1990
• Docket Number: D,No. 89-50174,GONZALEZ-SANDOVA,89-50174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1043

894 F.2d 1043

UNITED STATES of America, Plaintiff-Appellee, v. Arturo GONZALEZ-SANDOVAL, Defendant-Appellant.

No. 89-50174.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1989.

Decided Jan. 18, 1990.

Martha M. Hall, Federal Public Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Michael G. Wheat and Roger W. Haines, Jr., Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, Chief Judge, SCHROEDER and O'SCANNLAIN, Circuit Judges.

GOODWIN, Chief Judge:

Arturo Gonzalez-Sandoval appeals his conviction for being found illegally in the United States after deportation, in violation of 8 U.S.C. Sec. 1326.

He was sentenced under the Sentencing Reform Act of 1984 (SRA) to six months in prison and supervised release for one year. Prior to trial Gonzalez made three motions, all of which the court denied: (1) to suppress all statements obtained from him in violation of his Miranda rights; (2) to dismiss the indictment as a result of unjustifiable delay in violation of the fifth amendment's due process clause and sixth amendment right to a speedy trial; and (3) for a continuance to obtain a tape of his deportation hearing and witness testimony with which to challenge the outcome of the deportation proceeding. The court's denial of these motions, and its determination of his sentence according to the SRA, form the basis of Gonzalez's appeal.

BACKGROUND

On April 6, 1986, Gonzalez-Sandoval was arrested and charged with transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(2), aiding and abetting illegal entry in violation of 18 U.S.C. Sec. 2 and 8 U.S.C. Sec. 1325, and failure to carry documents in violation of 8 U.S.C. Sec. 1304(e). At the time of the arrest, the government was unaware that Gonzalez-Sandoval, using the alias Francisco Guillen, had been deported five days earlier. As a result of evidentiary problems, all of the criminal charges against Gonzalez-Sandoval were dismissed on April 17, 1986.

On February 1, 1987, Gonzalez-Sandoval was arrested on state burglary charges. He was convicted a month later and sentenced to two years in state prison. He served his time for the burglary and was released. On October 4, 1988, Gonzalez-Sandoval repaired to the local police station to provide the urine sample that was a condition of his parole. His parole officer asked him if he had ever been deported. Gonzalez-Sandoval replied that he had, but that everything had been settled and he was now legally in the United States. As he was leaving, another officer accused him of being a deported alien, arrested him, and called the Border Patrol Office to report his suspicions.

Agent Mario Vasquez of the U.S. Border Patrol responded to the call and interviewed Gonzalez in a Calexico Police Department holding cell. Without giving Miranda warnings, Agent Vasquez asked Gonzalez where he was born and whether he had documents verifying his legal entry into the United States. Vasquez then transported Gonzalez to the Calexico Border Patrol Station for further questioning and ran a series of records checks to determine his immigration status. After the first check revealed that Gonzalez was an immigrated alien, Vasquez asked if he had ever used an alias. Gonzalez answered that previously he had used the name "Guillen". Vasquez then ran a records check under that name and for the first time discovered the record of the previous deportation. Only then was Gonzalez advised of his Miranda rights and charged with violation of 8 U.S.C. Sec. 1326.

I. THE MIRANDA VIOLATION

Gonzalez-Sandoval argues that the district court erred in denying his pre-trial motion to suppress statements elicited from him by Border Patrol agents while he was being detained in the Calexico Police Station. He contends that the questions asked about his immigration status and place of birth constitute an "interrogation" in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that his answers and information obtained derivatively through them should have been excluded at trial. The government argues that the questions were aimed merely at establishing Gonzalez-Sandoval's identity and were not calculated to elicit inculpatory responses.

The ruling in Miranda prohibits "custodial interrogation" unless the government first gives warnings to the suspect. However, as we noted in United States v. Booth, 669 F.2d 1231 (9th Cir.1981), "not every question posed in a custodial setting is equivalent to 'interrogation.' " Id. at 1237. Custodial questioning constitutes interrogation "whenever, under all the circumstances involved in a given case, the questions are 'reasonably likely to elicit an incriminating response from the suspect.' " Id., quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980).

