Petition for Writ of Certiorari — Ignacio Arellano-Banuelos, Petitioner v. United States

No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

___________

IGNACIO ARELLANO-BANUELOS,

Petitioner

v.

UNITED STATES OF AMERICA

Respondent

___________

APPENDIX

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INDEX TO APPENDICES

Appendix A

Judgment and Opinion of Fifth Circuit, United States v. Arellano-Banuelos, 912

F.3d 862 (5th Cir. January 14, 2019)

Appendix B

Judgment and Opinion of Fifth Circuit, United States v. Arellano-Banuelos, 927

F.3d 355 (5th Cir. June 17, 2019)

Appendix C

Order Denying Petition for Panel Rehearing

Appendix D

Judgment and Sentence of the United States District Court for the Northern

District of Texas

APPENDIX A

Case: 17-11490

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-11490

UNITED STATES OF AMERICA,

FILED

January 14, 2019

Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

IGNACIO ARELLANO-BANUELOS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Ignacio 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.

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I.

Arellano-Banuelos 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 ArellanoBanuelos’s arrest, and placed a detainer on him the next day.

In July 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 ArellanoBanuelos complete Miranda warnings.

At the time of the interview, Agent Cruz was aware that ArellanoBanuelos 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.

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Agent 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. 1 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 purposes.”

Arellano-Banuelos 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.

At 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.

1

The grand jury returned a superseding indictment on April 4, 2017.

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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.

II.

Arellano-Banuelos 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).

Arellano-Banuelos 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 ArellanoBanuelos was not subjected to a custodial interrogation and denied the

motion. 2 When considering the denial of a motion to suppress, “this Court

Over a month after oral argument, the government submitted a letter to the

court arguing for the first time that any Miranda error was “invited error” because ArellanoBanuelos introduced a copy of the affidavit into evidence. Arellano-Banuelos, referring to

other portions of the record and citing caselaw, contends that he did not waive his challenge

to the suppression ruling. The government previously described the Miranda issue in initial

briefing as a “preserved issue with de novo review.” Even had the government not explicitly

asserted that the Miranda issue was preserved, “we generally do not consider contentions

raised for the first time at oral argument.” Martinez v. Mukasey, 519 F.3d 532, 545 (5th Cir.

2

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reviews factual findings for clear error and the ultimate constitutionality of

law enforcement action de novo.” United States v. Robinson, 741 F.3d 588, 594

(5th Cir. 2014).

A.

We first consider whether Agent Cruz’s August 2015 interview with

Arellano-Banuelos was an interrogation for purposes of Miranda. The

government argued before the district court that Cruz’s questioning was not

an interrogation because it was intended only to verify information for an

administrative deportation, not to elicit incriminating statements. In response,

Arellano-Banuelos asserted that an investigating officer’s subjective intent is

not determinative and that Miranda warnings are required whenever the

officer is aware that the information sought is potentially incriminating.

In its oral denial of the motion to suppress, the district court concluded

that Miranda warnings were not required because Agent “Cruz’s subjective

motivation was purely administrative” and “generally the purpose of the

screening interview is administrative.” The district court also found that

“[w]hether or not there is any decision made to prosecute criminally is not

made by the people in the screening function” and “at the time of the interview

there was no investigation into the defendant’s criminality.”

2008). We are even more reluctant to consider arguments raised after oral argument is

complete and the case has been submitted for decision. The proper time to closely examine

the record and develop legal defenses is before the completion of briefing, not in the months

after oral argument. The issue presented in the government’s letter is based on the trial

record and could easily have been addressed in the initial briefing. See United States v.

Guillen-Cruz, 853 F.3d 768, 777 (5th Cir. 2017) (declining to consider an argument not raised

in the appellee brief when “the facts supporting the Government’s argument . . . were readily

available prior to briefing”). The government acknowledges that this issue was not raised in

briefing or at argument, but points to no “exceptional circumstances,” Silber v. United States,

370 U.S. 717, 718 (1962), or “substantial public interests,” Guillen-Cruz, 853 F.3d at 777,

warranting consideration of its late-raised argument. We therefore decline to consider the

government’s new theory.

