IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50738

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

HUMBERTO HOMERO DURON-CALDERA,

Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before HIGGINBOTHAM, OWEN, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

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. 

I.

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 government 

United States Court of Appeals

Fifth Circuit

FILED

December 16, 2013

Lyle W. Cayce

Clerk

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could 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 

1 Derivative citizenship is determined under the law in effect at the time of the child’s 

birth. United States v. Cervantes-Nava, 281 F.3d 501, 503 n.2 (5th Cir. 2002). As DuronCaldera was born in 1962, the 1952 version of the citizenship statute governs. 

2 For instance, Serrato states: “I talked to Maria [Caldera] last Saturday and she told 

me that she and [Duron-Caldera’s father] had told you that I arranged with Guadalupe San 

Miguel to have the births of Francisco and Ignacio registered in Eagle Pass, Texas. This is 

not true because I had nothing to do with it. I told Maria [Caldera] that I was going to tell 

you the truth and that is what I am doing. I think they told you this to protect [DuronCaldera’s father].” The last sentence is crossed out and initialed. 

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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 crossexamine 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.

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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.

II.

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). 

A.

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 Clause 

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bars 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 crossexamination. 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). 

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B.

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. (defining “affidavits” as “declaration[s] of 

facts written down and sworn to by the declarant before an officer authorized 

to administer oaths” (quoting Black’s Law Dictionary 62 (8th ed. 2004))). 

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 DuronCaldera’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, 

3 To the extent that the government argues that the affidavit is nontestimonial 

because it is a business record, this argument is unavailing. The standard for admissibility 

of business records under Federal Rule of Evidence 803(6) is not the standard for determining 

the testimonial nature of statements under the Confrontation Clause. See Melendez-Diaz, 

557 U.S. at 324 (“Whether or not they qualify as business or official records, the analysts’ 

statements here . . . were testimony against petitioner, and the analysts were subject to 

confrontation under the Sixth Amendment.”); Jackson, 636 F.3d at 692 n.2. 

 Regardless, Serrato’s statements contained in the affidavit, as well as Flores’s 

foundation testimony affirming the affidavit as a “defendant affidavit,” would not meet the

business records exception to the rule against hearsay, although the affidavit might qualify 

as an ancient document under Rule 803(16) or a statement of family history under Rule 

804(b)(4). See Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 279 (5th Cir. 1991) (“The 

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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 did not share 

them with the court. 

The evidence we do have is inconclusive. The affidavit is on an 

immigration form signed by an immigration officer. Yet, documents prepared 

by immigration officers on immigration forms can be testimonial if created for 

use at a later criminal trial. See, e.g., United States v. Martinez-Rios, 595 F.3d 

581, 586 (5th Cir. 2010) (finding that a Certificate of Nonexistence of Record 

from the defendant’s A-File was testimonial). There is evidence in this case to 

suggest that the affidavit was created for use at a later criminal trial, 

including: (1) the government’s concession that the affidavit was taken as part 

of a document fraud investigation that resulted in a criminal prosecution and 

conviction, and (2) the affidavit itself, in which Serrato exculpates herself and 

inculpates four others in the fraud. 

Based on our review of the record, we conclude that the government has

failed to establish that the Serrato Affidavit was not created for the primary 

purpose of providing evidence for a later criminal trial. See Jackson, 636 F.3d 

at 696-97. Because the government has not met its burden to prove that the 

affidavit is nontestimonial, the district court erred in admitting the affidavit. 

business records exception to the hearsay rule applies only if the person who makes the 

statement is himself acting in the regular course of business.”) (internal quotation marks and 

citation omitted); United States v. Baker, 693 F.2d 183, 188 (D.C. Cir. 1982) (“[I]f the source 

of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the 

business record.”); see also Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (finding, prior to the 

codification of the federal rules of evidence, that an accident report prepared by a railroad 

employee did not qualify as a business record because it was “calculated for use essentially 

in the court, not in the business”). 

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C.

The government also contends that the Serrato Affidavit is 

nontestimonial because it was not made to “accuse” Duron-Caldera of illegal 

reentry. The government correctly observes that when the affidavit was 

created forty years ago, neither Serrato nor law enforcement could have 

anticipated that the contents of the affidavit would inculpate Duron-Caldera. 

The government cites Williams v. Illinois, --- U.S. ---, 132 S.Ct. 2221 (2012) in 

support of this argument. In Williams, four Justices, referred to here as the 

plurality, expressed support for a primary purpose test that would find

testimonial only statements “having the primary purpose of accusing a 

targeted individual of engaging in criminal conduct.” Id. at 2242-43. 

We decline to adopt the government’s proposed “accusation” test for a 

number of reasons. First, in Williams, five Justices expressly rejected this test. 

See id. at 2262 (Thomas, J., concurring) (“The [plurality’s] new primary 

purpose test . . . lacks any grounding in constitutional text, in history, or in 

logic.”); id. at 2273 (Kagan, J., dissenting) (writing for Justices Scalia, 

Ginsburg, and Sotomayor) (“Where [the plurality’s] test comes from is anyone’s 

guess. Justice Thomas rightly shows that it derives neither from the text nor 

the history of the Confrontation Clause.”). For this same reason, the plurality’s 

test in Williams would not be controlling under Marks v. United States, 430 

U.S. 188, 193 (1977). See United States v. James, 712 F.3d 79, 95 (2d Cir. 

