United States v. Duron-Caldera
| Decision Date | 16 December 2013 |
| Docket Number | No. 12-50738,12-50738 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee v. HUMBERTO HOMERO DURON-CALDERA, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.
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.
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 governmentcould 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
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.
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.
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).
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 Clausebars 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).
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. (). 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,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...
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