United States v. Carlos Marguet-Pillado

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50130
Plaintiff-Appellee,
v.  D.C. No.
3:06-CR-2505-IEG
CARLOS JESUS MARGUET-PILLADO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
March 3, 2009—Pasadena, California
Filed March 27, 2009
Before: Alfred T. Goodwin, Ferdinand F. Fernandez, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Fernandez
3655
UNITED STATES v. MARGUET-PILLADO 3659
COUNSEL
Gregory T. Murphy, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
David P. Curnow and Steve Miller, U.S. Attorney’s Office,
San Diego, California, for the plaintiff-appellee.
OPINION
FERNANDEZ, Circuit Judge:
Carlos Jesus Marguet-Pillado (Carlos Marguet) appeals his
conviction under 8 U.S.C. § 1326(a) for being a removed
alien who was found in the United States. Principally he
argues that he is, in fact, a citizen of the United States because
he has derivative citizenship and that, in any event, evidence
was improperly admitted at trial. We affirm in part, but
reverse his conviction.
BACKGROUND
Carlos Marguet was born in Tijuana, Mexico, on November
4, 1968, to Juana Pillado, a Mexican citizen, and an unknown
biological father.1 Michael L. Marguet (Michael Marguet), a
United States citizen, is not Carlos Marguet’s biological
father and was not married to Carlos Marguet’s mother at the
time that Carlos Marguet was born. However, Michael Mar-
guet was named as his father on a Mexican birth certificate
filed August 22, 1973, and has held out Carlos Marguet as his
own son. In November of 1973, an “Application for Status as
Permanent Resident” (the Application) was filed with the
1
Some of the facts mentioned in this background discussion are found
in the record because they were presented to the district court at various
hearings, but, as we will discuss later, those facts were not necessarily
presented at trial.
3660 UNITED STATES v. MARGUET-PILLADO
United States Immigration and Naturalization Service. It was
technically filed by Carlos Marguet, but, in fact, because Car-
los Marguet was a small child, it was actually prepared and
signed by Michael Marguet. In an interview with a United
States Immigration Examiner, Michael Marguet indicated that
he wanted to marry Carlos Marguet’s mother and had regis-
tered Carlos Marguet as his own child so that both of them
could immigrate to the United States and live with Michael
Marguet. However, he said, Carlos Marguet “was not his real
child.” On the date of the interview, Carlos Marguet became
a lawful permanent resident.
While in the United States, Carlos Marguet was convicted
of second degree burglary and attempted murder, and was
released from prison in 2002. In 2006, Carlos Marguet was
taken into custody again on an unrelated incident, and was
later turned over to the immigration authorities. On Septem-
ber 22, 2006, an Immigration Judge (IJ) ordered Carlos Mar-
guet deported. The IJ rejected the argument that Carlos
Marguet had derivative United States citizenship through
Michael Marguet.
Carlos Marguet was subsequently indicted for the crime of
being a removed alien found in the United States in violation
of 8 U.S.C. § 1326(a). He filed a motion to dismiss the Indict-
ment on the ground that it was defective for failure to allege
that he knew he was an alien, an element he believed was
essential to a § 1326 charge. The district court denied that
motion. Then, he filed a second motion to dismiss the Indict-
ment. This time it was on the ground that the underlying
deportation proceeding was defective. He made that claim on
the basis that the proceeding was “fundamentally unfair”
because the IJ applied the wrong law in assessing whether
Carlos Marguet could establish derivative citizenship through
Michael Marguet. The district court denied that motion also.
At trial, the parties stipulated that Carlos Marguet voluntar-
ily reentered the United States after being removed therefrom,
UNITED STATES v. MARGUET-PILLADO 3661
and that he was thereafter found in California on October 20,
2006. They also stipulated that Carlos Marguet never received
the express consent of the Attorney General or of the Secre-
tary of the Department of Homeland Security to reapply for
admission.
