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Joseph H. Gay, Jr., Assistant U.S. Attorney, Elizabeth Berenguer, Assistant U.S. Attorney, Richard Louis Durbin, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Donna F. Coltharp, Assistant Federal Public Defender, Federal Public Defender's Office, Del Rio, TX, for 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.
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 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)).
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.
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 cross-examine 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 ...