2013).4 

4 Ordinarily, “[w]hen a fragmented Court decides a case and no single rationale 

explaining the result enjoys the assent of five Justices, the holding of the Court may be 

viewed as the position taken by those Members who concurred in the judgment on the 

narrowest grounds.” Marks, 430 U.S. at 193 (internal quotation marks and citation omitted). 

The Marks principle, however, is only workable where there is some “common denominator 

upon which all of the justices of the majority can agree.” United States v. Eckford, 910 F.2d 

216, 219 n.8 (5th Cir. 1990); see also United States v. Johnson, 467 F.3d 56, 63-64 (1st Cir. 

2006) (“Marks is only workable – one opinion can be meaningfully regarded as ‘narrower’ 

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Second, along with these five Justices, we do not find support for the 

proposed test in the text of the Confrontation Clause. The Sixth Amendment

provides a criminal defendant (“the accused”) with the right “to be confronted 

with the witnesses against him.” U.S. Const. amend VI (emphasis added). The 

textual juxtaposition, therefore, is not between “the accused” and his “accuser”; 

it is between “the accused” and “the witnesses against him.” To the extent 

Serrato was a witness (discussed earlier), she “certainly provided testimony 

against petitioner, proving one fact necessary for his conviction” – his alienage. 

See Melendez-Diaz, 557 U.S. at 313. “The text of the [Sixth] Amendment 

contemplates two classes of witnesses – those against the defendant and those 

in his favor. . . . [T]here is not a third category of witnesses, helpful to the 

prosecution, but somehow immune from confrontation.” Id. at 313-14.

Third, we do not find support for the proposed test in Confrontation 

Clause precedent. Under Supreme Court precedent, a statement is testimonial 

if made for the primary purpose of establishing “past events potentially 

relevant to later criminal prosecution.” Davis, 547 U.S. at 822; see also 

Bullcoming, 131 S.Ct. at 2714 n.6, 2716-17; Michigan v. Bryant, --- U.S. ----, 

131 S.Ct. 1143, 1155-57, 1165 (2011); Melendez-Diaz, 557 U.S. at 310-11; 

Crawford, 541 U.S. at 51-52. “None of our cases has ever suggested that, in 

addition, the statement must be meant to accuse a previously identified 

individual.” Williams, 132 S.Ct. at 2274 (Kagan, J., dissenting); see also Kirby 

than another – only when one opinion is a logical subset of other, broader opinions.” (quoting 

King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc))). In Williams, there is no such 

common denominator between the plurality opinion and Justice Thomas’s concurring 

opinion. Neither of these opinions can be viewed as a logical subset of the other. Rather, 

Justice Thomas expressly disavows what he views as “the plurality’s flawed analysis,” 

including the plurality’s “new primary purpose test.” Williams, 132 S.Ct. at 2255, 2262 

(Thomas, J., concurring). As Williams does not yield a “narrowest” holding that enjoys the 

support of five Justices, it does not provide a controlling rule useful to resolving this case. 

James, 712 F.3d at 95; Jenkins v. United States, 75 A.3d 174, 184-89 (D.C. 2013). 

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v. United States, 174 U.S. 47, 54-61 (1899).5 In Melendez-Diaz, we perceive 

that the Court rejected this requirement. Melendez-Diaz, 557 U.S. at 313 

(rejecting respondent’s argument “that the analysts are not subject to 

confrontation because they are not ‘accusatory’ witnesses, in that they do not 

directly accuse petitioner of wrongdoing”). Tracing back to Crawford, 

moreover, we discern that the Court has identified the concern of the 

Confrontation Clause as statements one “would reasonably expect to be used 

prosecutorially . . . [or] at a later trial.” Crawford, 541 U.S. at 51-52 (emphasis 

added). 

Finally, the proposed test relies on an overly-narrow view of the rationale 

behind confrontation. The test assumes that the Confrontation Clause is 

designed to protect only against “a defendant-related motive to behave 

dishonestly.” See Williams, 132 S.Ct. at 2274 (Kagan, J., dissenting) (quoting 

Williams, 132 S.Ct. at 2250 (Breyer, J., concurring)). But confrontation 

protects against a wide range of witness reliability concerns beyond personal 

bias, such as perception, memory, narration, and sincerity. See id. at 2249 

(Breyer, J., concurring) (citing 30 C. Wright & K. Graham, Federal Practice 

and Procedure § 6324, pp. 44-49 (1997)); see also Melendez-Diaz, 557 U.S. at 

319 (“Confrontation is designed to weed out not only the fraudulent analyst, 

but the incompetent one as well.”). The Confrontation Clause commands only 

5 In its brief, the government cites language from a number of cases to support its 

proposed test, including United States v. Phoeun Lang, 672 F.3d 17, 22 (1st Cir. 2012); United 

States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009); and United States v. Honken, 541 F.3d 

1146, 1160 (8th Cir. 2008). These cases all predate Williams. More importantly, the 

language quoted by the government was not essential to the holdings of these courts. None 

of these courts directly confronted the question presented in this case – whether a statement 

is testimonial only if made for the primary purpose of accusing a targeted individual of 

engaging in criminal conduct. The same distinguishing features apply to our decision in

United States v. Olguin, 643 F.3d 384, 392 (5th Cir. 2011), which, regardless, relates to 

nontestimonial recorded statements by co-conspirators made in furtherance of a conspiracy. 

