UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-50260
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN HUERTA-SALINAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(DR-97-CR-91-ALL)
January 30, 1998
Before POLITZ, Chief Judge, GARWOOD, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Martin Huerta-Salinas appeals his conviction for unlawfully
entering the United States, in violation of 8 U.S.C. § 1325(a)(1),
basing error on the denial of his motion to suppress oral
statements given to a Border Patrol Agent, and on the admission of
testimony regarding immigration records. We AFFIRM.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
On 21 February 1997, United States Border Patrol Agent Ruben
Mestas responded to a remote sensor, located about 20 miles from
the Rio Grande River in a remote area frequently traversed by
illegal aliens when entering this country. Agent Mestas observed
a group of men, including Huerta-Salinas, walking along a trail,
wearing dirty clothes, and carrying water jugs and knapsacks. He
also overheard them speaking Spanish, including discussing their
location and the direction in which they needed to continue.
Agent Mestas confronted the group, identified himself as an
immigration official, and asked where they were from. As a group,
they answered “from Mexico”. Agent Mestas then asked where they
had crossed, to which the group responded “through the river”. The
Agent arrested the group, including Huerta-Salinas, and took them
to the border patrol station for processing.
At the station, Agent Mestas questioned Huerta-Salinas about
his name, age and nationality. During this questioning, Huerta-
Salinas produced a copy of a temporary resident alien card. Agent
Mestas continued to question him regarding how and where he entered
the United States, to which Huerta-Salinas responded two or three
times that he had crossed through the river and had not presented
the card at a port of entry. The Agent then informed Huerta-
Salinas of his Miranda rights, which he invoked by refusing to make
further statements. See Miranda v. Arizona, 384 U.S. 436 (1966).
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Agent Mestas forwarded his arrest report to Border Patrol
Agent Paul Martinez, who conducted a Central Index System check on
Huerta-Salinas. This showed that the temporary resident alien
status had expired in 1990 (approximately seven years earlier), and
that there had been no request for a change to permanent alien
status.
In March 1997 a bench trial was conducted. Huerta-Salinas was
found guilty and sentenced to six months imprisonment.
II.
For a conviction under 8 U.S.C. § 1325(a)(1), the Government
must prove an entry, or attempted entry, by an alien into the
United States at any time or place other than as designated by
immigration officers. Additionally, the Government must prove how
the entry was effected. United States v. Flores-Peraza, 58 F.3d
164, 168 (5th Cir. 1995), cert. denied, 116 S. Ct. 782 (1996).
Huerta-Salinas contends the district court erred by refusing
to suppress the statements given to Agent Mestas at the station,
and by admitting the testimony concerning the INS records.
A.
As for the suppression denial, we review the district court’s
findings of fact under the clearly erroneous standard; its
conclusions of law, de novo. E.g., United States v. Cardenas, 9
F.3d 1139, 1147 (5th Cir. 1993), cert. denied, 511 U.S. 1134
(1994). In doing so, we view the evidence in the light most
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favorable to the prevailing party. Id. We will independently
review the record when, as here, the court entered no factual
findings or legal theory to support its denial. United States v.
Yeagin, 927 F.2d 798, 800 (5th Cir. 1991).
Huerta-Salinas contends that the statements at the station
should have been suppressed because he had not been given his
Miranda warnings. To this end, he maintains that the questions to
which he responded were not within the routine booking exception to
Miranda.
But, we begin our analysis at an earlier point in time — the
statements Huerta-Salinas gave in the field when he first
encountered Agent Mestas, which are nearly identical to those given
later at the station. Huerta-Salinas does not, and indeed cannot,
contend that his Miranda rights were violated during that field
encounter. It is undisputed that Huerta-Salinas was not then in
custody, thus there could be no Miranda violation. See, e.g.,
United States v. Pofahl, 990 F.2d 1456, 1487 (5th Cir.
1993)(“Miranda requires that the warnings be given prior to
custodial interrogation.”).
In the field, when asked “where are you from”, the group,
including Huerta-Salinas, replied “Mexico”. And, when next asked
where they had crossed, the group, again including Huerta-Salinas,
replied “through the river”. Huerta-Salinas did not object at
trial to the introduction of these statements.
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We conclude that these statements (admitting being from
Mexico and entry through the Rio Grande River); the use by Huerta-
Salinas of the copy of his temporary resident alien card, as
discussed infra; and the Agent’s testimony regarding the area where
Huerta-Salinas was found, what he was wearing, and what his group
was overheard saying, were sufficient to establish, beyond a
reasonable doubt, his entering the country in violation of §
1325(a)(1).