A bench trial was then held. During the trial, Carlos Mar-
guet objected to the introduction of the Application for the
purpose of showing that he was born in Mexico and was a cit-
izen of that country. He asserted that the statements in the
Application violated his Constitutional right to confront wit-
nesses against him, and that they were inadmissible hearsay.
The district court overruled his objections. At the close of the
government’s case, Carlos Marguet made a motion for judg-
ment of acquittal and asserted that the government had not
proven his alienage beyond a reasonable doubt. The district
court denied that motion, found him guilty as charged in the
Indictment, and ultimately imposed sentence.
This appeal followed.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court’s denial of the motion to dis-
miss the Indictment de novo. See United States v. Camacho-
Lopez, 450 F.3d 928, 929 (9th Cir. 2006). However, we
review the district court’s factual findings for clear error. Id.We review de novo the district court’s determinations of
claimed violations of the Confrontation Clause. See United
States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.
2001). Moreover, we review de novo the district court’s con-
struction of hearsay rules, but review for abuse of discretion
the court’s determination to admit hearsay evidence. See id.If we determine that the district court committed a nonconsti-
3662 UNITED STATES v. MARGUET-PILLADO
tutional error, we will reverse if it is more likely than not that
the error affected the verdict. See United States v. Chu Kong
Yin, 935 F.2d 990, 994 (9th Cir. 1991).
We review de novo the district court’s denial of a motion
for acquittal. See United States v. Carranza, 289 F.3d 634,
641 (9th Cir. 2002). In reviewing a challenge to the suffi-
ciency of the evidence, we will uphold the conviction if
“ ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ”
Id. at 641-42.
DISCUSSION
While Carlos Marguet raises a number of claims, his princi-
pal claim relies upon his assertion that he is a United States
citizen. He argues that, despite the fact that he is not related
to Michael Marguet by blood, he is nonetheless entitled to
derivative citizenship through Michael Marguet. We will,
therefore, take up that question first.
I. Derivative Citizenship
It is a commonplace that the traditional ways of transmit-
ting and acquiring citizenship at birth are jus soli and jus
sanguinis. In this country, the former is provided for by the
Constitution,2 and the latter is provided for by the enactments
of Congress.3 It would be a bit surprising to discover that over
the decades Congress had selected a method that relied on
neither concept, but, rather, was content to have United States
citizenship acquired at birth by a person born out of wedlock,
who was not born on United States soil and who, at the time,
2
U.S. Const. amend. XIV § 1.
3
See Miller v. Albright, 523 U.S. 420, 424, 118 S. Ct. 1428, 1432, 140
L. Ed. 2d 575 (1998).
UNITED STATES v. MARGUET-PILLADO 3663
did not have a natural parent who was a United States citizen.
As it is, there is no cause for surprise.
[1] Certainly, we know that as statutory law has stood since
1986 an actual blood relationship between at least one United
States parent and the child is explicitly required. The applica-
ble statutory section reads as follows as far as a father is con-
cerned:
The provisions of paragraphs (c), (d), (e), and (g) of
section 1401 of this title . . . shall apply as of the date
of birth to a person born out of wedlock if —
(1) a blood relationship between the person
and the father is established by clear and
convincing evidence,
(2) the father had the nationality of the
United States at the time of the person’s
birth,
(3) the father (unless deceased) has agreed
in writing to provide financial support for
the person until the person reaches the age
of 18 years, and
(4) While the person is under the age of 18
years —
(A) the person is legitimated . . . ,
(B) the father acknowledges paternity of
the person . . . , or
(C) the paternity of the person is estab-
lished by adjudication of a competent
court.
3664 UNITED STATES v. MARGUET-PILLADO
8 U.S.C. § 1409(a) (1986).4 However, when Carlos Marguet
was born in 1968, the statute read somewhat differently: It did
not specifically mention a blood relationship on its face. It
provided:
The provisions of paragraphs (3) to (5), and (7) of
section 1401(a) . . . of this title shall apply as of the
date of birth to a child born out of wedlock on or
after the effective date of this chapter, if the paternity
of such child is established while such child is under
the age of twenty-one years by legitimation.
