### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-50385

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JULIO CESAR MONTALVO-RANGEL, also known as Julio Cesar Montalvo, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas No. 5:10-CR-64

Before SMITH and STEWART, Circuit Judges. * JERRY E. SMITH, Circuit Judge: ** U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 15, 20 11 Lyle W . Cayce Clerk

Judge Ga rw ood wa s a me mbe r of this pane l but die d, aft er oral argum ent, on July 14, * 2011. This m att er is dec ide d by a quor um. See 28 U .S .C. § 46(d).

Purs uant to 5 T H C IR

. R. 47.5 , the court has det erm ined that this opi nion sho uld not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-50385 Document: 00511571968 Page: 1 Date Filed: 08/15/2011No. 10-50385

Julio Montalvo-Rangel appeals his conviction of illegal reentry. Finding no error, we affirm.

I. Montalvo-Rangel was arr e s ted in January 2010 on an outstanding warrant, taken to a coun ty jail, and questioned by Immigration and Customs Enforcement (“ICE”) agents. They obtained “biological” information from him, including an admission that he was a Mexican citizen wh o w a s in the country ill e g ally, and recorded that information on a document called Form I-213, R e c o r d of Deportable/Inadmissible Alien. They also asked Montalvo-Rangel to make a
sworn statement for inclusion on a Form I-215B, Record of Sworn Statement in Affidavit Form. They informed him o f h i s M iranda rights, as required by the form, and he chose to remain silent. Montalvo-Rangel was charged with illegal reentry in violation of 8 U.S.C. § 1326(a). He sought to suppress the st a t e m e n t s taken from him by the ICE

a g e n t s and recorded on the Forms I-213 and I-215B. At the hearing on t h e motion, an ICE agent testified that it was customary practice to obtain information from an arrestee to fill out Form I-213 before providing the Miranda warning required by Form I-215B. The government, without explanation, withdrew any reliance on the statements contained in either form. The dis t r i c t court granted the motion to suppress, stating that it found it “troubl i n g” t h at there “appears to be a standard practice by ICE agents to interrogate individuals first and provide Mirandawarnings afterward.” The case proceeded to bench trial, where the government sought to admit

a Form I-215B from 2008, when Montalvo-Rangel was first deported, which also contained a statement from him declaring that he was a citizen of Mexico. Montalvo-Rangel argued that the 2008 form should be suppressed because (1) admission in evidence would violate his rights under the Confrontation Clause of the

2 Case: 10-50385 Document: 00511571968 Page: 2 Date Filed: 08/15/2011No. 10-50385

Sixth Amendment, and (2) the government had failed t o p r ove that the statements contained in the form were knowing and voluntary. During the hearing

on the moti o n to suppress, the government called no witnesses who had been present at the time the form was created or when the statements recorded in the form were made, nor did the government show that the witnesses were unavailable or had previously been subject to cross-examination regarding the form. The district court overruled Montalvo-Rangel’s objections, admitted the form in evidence, and found Montalvo-Rangel guilty of illegal reentry.

II. Montalvo-Rangel ar gues that because the agent who filled out the 2008 Form I-215B di d n o t t e s tif y , M o nt alvo - R a n gel was denied his constitutional right to “confront” a witness. The “form” in question, however, is actually an affidavit executed by Montalvo-Rangel. Although it was typed by an immigration officer, it was signed and attested to by Montalvo-Rangel. In that respect, it is no different from a person’s dictating an affidavit to an assistant before signing it—the “witness” in such a situation is the individual dictating and signing the affidavit, not the one who transcribed it. The language of the document confirms this:
I, Julio Montalvo-Rangel acknowledge that the above-named officer has identifi e d h i m s e lf to me as an officer of the United States Department of Homeland Security, authorized by law to administer oaths and take testimony in connection with the enforcement of the Immigration and Nationality laws of the United Sta t e s . He has informed me that he desires to take my sworn statement regarding: my illegal entry into the United States.

. . . [ Record of questioning, including a question regarding Montalvo

Rangel’s citizenship]

. . .

3 Case: 10-50385 Document: 00511571968 Page: 3 Date Filed: 08/15/2011No. 10-50385

I h a v e read (or have had read to me) the foregoing statement cons isting of

___ pages. I affirm that the answers attributed to me herein are true and correct to the b e s t o f my knowledge and belief and that this statement is a full, true, and correct record of my questioning by the above-named officer of the Immigration and Naturalization Service. I have initialized each page of this statement.

. . . 1

The form is nothin g m o r e th a n a s tatement by Montalvo-Rangel; accordingly, the only witness he has the right to confront is himself. The recent decision in Bullcoming v. New Mexico , 131 S. Ct. 2705 (2011), does not alter our analysis. There, a forensic analyst was a s s igned to test the blood alcohol content of the defendant. The analyst conducted the test and prepared a report that, among other things, affirmed that the analyst had received the blood sample with its seal intact and had followed all appropriate procedures in conducting the test. At trial, though the report was admitted into evidence,

a different analyst was called to testify. The Court held that, because the report included testimonial statements made to prove a fact at a criminal trial, the defendant’s Confrontation Clause rights were violated because the declarant— the analyst who made the testimonial statements—was not made available for cross-examination at tri al

