United States v. Khazel ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50915
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBER KHAZEL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(DR-98-CR-150-ALL)
_________________________________________________________________
May 28, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Rober Khazel challenges the sufficiency of the evidence
supporting his bench trial conviction for unlawful entry at a time
and place other than as designated by immigration officials, in
violation of 8 U.S.C. § 1325(a)(1). We AFFIRM.
I.
Khazel consented to a bench trial before a magistrate judge.
Border Patrol Agent Kemmett testified that, on 8 February 1998, he
responded to a call from a rancher at the Petty Ranch, located
approximately two miles north of the Rio Grande River and
*
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that this opinion should not be published and is not precedent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.
approximately 40 miles west of Laredo, Texas, the nearest port of
entry between the United States and Mexico. The Agent had
previously investigated unlawful entries into the United States at
the Petty Ranch and knew the area to be extremely active.
The ranch foreman took the Agent to the main hunting camp
where the Agent saw three individuals, including Khazel,
voluntarily exit a small building. Khazel’s clothing was torn, and
he was not wearing shoes or socks. Agent Kemmett testified that
Agents often encounter illegal aliens whose clothing has been torn
or ripped from going through brush and climbing over fences.
The Agent approached Khazel and questioned him in English.
The Agent testified that Khazel’s English was “okay” and that they
communicated enough to “joke around” and to form sentences.
The Agent inquired as to Khazel’s citizenship, to which Khazel
responded that he was “from Syria”. The Agent asked Khazel “if he
had crossed the river” and had “come from Mexico”, to which Khazel
replied “yes”. To determine whether Khazel had been inspected by
an immigration inspector, the Agent “asked him if he had, after he
crossed the river[,] ... talked to a person wearing a green shirt
or a white shirt”. (According to the prosecutor, “[e]verybody
knows green shirt is Border Patrol, white shirt is Immigration
Inspector”.) The Agent arrested Khazel and took him to a Border
Patrol Station where an interpreter read Khazel his rights. Khazel
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did not have a passport or visa, and had no documents indicating
that he had entered through a port of entry.
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The Government offered no other evidence. Nor did Khazel
present any evidence. The magistrate judge found Khazel guilty and
sentenced him to 30 days’ imprisonment (served prior to trial).
Khazel appealed to the district court, challenging the sufficiency
of the evidence. The district court affirmed.
II.
Khazel contends that his uncorroborated statements are
insufficient evidence of his guilt, and that the Government did not
present sufficient independent evidence to prove that he committed
a crime or to establish the trustworthiness of his admissions.
Khazel properly preserved his objection to the sufficiency of the
evidence by moving for a judgment of acquittal at the end of the
Government’s case-in-chief and by renewing the motion at the close
of all the evidence.”
“In reviewing the sufficiency of the evidence in a bench
trial, we must affirm the conviction if there is substantial
evidence.” United States v. Ybarra, 70 F.3d 362, 364 (5th Cir.
1995), cert. denied, 517 U.S. 1174 (1996). “The test for
evidential sufficiency is whether any substantial evidence supports
the finding of guilty and whether the evidence is sufficient to
justify the trial judge, as trier of the facts, in concluding
beyond a reasonable doubt that the defendant was guilty.” Id.
(internal quotation marks, brackets, and citation omitted). In
making that determination, we “view all evidence in the light most
favorable to the government and defer to all reasonable inferences
drawn by the trial court”. Id.
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To obtain a conviction for unlawful entry in violation of 8
U.S.C. § 1325, the Government had the burden of proving (1) that
Khazel was an alien; (2) that he entered the United States; and (3)
that he entered unlawfully at a time or place other than as
designated by immigration officers. 8 U.S.C. § 1325(a)(1); see
United States v. Flores-Peraza, 58 F.3d 164, 168 (5th Cir. 1995)
(Government must prove how the entry was effected), cert. denied,
516 U.S. 1076 (1996).
A.
An accused may not be convicted solely on the basis of his own
confession. United States v. Micieli, 594 F.2d 102, 108 (5th Cir.
1979); see Opper v. United States, 348 U.S. 84, 93 (1954); Smith v.
United States, 348 U.S. 147, 152 (1954). “This is especially true
when ‘the admission is made after the fact to an official charged
with investigating the possibility of wrongdoing, and the statement
embraces an element vital to the Government’s case’.” Ybarra, 70
F.3d at 365. If a defendant’s confession is central to an element
of the Government’s case, it must be corroborated. See id. The
independent evidence introduced to corroborate a confession is
sufficient if it establishes “the truth, trustworthiness, and
reliability of the accused’s statement to the investigating
authorities”. See Micieli, 594 F.2d at 109 (citation omitted).
“‘The corroborative evidence alone need not prove the defendant’s
guilt beyond a reasonable doubt, ... as long as there is
substantial independent evidence that the offense has been
committed, and the evidence as a whole proves beyond a reasonable
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doubt that the defendant is guilty....’” Ybarra, 70 F.3d at 365
(citing United States v. Garth, 773 F.2d 1469, 1479 (5th Cir.
1985), cert. denied, 476 U.S. 1140 (1986)); see also Micieli, 594
F.2d at 108-09.
The record contains evidence sufficient to establish the
trustworthiness and reliability of Khazel’s statements to Agent
Kemmett. Khazel was found in a remote area close to the border,
far from any town or port of entry. He did not have a passport or
other documents indicating that he entered the United States
legally. Khazel’s clothing was torn in a manner consistent with
going through brush and climbing over fences. This independent
evidence is sufficient to corroborate the truthfulness of Khazel’s
statement that he was from Syria and had entered the United States
from Mexico by crossing the Rio Grande River. See Ybarra, 70 F.3d
at 365; see also United States v. Lopez-Garcia, 683 F.2d 1226,
1228-29 (9th Cir. 1982) (upholding § 1325 conviction because
independent circumstantial evidence corroborated defendant’s
confession that he entered United States illegally), cert. denied,
459 U.S. 1174 (1983).
Khazel contends that his statements are unreliable because he
has limited ability to communicate in English. Agent Kemmett
testified that Khazel’s English was “okay” and that Khazel was able
to form sentences. Khazel did not cross-examine the Agent
regarding that statement. Although Khazel required the aid of an
interpreter at trial, he offered no evidence to suggest that he did
not understand his conversation with the Agent. Accordingly, there
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is sufficient evidence that Khazel’s statements to the Agent were
reliable.
B.
Khazel contends that, even if his confession is considered,
the evidence does not prove beyond a reasonable doubt that he is an
alien or that he unlawfully entered the United States. We
disagree.
The evidence that Khazel admitted to entering the United
States from Mexico by crossing the Rio Grande River without
speaking to a person wearing a green shirt or a white shirt,
together with the evidence that Khazel, who did not have a passport
or other documents to show that he entered the country lawfully,
was found in a remote area, near the border, far from a port of
entry, wearing torn clothing, is sufficient to establish beyond a
reasonable doubt that Khazel unlawfully entered the United States.
See United States v. Arriaga-Segura, 743 F.2d 1434, 1435-36 (9th
Cir. 1984) (circumstantial evidence that defendants were stopped
near Mexican border, more than 12 miles from the nearest port of
entry in an area known for alien smuggling, without entry
documents, was sufficient to establish defendants’ unlawful entry).
There was also sufficient evidence that Khazel was an alien.
Khazel stated, in response to the Agent’s inquiry about his
citizenship, that he was “from Syria”; he had recently crossed the
border illegally; he failed to claim United States citizenship; and
he lacked a passport or other entry documents.
III.
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For the foregoing reasons, the judgment is
AFFIRMED.
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