8 U.S.C. § 1409(a) (1952). That is the section that we must
apply to Carlos Marguet’s claim,5 and he asserts that its fail-
ure to specifically mention a blood relationship necessarily
means that none was required, so that children born out of
wedlock can be dubbed United States citizens even though
neither natural parent was a citizen. In that he errs.
[2] In Miller, a majority of the justices indicated an under-
standing that our traditions, and the 1952 version of the stat-
ute, look to a blood (biological) relationship between the
alleged father and the child at birth. Justice Stevens, speaking
for himself and for Chief Justice Rehnquist, put it this way:
“As originally enacted in 1952, § 1409(a) required simply that
‘the paternity of such child [born out of wedlock] is estab-
lished while such child is under the age of twenty-one years
by legitimation.’ . . . The section offered no other means of
proving a biological relationship.” Miller, 523 U.S. at 435,
118 S. Ct. at 1437 (citation omitted). He also noted the impor-
tance of that relationship. As he said: “There is no doubt that
4
The details of the law are different where the child’s mother is a United
States citizen. See 8 U.S.C. § 1409(c) (1986). That does not concern us
here.
5
See Ablang v. Reno, 52 F.3d 801, 803 (9th Cir. 1995); Runnett v.
Shultz, 901 F.2d 782, 783 (9th Cir. 1990); see also Minasyan v. Gonzales,
401 F.3d 1069, 1075 (9th Cir. 2005).
UNITED STATES v. MARGUET-PILLADO 3665
ensuring reliable proof of a biological relationship between
the potential citizen and its citizen parent is an important gov-
ernmental objective.” Id. at 436, 118 S. Ct. at 1438. And Jus-
tice Breyer, speaking for himself and Justices Souter and
Ginsburg, in commenting on the whole historical range of
statutes, stated that: “American statutory law has consistently
recognized the rights of American parents to transmit their
citizenship to their children.” Id. at 477, 118 S. Ct. at 1458(Breyer, J., dissenting) (citations omitted). He went on to note
that “ever since the Civil War, the transmission of American
citizenship from parent to child, jus sanguinis, has played a
role secondary to that of the transmission of a citizenship by
birthplace, jus soli.” Id. at 478, 118 S. Ct. at 1459 (citations
omitted). As we see it, the Justices’ understanding of the
nature of our law merely bespoke what no doubt seemed
apparent to everyone at that time and before.
A focus on the form of the 1952 statute underscores the
correctness of that understanding. While Carlos Marguet
would have us look at § 1409(a) in isolation and, thus, declare
that “paternity” of a child born out of wedlock does not
encompass a biological relationship, to do so would ignore the
context of the statute. The section itself refers to applying
paragraphs (3), (4), (5) and (7) of 8 U.S.C. § 1401(a)6 when
reaching a decision. But each of those sections refers to a
child “born . . . of” parents at least one of whom is a United
States citizen. There can be little doubt that the “born of” con-
cept generally refers to a blood relationship. In fact we said
as much in United States v. Flores-Villar, 536 F.3d 990 (9th
Cir. 2008). In that case, Flores was born out of wedlock to a
United States citizen father and a Mexican citizen mother on
October 7, 1974. Id. at 994. We referred to the 1952 version
of the statute in question here, and noticed its reference to
“paternity”7 and to the requirement that a person be “born . . .
6
Paragraphs (3), (4), (5) and (7) appear in the current version of § 1401
as paragraphs (c) (d) (e) and (g) respectively.
7
Id. at 995.
3666 UNITED STATES v. MARGUET-PILLADO
of”8 a United States citizen, and then observed that the law
applied if “a United States citizen father had a child out of
wedlock . . . .”9 It is difficult to see how a man could “have”
a child “out of wedlock” if he was not that child’s biological
father.
[3] We recognize that we have held that when a child is
born during a marriage and at least one parent is a United
States citizen, a blood relationship is not absolutely required.
