U.S. v. Marguet-Pillado

• Decision Date: 27 March 2009
• Docket Number: No. 08-50130.,08-50130.
• Citation: 560 F.3d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlos Jesus MARGUET-PILLADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

560 F.3d 1078

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Jesus MARGUET-PILLADO, Defendant-Appellant.

No. 08-50130.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2009.

Filed March 27, 2009.

Gregory T. Murphy, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

David P. Curnow and Steve Miller, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, Chief District Judge, Presiding. D.C. No. 3:06-CR-2505-IEG.

Before: ALFRED T. GOODWIN, FERDINAND F. FERNANDEZ, and RICHARD A. PAEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Carlos Jesus Marguet-Pillado (Carlos Marguet) appeals his conviction under 8 U.S.C. § 1326(a) for being a removed alien who was found in the United States. Principally he argues that he is, in fact, a citizen of the United States because he has derivative citizenship and that, in any event, evidence was improperly admitted at trial. We affirm in part, but reverse his conviction.

BACKGROUND

Carlos Marguet was born in Tijuana, Mexico, on November 4, 1968, to Juana Pillado, a Mexican citizen, and an unknown biological father.¹ Michael L. Marguet (Michael Marguet), a United States citizen, is not Carlos Marguet's biological father and was not married to Carlos Marguet's mother at the time that Carlos Marguet was born. However, Michael Marguet was named as his father on a Mexican birth certificate filed August 22, 1973, and has held out Carlos Marguet as his own son. In November of 1973, an "Application for Status as Permanent Resident" (the Application) was filed with the United States Immigration and Naturalization Service. It was technically filed by Carlos Marguet, but, in fact, because Carlos Marguet was a small child, it was actually prepared and signed by Michael Marguet. In an interview with a United States Immigration Examiner, Michael Marguet indicated that he wanted to marry Carlos Marguet's mother and had registered Carlos Marguet as his own child so that both of them could immigrate to the United States and live with Michael Marguet. However, he said, Carlos Marguet "was not his real child." On the date of the interview, Carlos Marguet became a lawful permanent resident.

While in the United States, Carlos Marguet was convicted of second degree burglary and attempted murder, and was released from prison in 2002. In 2006, Carlos Marguet was taken into custody again on an unrelated incident, and was later turned over to the immigration authorities. On September 22, 2006, an Immigration Judge (IJ) ordered Carlos Marguet deported. The IJ rejected the argument that Carlos Marguet had derivative United States citizenship through Michael Marguet.

Carlos Marguet was subsequently indicted for the crime of being a removed alien found in the United States in violation of 8 U.S.C. § 1326(a). He filed a motion to dismiss the Indictment on the ground that it was defective for failure to allege that he knew he was an alien, an element he believed was essential to a § 1326 charge. The district court denied that motion. Then, he filed a second motion to dismiss the Indictment. This time it was on the ground that the underlying deportation proceeding was defective. He made that claim on the basis that the proceeding was "fundamentally unfair" because the IJ applied the wrong law in assessing whether Carlos Marguet could establish derivative citizenship through Michael Marguet. The district court denied that motion also.

At trial, the parties stipulated that Carlos Marguet voluntarily reentered the United States after being removed therefrom, and that he was thereafter found in California on October 20, 2006. They also stipulated that Carlos Marguet never received the express consent of the Attorney General or of the Secretary of the Department of Homeland Security to reapply for admission.

A bench trial was then held. During the trial, Carlos Marguet objected to the introduction of the Application for the purpose of showing that he was born in Mexico and was a citizen of that country. He asserted that the statements in the Application violated his Constitutional right to confront witnesses against him, and that they were inadmissible hearsay. The district court overruled his objections. At the close of the government's case, Carlos Marguet made a motion for judgment of acquittal and asserted that the government had not proven his alienage beyond a reasonable doubt. The district court denied that motion, found him guilty as charged in the Indictment, and ultimately imposed sentence.

This appeal followed.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's denial of the motion to dismiss the Indictment de novo. See United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006). However, we review the district court's factual findings for clear error. Id.

We review de novo the district court's determinations of claimed violations of the Confrontation Clause. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.2001). Moreover, we review de novo the district court's construction of hearsay rules, but review for abuse of discretion the court's determination to admit hearsay evidence. See id. If we determine that the district court committed a nonconstitutional error, we will reverse if it is more likely than not that the error affected the verdict. See United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir.1991).

We review de novo the district court's denial of a motion for acquittal. See United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002). In reviewing a challenge to the sufficiency of the evidence, we will uphold the conviction if "`after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. at 641-42.

DISCUSSION

While Carlos Marguet raises a number of claims, his principal claim relies upon his assertion that he is a United States citizen. He argues that, despite the fact that he is not related to Michael Marguet by blood, he is nonetheless entitled to derivative citizenship through Michael Marguet. We will, therefore, take up that question first.

I. Derivative Citizenship

It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution,² and the latter is provided for by the enactments of Congress.³ It would be a bit surprising to discover that over the decades Congress had selected a method that relied on neither concept, but, rather, was content to have United States citizenship acquired at birth by a person born out of wedlock, who was not born on United States soil and who, at the time, did not have a natural parent who was a United States citizen. As it is, there is no cause for surprise.

Certainly, we know that as statutory law has stood since 1986 an actual blood relationship between at least one United States parent and the child is explicitly required. The applicable statutory section reads as follows as far as a father is concerned:

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title . . . shall apply as of the date of birth to a person born out of wedlock if—

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person's birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) While the person is under the age of 18 years—

(A) the person is legitimated . . .,

(B) the father acknowledges paternity of the person . . ., or

(C) the paternity of the person is established by adjudication of a competent court.

8 U.S.C. § 1409(a) (1986).⁴ However, when Carlos Marguet was born in 1968, the statute read somewhat differently: It did not specifically mention a blood relationship on its face. It provided:

The provisions of paragraphs (3) to (5), and (7) of section 1401(a) . . . of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

8 U.S.C. § 1409(a) (1952). That is the section that we must apply to Carlos Marguet's claim,⁵ and he asserts that its failure to specifically mention a blood relationship necessarily means that none was required, so that children born out of wedlock can be dubbed United States citizens even though neither natural parent was a citizen. In that he errs.

In Miller, a majority of the justices indicated an understanding that our traditions, and the 1952 version of the statute, look to a blood (biological) relationship between the alleged father and the child at birth. Justice Stevens, speaking for himself and for Chief Justice Rehnquist, put it this way: "As originally enacted in 1952, § 1409(a) required simply that `the paternity of such child [born out of wedlock] is established while such child is under the age of twenty-one years by legitimation.' . . . The section offered no other means of proving a biological relationship." Miller, 523 U.S. at 435, 118 S.Ct. at 1437 (citation omitted). He also noted the importance of that relationship. As he said: "There is no doubt that ensuring reliable proof of a biological relationship between the potential citizen and its citizen parent is an important governmental objective." Id. at 436, 118 S.Ct. at 1438. And Justice Breyer, speaking for himself and Justices...