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As the Supreme Court has explained, “the term ‘interrogation’ under

Miranda refers not only to express questioning, but also to any words or actions

on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Innis, 446 U.S. at 301 (emphasis

added); see also Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir. 1989)

(“Interrogation is defined as words or actions that the police should know are

reasonably likely to elicit an incriminating response from the suspect.”). This

inquiry is “focuse[d] primarily upon the perceptions of the suspect, rather than

the intent of the police.” Innis, 446 U.S. at 301. Although an officer’s subjective

intent may be relevant to what an officer should know, proof of subjective

intent is not required to establish that an interrogation occurred. Id. at 301,

301 n.7.

That the initial purpose of an investigation is civil rather than criminal

does not render Miranda inapplicable. In Mathis v. United States, 391 U.S. 1

(1968), the Supreme Court held that Miranda warnings were required when a

government revenue agent questioned an inmate as part of a tax investigation.

The Court acknowledged that “a ‘routine tax investigation’ may be initiated for

the purpose of a civil action rather than criminal prosecution.” Id. at 4. But it

“reject[ed] the contention that tax investigations are immune from” Miranda,

noting that “tax investigations frequently lead to criminal prosecutions, just as

the one here did.” Id. The Court observed that “the investigating revenue agent

was compelled to admit” that “there was always the possibility during his

investigation that his work would end up in a criminal prosecution.” Id.

In this case, Agent Cruz’s own testimony makes clear that he should

have known that his questioning of Arellano-Banuelos was likely to elicit

incriminating responses. Agent Cruz testified that he reviewed ArellanoBanuelos’s file before the interview, and he was aware of Arellano-Banuelos’s

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prior removal from the United States. He also testified that, as part of his work

as an ICE deportation officer, he was aware of the offense of illegal reentry.

Like the investigating revenue officer in Mathis, Agent Cruz acknowledged

that he was aware that someone he interviewed could later be referred for

prosecution. Id.

Notably, Agent Cruz began the August 2015 interview by telling

Arellano-Banuelos that he already had his file and had “identified him as

somebody that had been removed before.” Cruz’s questioning then elicited a

confession to every element of the crime of illegal reentry. Specifically,

Arellano-Banuelos admitted that (1) he was an alien; (2) he was previously

deported; (3) he never applied to the Attorney General for permission to reenter

the United States after being deported; and (4) he reentered the United States.

See 8 U.S.C. § 1326(a); United States v. Martinez-Rios, 595 F.3d 581, 583 (5th

Cir. 2010). At trial, the government relied on the August 2015 affidavit, among

other evidence, to argue to the jury that Arellano-Banuelos had admitted his

guilt to every element of the offense.

As with tax inquiries, immigration investigations into previously

removed aliens “frequently lead to criminal prosecutions, just as the one here

did.” Mathis, 391 U.S. at 4. Agent Cruz was aware of the possibility that

Arellano-Banuelos could be referred for prosecution, and he should have

known that his questions were highly likely to elicit incriminating responses.

Under these circumstances, it is immaterial that Cruz’s supervisor—rather

than Cruz himself—made the decision to refer Arellano-Banuelos for

prosecution. Nor is it determinative that no criminal investigation was

underway at the time of the interview. See id. (noting that the criminal

investigation began eight days after the last interview).

The government offers no persuasive basis to distinguish Mathis from

the facts of this case. It relies primarily on United States v. Rodriguez, 356 F.3d

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254, 258–60 (2d Cir. 2004), and United States v. Salgado, 292 F.3d 1169 (9th

Cir. 2002), to argue that immigration screening interviews do not constitute

interrogation. But these cases involved interviews with immigration officers

that took place before the defendant illegally reentered the United States. The

Second and Ninth Circuits therefore concluded that immigration officials had

no reason to believe that the information they were gathering would

incriminate the defendants in a later prosecution for illegal reentry. See

Rodriguez, 356 F.3d at 260 (distinguishing Mathis because there was “no basis

in the record to conclude that Agent Smith knew or should have known that

the results of his interview would be used to support criminal charges resulting

from conduct of Rodriguez—conduct that would not take place until three years

thereafter”); Salgado, 292 F.3d at 1172–73 (explaining that the immigration

officer “had no reason to believe” that Salgado would later reenter the United

States illegally and be subject to prosecution for illegal reentry). Here, by

contrast, Agent Cruz was aware at the time of the interview that ArellanoBanuelos had a prior removal and could be prosecuted for illegal reentry.