See Scales v. INS, 232 F.3d 1159, 1166 (9th Cir. 2000); see
also Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1093 (9th
Cir. 2005) (so indicating, but, in fact, there was a blood rela-
tionship with the citizen father). That erosion of a biological
nexus is, of course, itself a reflection of the tradition that a
man is considered to be the natural father of a child born dur-
ing wedlock. In any event, the erosion does not help Carlos
Marguet because he was not only born out of wedlock, but
also born years before Michael Marguet married Carlos Mar-
guet’s noncitizen mother, that is, Carlos Marguet surely could
not have become a citizen at his birth. See Marquez-Marquez
v. Gonzales, 455 F.3d 548, 559 (5th Cir. 2006). In other
words, the 1952 version still required a biological relationship
as far as Carlos Marguet is concerned.
Nor do earlier iterations of the law which was to be applied
when a child was born out of wedlock suggest that our read-
ing of the 1952 enactment is incorrect. For example, the pro-
visions of the 1940 Act were much the same as the 1952
provisions,10 and in referring to the former act we said that “an
illegitimate child cannot claim citizenship via jus sanguinis
until her parentage is established.”11 And the provisions of
8
Id. at 994.
9
Id. at 995.
10
See Ablang, 52 F.3d at 803; Runnett, 901 F.2d at 783 n.1.
11
Ablang, 52 F.3d at 805. We added: “[T]he Government naturally
requires proof of paternity before determining someone to be the legal
father.” Id.UNITED STATES v. MARGUET-PILLADO 3667
prior acts were not treated any differently in that respect. See,
e.g., Weedin v. Chin Bow, 274 U.S. 657, 661-675, 47 S. Ct.
772, 773-778, 71 L. Ed. 1284 (1927) (considering Acts of
1790, 1795 and 1798); Wauchope v. United States Dept. of
State, 985 F.2d 1407, 1410 (9th Cir. 1993) (considering 1934
Act).
[4] In short, we find no authority for holding that a child
who was born out of wedlock, neither of whose natural par-
ents was a United States citizen at the time of his birth, never-
theless acquired derivative citizenship at birth because of
some later action by a United States citizen. Indeed, it would
seem surd to say that a child born in wedlock must have a
United States citizen parent at birth, but a child born outside
of wedlock need not.
[5] Thus, Carlos Marguet was not entitled to derivative citi-
zenship because he did not have a blood relationship to
Michael Marguet.
II. The Indictment
Carlos Marguet also appeals the district court’s refusal to
dismiss the Indictment because, he says, he was improperly
removed in the first place and the Indictment did not plead
that he had knowledge that he was an alien. Both of those
arguments must fail.
As to the first, in order to collaterally attack the removal
order upon which the Indictment must ultimately rest,12 he
must show that he exhausted his administrative remedies, was
deprived of the opportunity for judicial review, and was sub-
jected to a fundamentally unfair order.13 The parties dispute
12
8 U.S.C. § 1326(a).
13
8 U.S.C. § 1326(d); United States v. Becerril-Lopez, 541 F.3d 881,
885 (9th Cir. 2008); United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1047-48 (9th Cir. 2004).
3668 UNITED STATES v. MARGUET-PILLADO
whether he did exhaust his administrative remedies, and
whether he was denied the right to judicial review. Given the
valetudinarian nature of the information regarding appeal
rights appearing in the administrative record, we are not
entirely convinced that he made a considered and intelligent
waiver of his appeal rights. See United States v. Mendoza-
Lopez, 481 U.S. 828, 839-40, 107 S. Ct. 2148, 2156, 95 L. Ed.
2d 772 (1987); Ubaldo-Figueroa, 364 F.3d at 1048-49;
United States v. Pallares-Galan, 359 F.3d 1088, 1096-97 (9th
Cir. 2004). However, we need not resolve that waiver issue.
In any event, Carlos Marguet cannot show that the proceeding
was fundamentally unfair because his argument is based upon
his claim that the IJ erred in finding a need for a blood rela-
tionship between him and Michael Marguet. See United States
v. Gonzalez-Valerio, 342 F.3d 1051 (9th Cir. 2003). As we
have demonstrated above, there was no legal error in that
regard. See also Martinez-Madera v. Holder, No. 06-73157,
slip op. 3357, 3360 (9th Cir. Mar. 16, 2009).