Accordingly, we need not decide whether the station-statements
were in violation of Miranda. Even assuming they were, such error
is harmless. “It is well settled that the admission of statements
obtained in violation of Miranda may constitute harmless error.”
United States v. Ackerman, 704 F.2d 1344, 1349 (5th Cir. 1983);
Null v. Wainwright, 508 F.2d 340, 343 (5th Cir.), cert. denied, 421
U.S. 970 (1975).
In making such an evaluation, we must
“review the facts of the case and the evidence
adduced at trial” to determine the effect of
the unlawfully admitted evidence “upon the
other evidence adduced at trial and upon the
conduct of the defense.” A court must then
decide whether, absent the so-determined
unconstitutional effect, the evidence remains
not only sufficient to support the verdict but
so overwhelming as to establish the guilt of
the accused beyond a reasonable doubt.
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Ackerman, 704 F.2d at 1349-50, (quoting Harryman v. Estelle, 616
F.2d 870, 876 (5th Cir.)(en banc), cert. denied, 449 U.S. 860
(1980)).
The station-statements are nearly identical to those in the
field. Ignoring the station-statements, the other evidence against
Huerta-Salinas was so overwhelming as to establish unlawful entry
beyond a reasonable doubt.
B.
As noted, for § 1325(a)(1) purposes, the unlawful entry must
be by an alien. As reflected by the evidence discussed in part II.
A., such status was proved sufficiently. This notwithstanding,
Huerta-Salinas contends that the district court erred in admitting
testimony about information obtained from INS records, because it
was not admissible under an exception to the hearsay rule.
Huerta-Salinas asserts that this information was used to prove
that his legal resident status had expired at the time of his
arrest. He contends also that it was improperly used to show the
absence of information — that he had failed to request permanent
resident alien status.
In the field, Huerta-Salinas’ group stated they were from
Mexico. And, at the station, in response to questioning about his
name, age, and nationality, Huerta-Salinas produced a copy of his
temporary resident alien card. (Agent Mestas did not testify as to
an expiration date on the card.) The Agent reacted to this by
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asking Huerta-Salinas where he had crossed and whether he had
presented the card at a port of entry. Huerta-Salinas replied that
he had crossed through the river and had not so presented the card.
(As noted, admission of these statements was harmless error.) At
that point Huerta-Salinas was given his Miranda warnings and
refused to make any more statements.
Agent Martinez testified that he conducted a Central Index
System check on Huerta-Salinas after receiving the arrest report;
and that this revealed that Huerta-Salinas’ temporary resident
alien status had expired in 1990 (approximately seven years before
his arrest), and that he had never sought permanent resident alien
status. Huerta-Salinas objected, asserting that the testimony,
inter alia, was hearsay.
We review evidentiary rulings only for abuse of discretion.
E.g., United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).
Moreover, we are reviewing a bench trial. “[T]he prejudicial
impact of erroneously admitted evidence in a bench trial is
presumed to be substantially less than it might have been in a jury
trial.” Cardenas, 9 F.3d at 1156. “‘[A] judge, sitting as a trier
of fact, is presumed to have rested his verdict only on the
admissible evidence before him and to have disregarded that which
is inadmissible.’” Id. (quoting Government of the Canal Zone v.
Jimenez G., 580 F.2d 897, 898 (5th Cir.), cert. denied, 439 U.S.
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990 (1978)); United States v. Hughes, 542 F.2d 246, 248-49 (5th
Cir. 1976).
As discussed supra, “any error the judge makes in admitting
evidence is thus harmless if there exists other admissible evidence
sufficient to support the conviction.” Cardenas, 9 F.3d at 1156;
United States v. Impson, 562 F.2d 970, 971 (5th Cir. 1977), cert.
denied 434 U.S. 1050 (1978). And, as reflected in part II. A., we
need not decide whether the testimony concerning the INS records
constitutes inadmissible hearsay. Even assuming error, it was
harmless.
For example, at the station, apparently in an effort, at least
in part, to prove that he was not an alien, Huerta-Salinas produced
the copy of his temporary resident alien card. And, as discussed
above, there was other admissible evidence along this line. As
another example, in the field, Huerta-Salinas in effect admitted
his alien status by his statement that he was from Mexico. Cf.,
United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir.
1984). Again, in sum, even ignoring the testimony about the
records-check, there was more than sufficient evidence to support
the conviction.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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