NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

WALTER OSVALDO SANTOS-GARCIA,

Defendant - Appellant.

No. 23-1580

D.C. No.

3:19-mj-23357-BGS-BTM

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Barry Ted Moskowitz, District Judge, Presiding

Submitted September 10, 2024**

Pasadena, California

Before: IKUTA and FRIEDLAND, Circuit Judges, and HSU, District Judge.

***

Walter Santos-Garcia appeals his conviction and sentence for attempted 

illegal entry. 8 U.S.C. § 1325(a)(1). We affirm.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Wesley L. Hsu, United States District Judge for the

Central District of California, sitting by designation.

FILED

SEP 12 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-1580

Santos-Garcia first challenges the admission at trial of the photograph of 

Santos-Garcia initialed by one of the testifying agents. United States Border Patrol 

agent, Anthony Kern, arrested two men for attempted illegal entry. That same day,

Kern was shown a report that contained a page with photographs of two men, both 

of which Kern initialed, as well as a sentence that says, “I, BPA Kern have placed 

my initials next to the photographs of the subjects below. My initials indicate that 

these are the individuals I arrested on August 13, 2019.” At trial, the magistrate 

judge admitted into evidence, over defense counsel’s hearsay objection, the onepage excerpt of the police report with the photographs, Kern’s initials, and the 

sentence regarding the initials’ significance. The magistrate judge underscored 

that he was “not considering the contents of the report,” but he was “considering 

[Kern’s] testimony regarding that photo and his initials.” 

The photograph itself was not hearsay. United States v. Lizarraga-Tirado, 

789 F.3d 1107, 1109 (9th Cir. 2015). We need not decide whether the sentence

accompanying the photograph and initials was hearsay, because its admission was 

harmless given that the magistrate judge underscored that he was “not considering 

the contents of the report” and Kern himself testified during trial that his initials 

“indicate[d] those are the two people . . . arrested on the day in question.” 1 The 

1 Because of our reasoning herein, we need not reach the government’s alternative 

argument that the photograph and initials are also admissible under Federal Rule of 

Evidence 801(d)(1)(C).
3 23-1580

magistrate judge accordingly did not and need not rely on that sentence’s 

representation that the initials signified his identification of Santos-Garcia.2 

The admission of the photograph and Kern’s initials also did not 

constitute plain error3 under the Confrontation Clause because “[a]ll the 

Confrontation Clause requires is the ability to cross-examine the witness about his 

faulty recollections.” United States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 

2012) (citing Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)). Santos-Garcia 

had the opportunity to cross-examine Kern here about his initials on the 

photographs. See United States v. Owens, 484 U.S. 554, 560 (1988) (holding that a 

witness’s lack of memory does not violate the Confrontation Clause). 

Finally, the evidence presented at the bench trial was sufficient to convict 

Santos-Garcia of attempted illegal entry.

4

 United States v. Aldana, 878 F.3d 877, 

2 The magistrate judge was also within his discretion to refer to the photographs of 

the arrested individuals in the record, compare them to Santos-Garcia in the 

courtroom, and identify Santos-Garcia himself, as the trier of fact during the bench 

trial. United States v. May, 622 F.2d 1000, 1007 n.12 (9th Cir. 1980).

3 Santos-Garcia argues that the Confrontation Clause claim should be reviewed de 

novo. Plain error review applies to the Confrontation Clause challenge, however, 

because Santos-Garcia’s counsel objected to the admission of the initialed 

photograph only on hearsay grounds. See United States v. Anekwu, 695 F.3d 967, 

973 (9th Cir. 2012); see also United States v. Gomez-Norena, 908 F.2d 497, 500 

(9th Cir. 1990) (“[A] party fails to preserve an evidentiary issue for appeal not only 

by failing to make a specific objection, . . . but also by making the wrong specific 

objection.”).

4 The magistrate judge did not consider post-Miranda statements made by SantosGarcia to a third agent, whose testimony the government withdrew. Our holding 
4 23-1580

880 (9th Cir. 2017);

5 8 U.S.C. § 1325(a)(1). Another agent, James Thompson, was 

patrolling an area “right on the” United States-Mexico border in a vehicle, about 

five miles from the nearest designated port of entry. Thompson’s vehicle had a 

device called a “drag” attached to it, which “has either tires on the back or brush” 

that, when pulled down the road, “clear[s] any kind of debris or any footprints[.]” 

Every hour starting at 1:00 p.m., Thompson swept the border area. At 

approximately 3:00 p.m., Thompson testified, he noticed “footprints coming from 

the border fence going north.” He followed the prints for “about . . . 200 yards” 

before stopping and advising other agents to the north of him of the two sets of 

footprints via radio, about which he said, “[O]ne was dimples and one was vertical 

lines with X’s.”6

Kern heard Thompson’s description of the footprints. Kern checked an area 

north of the reported footprints, “a big wash [that] runs north-south.” The area 

contains “mostly cattle.” He encountered a set of footprints like the ones 

Thompson described about “one half mile north of the international border.” He 

followed the prints for about 40 or 50 yards in a north or northwest direction and, 

that the evidence is sufficient refers only to the pre-Miranda evidence the 

magistrate judge considered at trial.

5 We need not resolve the parties’ dispute regarding whether de novo or clear error 

review applies to the corpus delicti argument because the result is the same under 

either standard.

6 During trial, defense counsel did not clarify what Thompson meant by “dimples.”
5 23-1580

at approximately 4:18 p.m., came across “two people laying in a big large bush on 

the ground.” Kern identified himself as a border patrol agent and instructed the 

two individuals to “stay put.” He approached and asked the men for their 

citizenship, and whether they had documents authorizing their entry or presence in 

the United States. The individuals told Kern that “they were born in Mexico, 

Mexican citizens, and no, they didn’t have any . . . immigration documents.” 

Taking the evidence in the light most favorable to the government, see United 

States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc), a rational trier 

of fact could infer, from Santos-Garcia’s admission to Kern that he was a citizen of 

Mexico and the trail of footprints with distinct markings leading directly from the 

border fence, that Santos-Garcia was an alien. Also, relying on this same evidence, 

a rational trier of fact could infer that Santos-Garcia had the specific intent to 

“enter the United States at a time or place other than as designated by immigration 

officers,” had the specific intent to enter “free from official restraint,” and took a 

substantial step toward committing the crime. United States v. Rizo-Rizo, 16 F.4th 

1292, 1295 & n.1 (9th Cir. 2021) (citation omitted); see also United States v. 

Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc).

AFFIRMED.