from the United States District Court for the Northern
District of Texas
ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
Arellano-Banuelos appeals his conviction by a jury for
illegal reentry. He argues that the district court erred by
denying his motion to suppress his confession, preventing him
from presenting a statute of limitations defense, striking a
prospective juror for cause, and admitting into evidence a
certificate of non-existence of record. We remand for the
district court to make additional findings as to whether
Arellano-Banuelos was "in custody" within the
meaning of Miranda v. Arizona, 384 U.S. 436 (1966).
We do not reach the other issues at this time.
was born in Mexico in 1981 and entered the United States as a
child. In 2001, he pleaded guilty to aggravated robbery and
was sentenced to 10 years imprisonment. He was deported to
Mexico in 2009, but later reentered the United States. On May
7, 2015, he was arrested by Texas law enforcement officers on
an outstanding warrant. United States Immigration and Customs
Enforcement (ICE) was notified of Arellano-Banuelos's
arrest, and placed a detainer on him the next day.
2015, Arellano-Banuelos pleaded guilty in state court to
improper photography or visual recording and to attempted
evading arrest. He was sentenced to 15 months imprisonment on
each count. In August 2015, Arellano-Banuelos was interviewed
in state prison by Norberto Cruz, an agent with ICE's
Criminal Alien Program. The interview took place in an office
within the prison, and Arellano-Banuelos was brought in by a
prison guard. The prison guard remained present during the
interview. According to Agent Cruz, he told Arellano-Banuelos
that he had the right to refuse to answer questions. But it
is undisputed that Agent Cruz did not provide
Arellano-Banuelos complete Miranda warnings.
time of the interview, Agent Cruz was aware that
Arellano-Banuelos had been previously removed from the United
States and that he was subject to an ICE detainer. Agent Cruz
asked Arellano-Banuelos a series of questions, including his
country of citizenship, place of birth, whether he had ever
been ordered deported, when he last entered the United
States, and whether he ever applied to the Attorney General
for permission to reenter the United States after he was
deported. Agent Cruz recorded Arellano-Banuelos's answers
to these questions on an affidavit form, and
Arellano-Banuelos signed the affidavit.
Cruz's supervisor later referred Arellano-Banuelos for
criminal prosecution for illegal reentry. On May 4, 2016,
Arellano-Banuelos was released from state prison into ICE
custody. On May 25, 2016, he was indicted for illegal
reentry. Before trial, Arellano-Banuelos moved to
suppress his August 2015 admissions to Agent Cruz, arguing
that these statements were obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). The
district court denied the motion after an evidentiary
hearing, holding that the August 2015 interview "was not
a custodial interrogation for Miranda
also filed a motion to dismiss the indictment on statute of
limitations grounds, arguing that federal immigration
authorities had reason to know of his presence in the United
States more than five years before he was indicted. The
district court denied the motion. Arellano-Banuelos later
sought to introduce his income tax returns and his son's
birth certificate into evidence to support a statute of
limitations defense. The district court ruled that this
evidence was inadmissible because it was legally irrelevant.
The court later refused Arellano-Banuelos's request for a
jury instruction on the statute of limitations, reasoning
that there was no evidence in the record that ICE was aware
of his presence in the United States more than five years
before his indictment.
trial, the government called Agent Cruz to testify about his
interview with Arellano-Banuelos and introduced a copy of the
August 2015 affidavit into evidence. The government argued to
the jury that this affidavit demonstrated that
Arellano-Banuelos admitted every element of the offense of
illegal reentry. The government also introduced into evidence
a certificate of non-existence of record (CNR) certifying
that there was no record that Arellano-Banuelos received
permission to reenter the United States after his prior
removal. Priscilla Dobbins, an officer with United States
Citizenship and Immigration Services (USCIS), testified that
she signed the CNR and attested to the fact that a record
search was conducted to attempt to locate an application for
permission to reenter. Arellano-Banuelos did not object to
the admission of the CNR or to Dobbins's testimony. After
hearing this and other evidence, the jury found
Arellano-Banuelos guilty of illegal reentry. He was sentenced
to 66 months imprisonment.
challenges the district court's denial of his motion to
suppress his August 2015 affidavit and admissions to Agent
Cruz. The Supreme Court held in Miranda v. Arizona
that "the Fifth and Fourteenth Amendments'
prohibition against compelled self-incrimination require[s]
that custodial interrogation be preceded by advice to the
putative defendant that he has the right to remain silent and
also the right to the presence of an attorney."
Edwards v. Arizona, 451 U.S. 477, 481-82 (1981).
Miranda warnings are required only if an individual
is both "in custody" and "subjected to
interrogation." Rhode Island v. Innis, 446 U.S.
291, 300 (1980).
moved to suppress his admissions on the grounds that he was
questioned while in custody without the benefit of
Miranda warnings. After an evidentiary hearing, the
district found that Arellano-Banuelos was not subjected to a
custodial interrogation and denied the motion. When considering
the denial of a motion to suppress, "this Court reviews
factual findings for clear error and the ultimate