Although we have recognized a “routine booking exception” to Miranda,

United States v. Virgen-Moreno, 265 F.3d 276, 293 (5th Cir. 2001), the

exception does not apply here. Miranda warnings are not required when an

officer asks only “routine booking question[s] . . . to secure the biographical

data necessary to complete booking or pretrial services.” Pennsylvania v.

Munoz, 496 U.S. 582, 601 (1990) (plurality opinion) (internal quotation

omitted). “The permissible booking questions include data such as a suspect’s

name, address, height, weight, eye color, date of birth, and current age.”

Presley v. City of Benbrook, 4 F.3d 405, 408 (5th Cir. 1993); see also VirgenMoreno, 265 F.3d at 293. “[Q]uestions designed to elicit incriminatory

admissions are not covered under the routine booking question exception.”

Virgen-Moreno, 265 F.3d at 293–94.

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Arellano-Banuelos was booked into state prison several months before

his interview with Agent Cruz, and the government has not argued that the

August 2015 ICE interview was a “booking” interview. Even if we were to

assume that the interview resembled a booking, Agent Cruz’s questions to

Arellano-Banuelos exceeded the scope of the routine booking exception. Cruz’s

questioning went beyond basic biographical information to include inquiries

into whether Arellano-Banuelos had been previously deported and whether he

had received permission from the Attorney General to reenter the United

States. We are aware of no authority suggesting that such questions can be

considered routine booking questions.

In light of Agent Cruz’s knowledge of Arellano-Banuelos’s prior removal

from the United States and the incriminating nature of his questions, we hold

that the August 2015 interview was an interrogation under Miranda.

B.

Even in the context of an interrogation, Miranda warnings are not

required unless an individual is “in custody for the purposes of Miranda.”

United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015). Custody is a term

of art, and prison inmates are not automatically considered “in custody” within

the meaning of Miranda caselaw. See Maryland v. Shatzer, 559 U.S. 98, 114

(2010). “When a prisoner is questioned, the determination of custody should

focus on all of the features of the interrogation” to determine whether the

circumstances of the interview “are consistent with an interrogation

environment in which a reasonable person would have felt free to terminate

the interview and leave.” Howes v. Fields, 565 U.S. 499, 514–15 (2012)

(internal quotation omitted). In the prison context, a prisoner is considered free

to leave if he is free to “return[] to his normal life” within the prison. Shatzer,

559 U.S. at 114.

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Custody determinations under Miranda present “a mixed question of law

and fact.” Thompson v. Keohane, 516 U.S. 99, 102 (1995). “Relevant factors

include the location of the questioning, its duration, statements made during

the interview, the presence or absence of physical restraints during the

questioning, and the release of the interviewee at the end of the questioning.”

Fields, 565 U.S. at 509 (citations omitted). The interview in this case took place

in an office within the prison. Agent Cruz and another ICE agent conducted

interviews in the same room simultaneously. Arellano-Banuelos was not in

handcuffs, although a prison guard was present during the interview. The

length of the interview is not apparent from the record. Agent Cruz testified

that he told Arellano-Banuelos that he had the right to refuse to answer

questions. But we perceive no evidence in the record as to whether ArellanoBanuelos was told that he was free to leave the interview.

In summarizing its reasons for denying the motion to suppress, the

district court stated that, “although certainly as a factual matter the defendant

was in custody, meaning he couldn’t get up and walk out, he was not required

to cooperate or to speak with Agent Cruz, and therefore I find that this was not

a custodial interrogation for Miranda purposes.” The district court made no

further findings on the custody issue. From this record, it is unclear whether

the district court made a custody determination; and if so, whether the district

court’s custody determination was based on an analysis of all the

circumstances of the interrogation or solely on Arellano-Banuelos’s status as a

prisoner.

Because the district court’s factual findings provide an inadequate basis

for appellate review, we remand for the district court to enter a supplemental

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order on the custody issue. 3 United States v. Cole, 444 F.3d 688, 690 (5th Cir.

2006); United States v. Runyan, 275 F.3d 449, 468 (5th Cir. 2001). The district

court may reopen the suppression hearing to take additional evidence. United

States v. Chavis, 48 F.3d 871, 873 (5th Cir. 1995). Once the record has been

supplemented, the case shall be returned to this court for further proceedings.

See Runyan, 275 F.3d at 468. We do not reach the other issues raised in this

appeal at this time.

III.

We REMAND to the district court with instructions that, within sixty

days after the entry of this remand, it provide a supplemental order setting

forth its findings as to whether Arellano-Banuelos was in custody under

Miranda v. Arizona. We retain jurisdiction over this appeal.