Carlos Marguet’s second attack on the Indictment fares no
better. He asserts that in a prosecution under 8 U.S.C.
§ 1326(a), the government must plead and prove that the
defendant had knowledge that he was an alien when he reen-
tered the country. As he concedes, however, we have already
held to the contrary. See Flores-Villar, 536 F.3d at 999; see
also United States v. Rivera-Sillas, 417 F.3d 1014, 1020 (9th
Cir. 2005).
III. Evidence of Mexican Citizenship
In an attempt to prove that Carlos Marguet was not a citi-
zen of the United States, the government submitted the Appli-
cation from his immigration file (A-file) in which he applied
for permanent resident status on the basis of his relationship
to Michael Marguet. But Carlos Marguet was just a five-year-
old boy at that time and, in fact, the document was filled out
and signed by Michael Marguet. In it Michael Marguet
UNITED STATES v. MARGUET-PILLADO 3669
declared that Carlos Marguet was born in Mexico and was a
citizen of that country.
At trial, Carlos Marguet objected to the admission of the
document on the basis that it violated his confrontation rights
under the Constitution,14 and that it should have been
excluded in any event because it was hearsay.
A. Confrontation Rights
[6] Carlos Marguet relies upon Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) for
his claim that his confrontation rights were violated. In Craw-
ford, id. at 68, 124 S. Ct. at 1374, the Court determined that
when an out of court testimonial statement is offered against
a defendant at trial, the Sixth Amendment requires that he be
given the opportunity to confront and cross-examine the per-
son who made that statement. The only exception is when the
witness is not available and there was a prior opportunity for
cross-examination. Id. On the other hand, when the evidence
in question is nontestimonial, confrontation is not necessarily
required. Id. The Court did not undertake “to spell out a com-
prehensive definition of ‘testimonial,’ ” although it did note
that police interrogations and testimony before a grand jury,
or at a preliminary hearing, or at trial would be within that
category. Id.[7] We have been required to fill the gap and have declared
that a “warrant of deportation is nontestimonial because it was
not made in anticipation of litigation, and because it is simply
a routine, objective, cataloging of an unambiguous factual
matter.” United States v. Bahena-Cardenas, 411 F.3d 1067,
1075 (9th Cir. 2005). Similarly, a notation on the warrant that
the alien was removed was not testimonial. Id. And we have
agreed that “ ‘Crawford at least suggests that the determina-
tive factor in determining whether a declarant bears testimony
14
U.S. Const. amend. VI.
3670 UNITED STATES v. MARGUET-PILLADO
is the declarant’s awareness or expectation that his or her
statements may later be used at a trial.’ ” United States v. Lar-
son, 460 F.3d 1200, 1213 (9th Cir. 2006) (citation omitted).15
[8] In the case at hand, we follow those guideposts and
determine that the Application was not testimonial. It was
merely a statement of facts designed to have the government
agree to receive Carlos Marguet as a permanent resident — in
other words, it was just the setting out of what Michael Mar-
guet saw as noncontroversial factual information regarding
Carlos Marguet. It surely was not set forth with an eye to a
trial proceeding of any kind. As it was, no criminal proceed-
ing commenced until more than thirty years later. By then
Carlos Marguet had resided in the United States for a long
time, committed crimes, been removed, and then returned.
Surely none of that was in Michael Marguet’s contemplation
when he sought to have a little boy admitted into the United
States.
[9] There was no violation of the Constitution when the
Application was admitted into evidence.
B. Evidentiary Error
Carlos Marguet also asserts that the district court erred
when it admitted the Application, which was in his A-file,
under the public records exception to the hearsay rule. See
Fed. R. Evid. 803(8). We agree.
[10] No doubt the Application can be said to document the
activities of a governmental agency and to document the
observations of a responsible government officer to some
extent. That would allow admission of the document for those
15
This opinion was vacated when the case was taken en banc. United
States v. Larson, 471 F.3d 1359 (9th Cir. 2006). However, the portion
cited here was then adopted in the en banc opinion. United States v. Lar-
son, 495 F.3d 1094, 1099 n.4 (9th Cir. 2007) (en banc).
