United States v. Garcia, 17-10862

887 F.3d 205

UNITED STATES of America, Plaintiff-Appellee

v.Wilberth Medina GARCIA, Defendant-Appellant

No. 17-10862

United States Court of Appeals, Fifth Circuit.

FILED April 6, 2018

Joseph Andrew Magliolo, Esq., James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:

A jury convicted Wilberth Medina Garcia of illegal reentry. Garcia now appeals his conviction, arguing that the district court erred by (1) permitting the government to bolster the credibility of its declarants improperly, (2) overruling Garcia’s hearsay and Confrontation Clause objections to the government’s evidence, and (3) denying Garcia’s motion for a new trial predicated on the government’s putative Brady violation. Finding the district court’s rulings correct, we AFFIRM Garcia’s conviction.

BACKGROUND

Garcia, a Mexican citizen, entered the United States without inspection in 2002. On February 4, 2015, in Huntsville, Texas, an officer with the Department of Homeland Security’s Immigration and Customs Enforcement served Garcia with a Notice of Intent to Issue a Final Administrative Removal Order. This document stated that Garcia was deportable because of his conviction for an "aggravated felony." Garcia indicated on the form that he did not contest the allegations, would not apply for deferral of removal, and wished to be removed to Mexico. On February 9, an immigration official served a Final Administrative Removal Order on Garcia. This stated that Garcia’s deportability was established by clear and convincing evidence and that he was to be removed from the United States to Mexico.

The same day, a warrant of removal was recorded, documenting Garcia’s removal on foot through the Laredo, Texas port of entry. The warrant of removal states that it was filled out by the "immigration officer executing the warrant," and it contains a picture of Garcia, his right index fingerprint, and his signature. The warrant of removal also certifies that an immigration officer witnessed Garcia’s removal to Mexico, and the form contains the witness’s signature. The document also contains a section to be completed if an alien’s departure is not actually witnessed, but this section is blank. Finally, the document contains a space for the signature of an immigration officer who subsequently "[v]erified" the departure. This space contains a signature with a line through it.

In August 2016, Garcia was booked into the Dallas County Jail. The following day, an ICE officer placed an immigration detainer on Garcia, and he was transferred into ICE’s custody. On October 11, 2016, Garcia met with ICE Deportation Officer Frederick Sims. During this interview, Garcia admitted that he had illegally entered the United States around May 2016 near El Paso, Texas. Officer Sims checked immigration databases and determined that Garcia had not applied to be in the United States legally.

Officer Sims presented Garcia with a Miranda waiver. This waiver recited the Miranda rights in Spanish and is typed out in the first person to indicate the signer’s intent to waive those protections. The typed form lists the date of waiver as October 11, 2016. The form also contains two signatures of witnesses to the waiver. Officer Sims signed the form, and listed the date as October 17. Another officer signed the form and listed the date as October 19. At trial, Officer Sims testified that Garcia signed the waiver on October 17 and not on October 11.

A federal grand jury indicted Garcia for illegally reentering the United States in violation of 8 U.S.C. § 1326, and Garcia proceeded to trial. At trial, Officer Sims testified to his conversations with Garcia in October 2016 and stated that, based on his own review of ICE databases, Garcia had not sought permission to return to the United States. Officer Noel Lee, a second deportation officer with ten years of experience, testified further about removal procedures. Officer Lee explained the documents pertaining to Garcia’s prior removal proceedings and the quality checks used to ensure that those documents contained accurate information. The district court admitted these documents into evidence over Garcia’s Confrontation Clause and hearsay objections. A forensic expert also testified that the fingerprint on Garcia’s warrant of removal was authentic. Garcia produced no evidence and called no witnesses to testify that he had never been removed or that he had applied for readmission to the United States. Garcia also objected to certain statements the prosecutor made during closing arguments, but the district court overruled these objections.

After the jury convicted Garcia of the illegal reentry, he filed a motion for a new trial, arguing that his Brady rights were violated by the government’s failure to clarify the timing of his Miranda waiver. The district court denied Garcia’s motion, and Garcia was ultimately sentenced to 22 months' imprisonment. He timely appealed.