Neither party contests that Gonzalez-Sandoval was in custody when the questioning at issue occurred. Whether the inquiries made of Gonzalez-Sandoval constitute interrogation is subject to review under the "clearly erroneous" standard. United States v. Equihua-Juarez, 851 F.2d 1222, 1225 n. 7 (9th Cir.1988); United States v. Poole, 806 F.2d 853 (9th Cir.1986).

In previous cases we have held that, because the relevant questions rarely elicit an incriminating response, routine gathering of biographical data does not constitute interrogation sufficient to trigger constitutional protections. United States v. Perez, 776 F.2d 797, 799 (9th Cir.1985); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.1983); Booth, 669 F.2d at 1238. That exception is inapplicable, however, where the elicitation of information regarding immigration status is reasonably likely to inculpate the respondent. As we observed in Mata-Abundiz, "[t]he relationship of the question asked to the crime suspected is highly relevant." 717 F.2d at 1280. In that case the defendant had been arrested and was being held on charges of carrying a concealed weapon and possession of a firearm by an alien when an INS agent visited him in jail and questioned him about his citizenship. The INS officer was aware of the charges against the defendant and used the information he elicited to confirm Mata-Abundiz's alien status and help secure the conviction. This court reversed the conviction, finding the INS agent's questioning equivalent to an interrogation in violation of Miranda, because "[t]he 'background questions' asked related directly to an element of a crime that [the INS official] had reason to suspect." Id. at 1280 (emphasis added).

Similarly Equihua-Juarez involved the questioning of a defendant in police custody by a border patrol agent seeking to ascertain the defendant's immigration status. 851 F.2d 1222. There we found that an inquiry into biographical matters constituted interrogation because "[t]he [a]gent's questions were directed at eliciting information which could be used in a criminal investigation and potential prosecution of [the defendant] on charges of felony illegal entry." 851 F.2d at 1226. ¹

The responses elicited from Gonzalez-Sandoval by the border patrol agents were used to help prove the charges of illegal entry and being a deported alien found in the United States. Agent Vasquez had reason to suspect that Gonzalez-Sandoval was in this country illegally and the questions he posed were "reasonably likely" to elicit responses which would substantiate the charge that Gonzalez-Sandoval had violated 8 U.S.C. Sec. 1326. In light of both the context of Vasquez's questioning and the content of the questions, it appears that Gonzalez-Sandoval was subject to interrogation and that his statements were obtained in violation of Miranda. ² The trial court erred in denying Gonzalez-Sandoval's motion to suppress with regard to the statements made prior to the giving of the Miranda warnings.

The conviction will be sustained, however, if admission of the un-Mirandized statements constituted harmless error. See United States v. Wilson, 666 F.2d 1241, 1247 (9th Cir.1982). In addition to Gonzalez-Sandoval's responses to Agent Vasquez's questions about his place of birth, immigration status, and use of aliases, the prosecution also introduced the record of Gonzalez-Sandoval's prior deportation and the confession he made after having received Miranda warnings to secure the conviction. The deportation record and the confession constitute overwhelming evidence of Gonzalez-Sandoval's guilt under 8 U.S.C. Sec. 1326 and, if properly admitted, would support a finding that introduction of the un-Mirandized statements was harmless beyond a reasonable doubt. We therefore now consider the admissibility of these two items of evidence.

A. The Deportation Record

Gonzalez-Sandoval in essence contends that the record of his prior deportation was a "fruit" of the illegal interrogation of him by Agent Vasquez and thus should have been suppressed. The question whether non-testimonial physical evidence discovered as the result of statements obtained in violation of Miranda is inadmissible as "fruit of the poisonous tree" has not yet been conclusively decided. ³

Supreme Court cases dealing with related issues, however, have enunciated certain principles to which we may look for guidance in the present case. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Court held that the mere fact that a defendant has once responded to unwarned yet non-coercive questioning does not render his subsequent confession, made after full Miranda warnings and a valid waiver of his rights, inadmissible as a violation of the fifth amendment. Id. at 318, 105 S.Ct. at 1297. The Court observed that the Miranda presumption of compulsion, although irrebuttable for purposes of the prosecution's case in chief, did "not require that the unwarned statements...