UNITED STATES v. MARGUET-PILLADO 3671
purposes. See Bahena-Cardenas, 411 F.3d at 1074-75; United
States v. Loyola-Dominguez, 125 F.3d 1315, 1317-18 (9th
Cir. 1997). However, the only part of the document truly rele-
vant here is Michael Marguet’s hearsay statement that Carlos
Marguet was born in and was a citizen of Mexico. Michael
Marguet, of course, had no governmental duties whatsoever.
See Chu Kong Yin, 935 F.2d at 999. The government’s con-
tention that the Application is admissible under the business
records exception contains the same flaw. See Fed. R. Evid.
803(6); Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1046
(9th Cir. 1999). In either case, there is at least one more layer
of hearsay, and to be admissible there must be an exception
for that layer also. See Sana, 181 F.3d at 1045; United States
v. Hajda, 135 F.3d 439, 444 (7th Cir. 1998).
[11] However, the government made no attempt in the dis-
trict court and made no attempt in its brief to argue that the
statements of Michael Marguet are admissible as a result of
some other hearsay exception. Thus, the government has
waived any argument to that effect, and we are constrained to
find error in the admission of the statements of Michael Mar-
guet. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999); Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir.
1996).
[12] Moreover, the error was prejudicial. That is, it is more
likely than not that the error affected the verdict. See Chu
Kong Yin, 935 F.2d at 994. There can be little doubt of that.
In fact, aside from the documents reflecting the previous
administrative proceedings for Carlos Marguet and his
removal, the Application was the only evidence admitted at
trial which tended to show Carlos Marguet’s alienage. But we
have made it quite clear that the removal documents alone
will not suffice to prove alienage beyond a reasonable doubt.
See United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir.
1997); see also United States v. Smith-Baltiher, 424 F.3d 913,
921 (9th Cir. 2005). In other words, on the trial record, absent
3672 UNITED STATES v. MARGUET-PILLADO
the improperly admitted hearsay, Carlos Marguet would not
have suffered a conviction.16
[13] Thus, we must reverse and remand for further proceed-
ings.
CONCLUSION
Carlos Marguet became a legal permanent resident at an
early age, but when he grew up he engaged in a course of
criminal activity that ultimately resulted in his removal to
Mexico. He returned, was prosecuted, and asserted that he
was a United States citizen. As we have explained, he does
not have derivative citizenship because his stepfather,
Michael Marguet, is not related to him by blood, and was not
even married to Carlos Marguet’s mother at the time of Carlos
Marguet’s birth.
However, in order to convict him, the government did have
to prove that Carlos Marguet was not a United States citizen,
even if it did not have to prove his knowledge of that fact.
And, while evidence outside of the trial record — some sub-
mitted by Carlos Marguet himself — strongly points to the
conclusion that he was born in and was a citizen of Mexico,
the evidence admitted at the trial itself established those
“facts” through the use of improperly admitted hearsay.
Whether Carlos Marguet’s approach to this case so obne-
bulated the proceedings that the government was not suffi-
ciently prepared, or whether some other consideration
16
To the extent that Carlos Marguet contends that the reversal should be
one for insufficiency of the evidence, we do not agree. In assessing that
question, we consider all of the evidence, including that which was
improperly admitted. See United States v. Vizcarra-Martinez, 66 F.3d
1006, 1009 (9th Cir. 1995); see also United States v. McKoy, 771 F.2d
1207, 1215 (9th Cir. 1985). Here, the sum total of the evidence would suf-
fice to enable a rational trier of fact to find that Carlos Marguet was guilty
beyond a reasonable doubt. See Carranza, 289 F.3d at 641-42.
UNITED STATES v. MARGUET-PILLADO 3673
accounts for the result, is not for us to say. The fact remains
that the conviction cannot stand.
REVERSED and REMANDED for further proceedings.