STANDARDS OF REVIEW

The propriety of a prosecutor’s statements is reviewed de novo , but we review for an abuse of discretion whether those statements affected the defendant’s substantial rights. See United States v. McCann , 613 F.3d 486, 494 (5th Cir. 2010). We review an alleged Brady violation de novo . See United States v. Martin , 431 F.3d 846, 850 (5th Cir. 2005). Whether the admission of objected-to evidence violates the hearsay doctrine is a mixed question: legal issues are reviewed de novo ; factual determinations are reviewed for clear error. See United States v. Bell , 367 F.3d 452, 465 (5th Cir. 2004). Alleged Confrontation Clause violations are reviewed de novo and subject to harmless error analysis. See id .

DISCUSSION

I. Prosecutorial Misconduct Claim

Garcia argues that the prosecutor’s closing statements impermissibly bolstered the credibility of its declarants. Garcia objects to four comments:

1. [T]here’s no suggestion that any of the hundreds of thousands of people that work for the Department of Homeland Security and ICE would want to make something up about this one defendant. What motivation do they have? These are hardworking people—

2. These are hardworking people who go in to work every day and who do their job ... everybody in this case has done their job.

3. And it's no different, as we talked about in testimony, when after September 11th, this department was created.... We don't require that the pilot then come through the plane, or the flight attendant, and recheck the boarding pass again, rescan everybody for any weapons, because we rely on the system in our country that people do their job because they care and that’s what they do.

4. So now we'd ask, Ladies and Gentlemen, that you do the final part of your job, which is to go back and deliberate, and we ask that you find him guilty as the evidence shows he is.

Even if we find these statements to be improper, that does not conclude the inquiry: "Overturning a jury verdict for prosecutorial misconduct is appropriate only when, ‘taken as a whole in the context of the entire case,’ the prosecutor’s comments ‘prejudicially affect[ed the] substantial rights of the defendant.’ " United States v. Delgado , 672 F.3d 320, 337 (5th Cir. 2012) (en banc) (quoting United States v. Risi , 603 F.2d 1193, 1196 (5th Cir. 1979) ). This court determines whether substantial rights were affected by assessing three factors: "(1) the magnitude of the prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge, and (3) the strength of the evidence supporting the conviction." Id . (quoting United States v. Wyly , 193 F.3d 289, 299 (5th Cir.1999) ). Garcia has failed to show reversible error under this standard.¹

Determining the propriety of the prosecutor’s statements requires examining the context in which they were made. See United States v. Thompson , 482 F.3d 781, 785 (5th Cir. 2007). In this case, the prosecutor began her initial closing arguments by telling the jury that their "job is not yet finished," and stressing the importance of their duty "to render a decision based on the law and the evidence." The prosecutor then reviewed the evidence substantiating each element of an illegal reentry, concluding that the only disputed issue was whether Garcia actually "crossed that bridge" and left the United States in 2015 as the warrant of removal attests. In context, then, the challenged remarks principally involve the prosecutor’s defense of the warrant of removal’s credibility.

Garcia argues that Statement One improperly suggests that acquittal would require belief in a vast government conspiracy. This court has deemed such statements improper. United States v. Gracia , 522 F.3d 597, 601-02 (5th Cir. 2008) ; United States v. Goff , 847 F.2d 149, 164 (5th Cir. 1988). But here, the prosecutor’s statement that there is no evidence of a motive for ICE employees "to make something up about" Garcia does not suggest that acquittal would require a government conspiracy. Compare Goff , 847 F.2d at 163 (error where prosecutor stated that acquittal required the jury "to believe that there is a conspiracy but the conspiracy started apparently in Las Vegas and involves the Internal Revenue Service, the Drug Enforcement Administration, the F.B.I., the Texas Department of Public Safety, the United States Attorneys Office, .. and maybe even a judge or two"); Gracia , 522 F.3d at 600 (error for prosecutor to state that acquittal required believing that police "got out of bed ... [and decided] that [they] were going to start [a] conspiracy to wrongfully convict" the defendant).

Statement One above is not evoking a vast government conspiracy but is instead rebutting the defense’s implication that whoever signed the warrant of removal may have falsified...