We note that Miranda violations are subject to harmless error analysis. See

Harryman v. Estelle, 616 F.2d 870, 875 (5th Cir. 1980). But it is the government’s burden to

establish that a constitutional error is harmless beyond a reasonable doubt. See United States

v. Jackson, 636 F.3d 687, 697 (5th Cir. 2011); United States v. Akpan, 407 F.3d 360, 377 (5th

Cir. 2005). Here, the government has offered no argument that the denial of the motion to

suppress was harmless.

3

11

APPENDIX B

Case: 17-11490

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Date Filed: 06/17/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-11490

FILED

June 17, 2019

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff - Appellee

v.

IGNACIO ARELLANO-BANUELOS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Ignacio Arellano-Banuelos was convicted by a jury of illegal reentry. On

appeal, he argues that his confession was admitted in violation of Miranda v.

Arizona, 384 U.S. 436 (1966), he was denied the opportunity to present a

statute of limitations defense, the district court erred in striking a prospective

juror for cause, and the admission of a certificate of non-existence of record

violated his rights under the Confrontation Clause.

In an earlier opinion, we remanded this case to the district court for

additional findings as to whether Arellano-Banuelos was “in custody” for

purposes of Miranda. See United States v. Arellano-Banuelos, 912 F.3d 862

(5th Cir. 2019). Our prior opinion recounts the pertinent factual background.

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See id. at 864–65. After considering the district court’s findings and the parties’

supplemental briefs, we now affirm.

I.

A.

Under Miranda, an individual subjected to “in-custody interrogation”

must first “be warned that he has a right to remain silent, that any statement

he does make may be used as evidence against him, and that he has a right to

the presence of an attorney, either retained or appointed.” 384 U.S. at 444–45.

These safeguards are required “[b]ecause custodial police interrogation, by its

very nature, isolates and pressures the individual,” and “heightens the risk

that an individual will not be accorded his privilege under the Fifth

Amendment not to be compelled to incriminate himself.” Dickerson v. United

States, 530 U.S. 428, 435 (2000) (cleaned up).

Arellano-Banuelos’s Miranda claim arises out of an August 2015

interview with Norberto Cruz, a U.S. Immigration and Customs Enforcement

(ICE) agent. At the time of the interview, Arellano-Banuelos was serving a

sentence of 15 months’ imprisonment on unrelated state offenses. Cruz and

two other ICE agents traveled to the state prison to interview 23 inmates,

including Arellano-Banuelos. The inmates were escorted to the office in groups

of five. A prison guard stood at the door of the office, which remained open.

Cruz and another ICE agent conducted simultaneous interviews at separate

tables, and a third agent photographed and fingerprinted the inmates after the

conclusion of their interviews. These interviews ordinarily lasted between ten

and thirty minutes, although the parties agree that Arellano-Banuelos’s

interview took about ten to fifteen minutes.

Cruz interviewed Arellano-Banuelos about his immigration status and

past deportation without providing complete Miranda warnings. Over the

course of this interview, Arellano-Banuelos acknowledged his alienage, his

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prior removal, and his lack of permission from the Attorney General to reenter

the United States. Arellano-Banuelos was later charged with illegal reentry,

and he moved to suppress his admissions to Cruz. The district court denied the

motion after finding that the August 2015 interview “was not a custodial

interrogation for Miranda purposes.”

In a prior opinion, we held that this interview was an “interrogation”

under Miranda because Cruz should have known that his questioning was

“reasonably likely to elicit an incriminating response from the suspect.”

Arellano-Banuelos, 912 F.3d at 866 (quoting Rhode Island v. Innis, 446 U.S.

291, 301 (1980)). We remanded to the district court for additional findings on

the issue of Arellano-Banuelos’s custodial status. Id. at 869. After hearing

further testimony and argument, the district court concluded that ArellanoBanuelos was not in custody under Miranda during the August 2015 interview.

We review the district court’s “factual findings for clear error and the

ultimate constitutionality of law enforcement action de novo.” United States v.

Robinson, 741 F.3d 588, 594 (5th Cir. 2014). “The clearly erroneous standard

is particularly deferential where denial of the suppression motion is based on

live oral testimony because the judge had the opportunity to observe the

demeanor of the witnesses.” United States v. Ortiz, 781 F.3d 221, 226 (5th Cir.