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one method of testing these witness-related reliability concerns: “the crucible 

of cross-examination.” Crawford, 541 U.S. at 61.6 

D.

We turn now to the question of whether the district court’s error in 

admitting the Serrato Affidavit was harmless. A defendant deprived of the 

right to confront witnesses against him is entitled to a new trial unless the 

government proves beyond a reasonable doubt that the error was harmless; 

that is, that “there was [no] reasonable possibility that the evidence 

complained of might have contributed to the conviction.” United States v. 

Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008) (quoting Chapman v. 

California, 386 U.S. 18, 24 (1967)). Relevant considerations include: 

the importance of the witness’ testimony in the prosecution’s case, 

whether the testimony was cumulative, the presence or absence of 

evidence corroborating or contradicting the testimony of the 

witness on material points, the extent of cross-examination 

otherwise permitted, and of course, the overall strength of the 

prosecution’s case.

Id. (quoting United States v. Rodriguez-Martinez, 480 F.3d 303, 308 (5th Cir. 

2007)). 

A number of considerations weigh against a finding of harmlessness. 

This is not a case where cross-examination was permitted but improperly 

circumscribed. E.g., United States v. Jimenez, 464 F.3d 555, 563 (5th Cir. 

2006). Duron-Caldera had no opportunity to cross-examine Serrato and there 

was ample grist for cross-examination: Serrato made the statements more 

than forty years before trial, some of the statements were self-serving, and the 

6 In its brief, the government remarks that the affidavit does not “inculpate [DuronCaldera] in any way.” To the extent that the government implies that the affidavit is 

nontestimonial because it is not facially or “inherently inculpatory,” the Court rejected this 

argument in Melendez-Diaz and five Justices rejected it in Williams. See Melendez-Diaz, 557 

U.S. at 313-14; see also Williams, 132 S.Ct. at 2263 (Thomas, J., concurring); Williams, 132 

S.Ct. at 2274 n.5 (Kagan, J., dissenting). 

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affidavit does not indicate Serrato’s basis of knowledge. These weaknesses, if 

probed on cross-examination, could have undermined the reliability of the 

affidavit and, in turn, affected the jury’s verdict. See Delaware v. Van Arsdall, 

475 U.S. 673, 684 (1986); Jimenez, 464 F.3d at 563.

The Serrato Affidavit was also an important part of the prosecution’s 

case. Duron-Caldera’s derivative-citizenship theory was his sole defense, and 

the Serrato Affidavit was one of only two pieces of evidence the government 

used to prove that Maria Caldera did not meet the ten-year residency 

requirement. The jury’s initial deadlock suggests that the jury seriously 

considered Duron-Caldera’s derivative-citizenship defense. 

Significantly, the government emphasized the affidavit in its closing 

argument. The prosecutor told the jury that “[t]he only way [Duron-Caldera] 

could have acquired citizenship would have been through his mother.” The 

prosecutor then pointed to the “affidavit of the defendant’s grandmother” as 

evidence “prov[ing] that did not occur.” In light of the government’s reliance 

on the affidavit in closing, “[w]e cannot see how the government can 

conclusively show that the tainted evidence did not contribute to the 

conviction.” Alvarado-Valdez, 521 F.3d at 342-43; see also Jackson, 636 F.3d 

at 697.

The government contends that any confrontation error was harmless 

because the Serrato Affidavit was cumulative. It is true that Serrato’s 

statement is corroborated by Maria Caldera’s citizenship application, in which 

she claims she arrived in the United States in 1960. But for evidence to be 

considered cumulative in this context, “substantial evidence [must] support[] 

the same facts and inferences as those in the erroneously admitted evidence.” 

United States v. Demmitt, 706 F.3d 665, 673 (5th Cir. 2013). The Serrato 

Affidavit does not meet this standard for two reasons. First, Maria Caldera’s 

citizenship application was the only other evidence corroborating Serrato’s 

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statement and it, too, was not subject to cross-examination. No trial witnesses 

testified to whether Maria Caldera met the ten-year residency requirement. 

Second, there was other evidence contradicting the Serrato Affidavit and 

Maria Caldera’s application, including school records, birth certificates, and 

baptismal records indicating that Maria Caldera and her family were present 

in the United States in the 1940s and 1950s. Based on our review of the record, 

we conclude that the government did not prove that the district court’s error 

was harmless beyond a reasonable doubt. 

III.

For the foregoing reasons, we VACATE the judgment of conviction and 

REMAND for further proceedings consistent with this opinion. 

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