902 F. 2d 1580 - United States v. Vargas-Victoria

MEMORANDUM*

Jose Guadalupe Vargas-Victoria appeals his conviction for illegal re-entry into the United States after deportation in violation of 8 U.S.C. Sec. 1326 (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

We reject Vargas-Victoria's argument that the district court erred in not dismissing his case because the government's alleged eleven-day delay in bringing him before a magistrate violated Fed.R.Crim.Pro. 5(a) and denied him due process. We review de novo this mixed question of law and fact in which the dispositive facts are undisputed. See United States v. McConney, 728 F.2d 1195, 1200-1204 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). An indictment may not be dismissed where prejudice has not been shown. See United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985). Regardless of the merits of his claim that the government unreasonably delayed bringing him before a magistrate, Vargas-Victoria points to no prejudice from the alleged delay. Vargas-Victoria does not contend that he would have been released from jail if he was brought before the magistrate on the day the INS took him into administrative custody; indeed, he argues that the government had sufficient grounds to arrest him at that time. And Vargas-Victoria made no incriminating statements to INS agents during the eleven-day period in question.

We also believe that the trial court did not abuse its discretion, see United States v. Smith, 609 F.2d 1294, 1302 (9th Cir.1979), in admitting INS documents reflecting Vargas-Victoria's prior deportation (such as Vargas-Victoria's prior warrants of arrest and his warrants of deportation). Such legal documents are admissible under the public records exception to the hearsay rule. See Fed.R.Evid. 803(8)(B); United States v. Hernandez-Rojas, 617 F.2d 533, 534-35 (9th Cir.), cert. denied, 449 U.S. 864 (1980). The district court could properly have concluded, based on the testimony of Agent Wolstenholme concerning how deportation records are generally kept, and the testimony of Agent Shepherd, concerning his maintenance of Vargas-Victoria's INS file since receiving it, that the documents were authentic and reliable. See Fed.R.Evid. 901(b)(7); United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.1985).

We find, though, that the trial court committed clear error, see United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir.1988), in admitting statements of Vargas-Victoria made in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Vargas-Victoria's refusal to sign a waiver was an assertion of his right to remain silent. See United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir.1984). Agent Shepherd's "subsequent exhortation to 'answer questions anyway' was improper," id. at 1278, at least in the absence of an explicit additional warning that any such answers would be used against Vargas-Victoria in spite of his refusal to sign a waiver. See id. at 1278-79.

The trial court's error was harmless beyond a reasonable doubt, however, because the prosecution properly admitted INS records containing the same information contained in Vargas-Victoria's statements. Although Vargas-Victoria claims that these records should also have been excluded as the fruit of his illegally obtained statements, we have recently held that such non-testimonial physical evidence discovered as the result of statements obtained in violation of Miranda is admissible so long as the illegally obtained statements were made voluntarily. United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir.1990). We review the voluntariness question de novo, id., and find upon our examination of the testimony of Vargas-Victoria and Agent Shepherd that the illegally obtained statements were voluntary. Vargas-Victoria's alleged mistaken impression that the government would not use his statements against him except in a deportation proceeding does not render them involuntary. Id. Because there is no testimony of coercive or deceptive police conduct, we find that the statements were voluntary. See id.

AFFIRMED.