2015) (cleaned up). Further, we consider “the evidence in the light most

favorable to the prevailing party, which in this case is the government.” United

States v. Wright, 777 F.3d 769, 773 (5th Cir. 2015) (quoting United States v.

Santiago, 410 F.3d 193, 197 (5th Cir. 2005)).

B.

Custody for purposes of Miranda “is a term of art that specifies

circumstances that are thought generally to present a serious danger of

coercion.” Howes v. Fields, 565 U.S. 499, 508–09 (2012). This inquiry “is an

objective one—the subjective intent of the questioners and the subjective fear

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of the questioned person are irrelevant.” United States v. Melancon, 662 F.3d

708, 711 (5th Cir. 2011). We first consider whether “‘there is a ‘formal arrest

or restraint on freedom of movement’ of the degree associated with a formal

arrest.” Maryland v. Shatzer, 559 U.S. 98, 112 (2010) (quoting New York v.

Quarles, 467 U.S. 649, 655 (1984)). The Supreme Court has observed that

“[t]his test, no doubt, is satisfied by all forms of incarceration.” Id. Yet, “the

freedom-of-movement test identifies only a necessary and not a sufficient

condition for Miranda custody.” Id. Courts also consider “the additional

question [of] whether the relevant environment presents the same inherently

coercive pressures as the type of station house questioning at issue in

Miranda.” Fields, 565 U.S. at 509.

Although Arellano-Banuelos was incarcerated at the time of the August

2015 interview, the Supreme Court has instructed that “imprisonment alone

is not enough to create a custodial situation within the meaning of Miranda.”

Id. at 511. The Supreme Court drew this conclusion in part because of the

differences in circumstances between a prisoner serving a lawful sentence and

a suspect who “is arrested in his home or on the street and whisked to a police

station for questioning.” Id. “[T]he ordinary restrictions of prison life, while no

doubt unpleasant, are expected and familiar and thus do not involve the same

‘inherently compelling pressures’ that are often present when a suspect is

yanked from familiar surroundings in the outside world and subjected to

interrogation in a police station.” Id. (quoting Shatzer, 559 U.S. at 103).

Moreover, “[s]entenced prisoners, in contrast to the Miranda paradigm, are not

isolated with their accusers,” and their imprisonment “is relatively

disconnected from their prior unwillingness to cooperate in an investigation.”

Shatzer, 559 U.S. at 113.

Of course, prisoners sometimes are in custody for Miranda purposes. “An

inmate who is removed from the general prison population for questioning and

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is thereafter subjected to treatment in connection with the interrogation that

renders him ‘in custody’ for practical purposes will be entitled to the full

panoply of protections prescribed by Miranda.” Fields, 565 U.S. at 514 (cleaned

up); see also Melancon, 662 F.3d at 711 (explaining that a “prison inmate is not

automatically always ‘in custody’ within the meaning of Miranda, although the

prison setting may increase the likelihood that an inmate is in ‘custody’ for

Miranda purposes”) (cleaned up). The custody determination must “focus on

all of the features of the interrogation,” including “the language that is used in

summoning the prisoner to the interview and the manner in which the

interrogation is conducted.” Fields, 565 U.S. at 514.

In Fields, the Supreme Court held that a prisoner was not in custody

under Miranda when he was interviewed by two sheriff’s deputies regarding

allegations of sexual abuse of a child. Id. at 502–03, 514. The Court

acknowledged several factors that could support a finding of custody, including

that Fields “was not advised that he was free to decline to speak with the

deputies,” the “interview lasted for between five and seven hours,” the deputies

were armed, and one of the deputies “used a very sharp tone” and once used

profanity. Id. at 515. Other offsetting circumstances, however, led the Court to

determine that Fields was not in custody. Id. “Most important, [Fields] was

told at the outset of the interrogation, and was reminded again thereafter, that

he could leave and go back to his cell whenever he wanted.” Id. Additionally,

Fields “was not physically restrained or threatened,” he “was interviewed in a

well-lit, average-sized conference room,” “the door to the conference room was

sometimes left open,” and he “was offered food and water.” Id. The Court

concluded that “these objective facts are consistent with an interrogation

environment in which a reasonable person would have felt free to terminate

the interview and leave.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652,

664–65 (2004)).

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C.