. M o nt alvo - R a n ge l

S Sn o t the agent who transcribed the affidavit

SSwas the declarant of the testimonial affidavit, and Bullcoming gives Montalvo-Rangel only the right to confront himself. 2

O n t he for m, a Sp anis h t rans lati on app ears al ongs idet he Englis h t ext. 1
Mo ntalvo -Rangel als o com plai ns that , by not being ab l e t o cro ss -exam ine the agent 2 wh o tra nsc ribe d the st atem ents , he wa s unable to deve lop info rm atio n conc erni ng the cir cum st ance s under wh ich the for m wa s cre ated and signe d. That may be the case, but it is irrele

vant to the Confr onta tio n Claus e iss ue of wh om Mo ntalvo -Rangel wa s enti tle d to conf ront once the for m wa s adm itt ed into evide nce. The cir cum st ance s sur round ing Mo ntalvo -Rangel ’s signatur e on the for m sp eak to the volunt arine ss of the aff idavit , as we ll as its adm iss ibili ty general ly unde r the rules of evidence , and not to the ide ntit y of the dec laran t. Mo ntalvo -Rangel is not enti tle d, unde r the Confr onta tio n Claus e, to cro ss- exa min e wi tnes se s to his ow n aff idavit (he doe s not cont es t that it is his signa tur e, wh ich is one ite m the im mi grati on off icer att es ted (c onti nued

.. .) 4 Case: 10-50385 Document: 00511571968 Page: 4 Date Filed: 08/15/2011No. 10-50385 III. “A confession is voluntary if, under the totality of the circumstances, the statement is the product of the accused’s free and rational choice.” United States

v. Garcia Abrego , 141 F.3d 142, 170 (5th Cir. 1998) (citation omitted). Where a defendant challenges the voluntariness of the confession, the burden is on the government to prove, by a preponderance of the evidence, that the statement made was voluntarily. Id

. In considering a ruling on a motion to suppress, we review the district court’s factual findings for clear error a n d its legal conclusions de novo

. See United States v. Chavez , 281 F.3d 479, 483 (5th Cir. 200 2). The 2008 form included a statement, in English and Spanish, that the declarant had received a Miranda warning and chose to waive those rights. On the form, Montalvo-Rangel affixed his initials next to the Spanish waiver of his Miranda rights and, at the end of the form, affirmed the entirety of the documen t

—i n c luding his understanding of his Miranda rights and his decision to waive them. Absent any credible contrary evidence, Montalvo-Rangel’s attestation in the document itself is sufficient, under a preponderance-of-evidence standard, to show that the confession was given freely and voluntarily. Montavlo-Rangel, however, argues that the admission was not voluntary because it was the result of a deliberate two-step interrogation strategy, which, 3 generally speaking, i s a strategy by which officials interrogate an individual without administering a Mirandawarning, obtain an admission, administer a

(

.. .c onti nued) 2 thathe w itne ss ed)

. See Mi sso uri v. Sei ber t , 542 U. S. 600, 611 (200 4) (p lural ity)

. “ Sei ber t requ ires the sup 3 pr es sio n of a pos t- wa rning s t a tem ent only wh ere a del iber ate tw o-s tep st rat egy is use d and no cur ative me asu res are tak en. ” Uni ted States v. Courtne y , 463 F.3d 333 (5t h Cir. 2006) (c iting Sei ber t , 542 U. S. at 622)

. See also Uni ted States v. Nunez- Sanc hez , 478 F.3d 663 (5t h Cir. 2007) (ho ldi ng that a conf es sio n wa s volunt ary even thou gh fed eral agents had init ially ques tio ned Nune z wi thou t adm inis ter ing a Mi ra nda wa rning, beca use ther e wa s no evide nce of a del iber ate tw o-s tep in ter rogat ion st rat egy). 5 Case: 10-50385 Document: 00511571968 Page: 5 Date Filed: 08/15/2011No. 10-50385

Mirandawarning, and then obtain the same admission again. The only evidence Montalvo-Rangel offers for this argument, however, is the circumstances surrounding the statements on the 2010 f o r m , which was excluded at trial on the ground that it was the product of a two-step interrogation. Because Montalvo-Rangel offers no evidence indicating that the 2008 form was also the product of a two-step interrogation strategy, his argument fails. 4 In l i ght of the Miranda warning on the form and the absence of specific evidence of the use of a two-step interrogation strategy when the statement was transcribed, the government has satisfied its burden of showing that the confession was given freely and voluntarily. AFFIRMED.

Mo ntalvo -Rangel doe s poi nt to tes tim ony fr om an ICE agent mad e dur ing the hear ing 4
on adm itt ing the 2010 for m into evide nce: The agent tes tif ied that the pr oce ss use d to fil l out the 2010 for m wa s “p rop er pr act ice. ” That sin gular st atem ent, how ever, is ins uff icie nt to cas t doub t on the pr opr iet y of the 2008 for m. There is noth ing mo re in the rec ord to indi cat e wh at the agent me ant by “p rop er pr act ice, ” let alone any evide nce indi cat ing that the tw o-s tep inte rrogat ion app roac h wa s the “p rop er pr act ice” of the agents , and off ice, that had rec ord ed Mo ntalvo- Rangel’s s tat em ents in200 8. 6 Case: 10-50385 Document: 00511571968 Page: 6 Date Filed: 08/15/2011