United States v. Vasquez-Cortez

United States Court of Appeals
for the Fifth Circuit

No. 19-50245

United States of America,

Plaintiff—Appellee,

versus

Marvin Danilo Vasquez-Cortez,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-91-1

Before Jones, Haynes, and Ho, Circuit Judges.
Per Curiam:*
Marvin Danilo Vasquez-Cortez appeals his conviction for illegal
reentry into the United States, arguing his rights under the Sixth
Amendment’s Confrontation Clause were violated by the admission of a
certificate of nonexistence of record (CNR) at trial. We conclude that any
error was harmless and so the district court is AFFIRMED.

*
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not be published and is not precedent except under the limited circumstances set forth in
5
TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 30, 2020

Lyle W. Cayce
Clerk
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No. 19-50245
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I. Background
Vasquez-Cortez was charged with illegal reentry into the United
States. On February 22, 2019, the Government filed a notice of intent to
introduce at trial a CNR showing that a diligent search failed to disclose any
records indicating Vasquez-Cortez had obtained permission to reapply for
admission to the United States. In a joint motion in limine filed March 5,
2019, Vasquez-Cortez raised a Confrontation Clause objection to admitting
the CNR into evidence without live testimony from the person who prepared
the CNR. The Government responded that Vasquez-Cortez failed to timely
file his objection pursuant to Federal Rule of Evidence 803(10). At the
pretrial hearing, the district court agreed with the Government and denied
Vasquez-Cortez’s objection as untimely.
At trial, the district court overruled Vasquez-Cortez’s renewed
objection to admitting the CNR into evidence. The Government read the
CNR aloud to the jury but did not make the individual who prepared the
CNR available for cross-examination. Instead, the Government presented
testimony from Border Patrol agent Christian Maldonado, who explained the
CNR indicated that, based on a search of multiple government databases,
there was no record showing Vasquez-Cortez applied for or received
permission to reenter the United States. The Government also presented
testimony from two other Border Patrol agents who stated they found
Vasquez-Cortez near the border at night, lying face down and wearing dark
clothing that was wet from the waist down as if he had gone through a canal
on the north side of the border fence. The agents further testified that
Vasquez-Cortez told them he was from El Salvador, did not have any
documents permitting him to be in the United States, and entered illegally by
jumping over the border fence.
The jury found Vasquez-Cortez guilty, and he was sentenced to time
served. He filed a timely notice of appeal.
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II. Discussion
This court reviews alleged Confrontation Clause violations de novo,
subject to harmless error analysis. See United States v. Tirado-Tirado,
563 F.3d 117, 122 (5th Cir. 2009). The Sixth Amendment affords a criminal
defendant the right “to be confronted with the witnesses against him.” U.S.
Const. amend. VI. The parties agree the CNR is a testimonial statement
subject to the confrontation right, but they disagree as to whether Vasquez-
Cortez waived his Confrontation Clause challenge by failing to object within
the time period required by Rule 803(10). This court need not decide the
issue, however, because any Confrontation Clause error in this case was
harmless.
To convict Vasquez-Cortez for illegal reentry under 8 U.S.C. § 1326,
the Government was required to prove Vasquez-Cortez (1) was an alien;
(2) was previously removed from the United States; (3) knowingly entered
or was found in the United States; and (4) did not have permission to reenter.
United States v. Martinez-Rios, 595 F.3d 581, 583 (5th Cir. 2010). The CNR
relates to the fourth factor. For a preserved constitutional error to be
harmless, there must be no “reasonable possibility that the evidence
complained of might have contributed to the conviction.” United States v.
Duron-Caldera, 737 F.3d 988, 996 (5th Cir. 2013) (quotation marks and
citation omitted). Relevant considerations include the importance of the
challenged testimony in the Government’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony on material points, the extent of cross-
examination otherwise permitted, and the overall strength of the
Government’s case. See id. The conviction “must stand if, upon a reading
of the trial record, the court is firmly convinced that the evidence of
petitioner’s guilt was overwhelming and that the jury would have reached the
same result without the tainted evidence.” Zilka v. Estelle, 529 F.2d 388, 392
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(5th Cir. 1976). It is the Government’s burden to show the error is “harmless
beyond a reasonable doubt.” Tirado-Tirado, 563 F.3d at 126.
Although the Government pointed to the CNR as one piece of
evidence showing Vasquez-Cortez did not have the required permission to
reenter, it spent significantly more time at trial emphasizing other evidence
proving this element of the crime, including the Border Patrol agents’
testimony.
In addition to the CNR, the Government presented testimony from
two Border Patrol agents who stated they found Vasquez-Cortez lying face
down near the border at night, wearing dark clothing that was wet from the
waist down as if he had gone through a canal on the north side of the border
fence. The agents further testified Vasquez-Cortez told them he was from El
Salvador, did not have documents permitting him to be in the United States,
and entered illegally by jumping over the border fence.
The CNR was also cumulative because “substantial evidence
supports the same facts and inferences” as those in the CNR. See United
States v. Demmitt, 706 F.3d 665, 673 (5th Cir. 2013). The circumstances of
Vasquez-Cortez’s arrest and the Border Patrol agents’ testimony that he told
them he did not have documents permitting him to be in the United States
and had illegally crossed the border all support the facts and inferences in the
CNR. Thus, there is ample evidence corroborating the CNR; in contrast,
there is no evidence in the record contradicting the CNR. The overwhelming
evidence of Vasquez-Cortez’s guilt in the record supports the conclusion that
the jury would have reached the same result without the CNR. See Zilka,
529 F.2d at 392.
This court reached the same conclusion in United States v. Bedolla-
Talavera, 593 F. App’x 413 (5th Cir. 2015) (per curiam), an unpublished
opinion that involved similar facts and an identical Confrontation Clause
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challenge to the admission of a CNR.
1
In Bedolla-Talavera, the trial evidence
established the defendant was found lying on the ground facedown near the
Rio Grande, wearing pants that were wet below the knees. Id. at 414. The
defendant admitted he had no documentation and told a Border Patrol agent
he was a Mexican citizen. Id. Based on this evidence, this court stated it was
convinced that “any error resulting from admission of the CNR was
harmless.” Id.
Given the foregoing, the Government has met its burden of showing
any error arising from the admission of the CNR was harmless beyond a
reasonable doubt. See Zilka, 529 F.2d at 392. The district court’s judgment
is AFFIRMED.

1
Although unpublished opinions issued in or after 1996 “are not precedent”
except in limited circumstances, 5
TH CIR. R. 47.5.4, they are “highly persuasive” authority
where, as here, they “specifically reject an argument identical to the one raised,” United
States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015) (quotation marks and citation omitted).

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