In critical respects, Arellano-Banuelos’s August 2015 ICE interview had

fewer hallmarks of Miranda custody than the interview at issue in Fields. 1 The

interview was much shorter—lasting ten to fifteen minutes rather than five to

seven hours. See id. at 515. Multiple people were present in the interview room,

including another prisoner, and Arellano-Banuelos was not isolated with Cruz.

Cf. Miranda, 384 U.S. at 476 (emphasizing the “compelling influence” of

“lengthy interrogation or incommunicado incarceration”). The ICE agents were

not armed, and the prison guard did not have a firearm. Cf. Fields, 565 U.S. at

515. Although Cruz stated that he knew Arellano-Banuelos had been

previously removed, he did not raise his voice during the interview, use a sharp

tone of voice, or use profanity. Cf. id. at 503, 515.

Other circumstances are similar to the facts presented in Fields.

Arellano-Banuelos was not restrained during the interview, but he was

escorted to the interview by a prison guard and required to pass through locked

doors. See id. at 502–03; see also id. at 513 (noting that a prisoner may be

“taken, under close guard, to the room where the interview is to be held” but

“such procedures are an ordinary and familiar attribute of life behind bars”).

Arellano-Banuelos was not told in advance that he could decline the interview,

and the district court found that a reasonable person in his position would have

believed he was required to attend the interview. See id. at 515 (noting that

Fields “did not invite the interview or consent to it in advance, and he was not

advised that he was free to decline to speak with the deputies”).

Arellano-Banuelos points to several factors that he asserts distinguishes

his situation from the interrogation at issue in Fields. First, and most

We base our analysis on the district court’s factual findings as to what occurred

during the interview. Neither party argues that those findings are clearly erroneous, and we

perceive no clear error.

1

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significantly, he emphasizes that he was never explicitly told he was free to

leave the interview room. In Fields, by contrast, the Supreme Court

underscored that the “[m]ost important” factor in its custody determination

was that the prisoner “was told that he was free to end the questioning and to

return to his cell.” Id. at 515–17. This type of straightforward advisement

would certainly have strengthened the government’s case. See Wright, 777

F.3d at 776 (holding that a suspect was not in custody under Miranda in part

because of the “crucial” fact that he was repeatedly told “that he was ‘free to

leave’ and that he ‘wasn’t under arrest’”); see also Ortiz, 781 F.3d at 231

(explaining that statements that a suspect “was not under arrest . . . would

suggest to a reasonable person that he was free to leave, but they are less clear

than the statements in Wright, which answered the question directly”). Yet the

absence of an explicit statement that an interviewee is free to leave does not

compel a finding of Miranda custody. Other statements and circumstances

may similarly suggest to a reasonable person that he can choose to end the

questioning and leave. See Ortiz, 781 F.3d at 231–33.

Here, Cruz told Arellano-Banuelos that his statement had to be

voluntary and that the interview would terminate if he chose not to speak with

Cruz. Cruz also reviewed a form with Arellano-Banuelos advising him that his

“statement must be freely and voluntarily given” and that any statement “may

be used against [him] in any administrative or criminal proceeding.” 2 ArellanoBanuelos contends that such warnings are inadequate because Miranda’s

protections apply even absent proof that a statement was in fact involuntary.

Although Arellano-Banuelos presented a different account of Cruz’s

statements at the suppression hearing, he does not dispute on appeal the district court’s

findings as to what was said during the interview. We note that the district court made no

adverse credibility determinations, and we therefore do not rely on the government’s

suggestion that we should disbelieve Arellano-Banuelos’s testimony because he has in the

past received disciplinary infractions.

2

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We agree that telling an interviewee that his statement must be voluntary is

insufficient, alone, to satisfy the concerns underlying Miranda. See, e.g.,

Dickerson, 530 U.S. at 442 (holding that a multi-factor test focused on

“determining the voluntariness of a suspect’s confession” is not an “adequate

substitute for the warnings required by Miranda”). Such advisories are

nonetheless relevant factors in assessing the interview environment.

Moreover, Cruz did more than advise Arellano-Banuelos that his

statement must be voluntary and that any statements he made could be used

against him. Cruz testified that he tells inmates that they do not have to speak

with him and that, if they do not want to talk to him, the interview will end.

The district court found that Cruz explained this to Arellano-Banuelos. Given

the circumstances of the August 2015 ICE visit, with multiple inmates being

interviewed and processed on a tight time frame, the clear implication of

ending the interview is that Arellano-Banuelos could then leave and return to

his ordinary life in the prison. 3 A reasonable inmate would not expect to be

required to stay in the office after the termination of the interview. Indeed, two

other inmates did refuse to answer Cruz’s questions on the day of ArellanoBanuelos’s interview, and their interviews terminated. In this context, we

believe that the objective circumstances of the interview were “consistent with

an interrogation environment in which a reasonable person would have felt

free to terminate the interview and leave.” Fields, 565 U.S. at 515 (quotation

omitted).

Arellano-Banuelos highlights other aspects of the interview that he

contends created an unacceptable risk of coercion. He notes that he was placed

in a holding cell prior to the interview, he was required to stand in the hallway

We emphasize that officer statements must be interpreted in context. In a

different interrogation environment, the statement that someone is free to terminate an

interview may not signify that he is free to leave.

3

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before the interview without leaning on anything, and he was not given a

chance to use the restroom. Arellano-Banuelos also emphasizes, and the

district court found, that the administrative building where the interviews

were held experienced electrical problems that caused the lights to flicker and

interfered with the air conditioning system. Cruz testified that the office was

very hot and he wanted to get through the interviews as quickly as possible.

These facts indicate that the interview process was uncomfortable, and provide

some support for Arellano-Banuelos’s custody argument. Cf. id. at 515 (noting

that Fields “was ‘not uncomfortable’” in the interview room). Critically,

however, these conditions were not tied to Arellano-Banuelos’s cooperation

with Cruz. As discussed above, a reasonable inmate in Arellano-Banuelos’s

position would have believed he could terminate the interview and leave the

office. This exit option substantially reduces the coercive pressures of an

unpleasant interview environment.

Finally, Arellano-Banuelos contends that his situation is different from

that of Fields because Cruz had “the authority to affect the duration of his

sentence.” See id. at 512. Specifically, Arellano-Banuelos was told that if he

cooperated, this would reduce the amount of time he might spend in ICE

detention before his removal from the United States. This offer may have given

Arellano-Banuelos some “reason to think that the listeners ha[d] official power

over him.” Id. at 512 (quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990)).

There is no suggestion in the record, however, that Cruz had any authority to

influence the length of Arellano-Banuelos’s state prison sentence. Unlike a

suspect who “may be pressured to speak by the hope that, after doing so, he

will be allowed to leave and go home,” the only benefit that Cruz could offer

was a speedier deportation once Arellano-Banuelos completed his state

sentence. Id. at 511. In light of other factors pointing to an absence of custody,

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such an offer does not create the “inherently coercive” interview environment

contemplated by Miranda. Id. at 509.

Considering all the circumstances of the August 2015 interview, and

viewing the evidence in the light most favorable to the government, we hold

that Arellano-Banuelos was not in custody for purposes of Miranda. We

therefore affirm the district court’s denial of the motion to suppress.

II.

Arellano-Banuelos next contends that the district court erroneously

prevented him from presenting a statute of limitations defense to the jury. The

statute of limitations for illegal reentry is five years. 18 U.S.C. § 3282(a). The

limitations period “begins to run at the time the alien is ‘found,’ barring

circumstances that suggest that the INS should have known of his presence

earlier.” United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996).

Arellano-Banuelos was indicted in May 2016. Thus, the relevant question is

whether Arellano-Banuelos was “found” in the United States before May 2011.

For an alien to be “found” in the United States, the “alien’s physical

presence must be discovered and noted by immigration authorities and the

illegality of the alien’s presence must be reasonably attributable to

immigration authorities through the exercise of typical law enforcement

diligence.” United States v. Compian-Torres, 712 F.3d 203, 207 (5th Cir. 2013);

see also Santana-Castellano, 74 F.3d at 597 (explaining that immigration

authorities should know of an alien’s presence if, for example, “he reentered

the United States through an official border checkpoint in the good faith belief

that his entry was legal”). Arellano-Banuelos sought to present a statute of

limitations defense through evidence that he filed income tax returns and that

he put his name on his son’s birth certificate.

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The district court’s decision to admit or exclude evidence is reviewed for

abuse of discretion. 4 See United States v. Walker, 410 F.3d 754, 757 (5th Cir.

2005). Here, the district court properly excluded Arellano-Banuelos’s proposed

evidence as legally irrelevant. We held in Compian-Torres that knowledge of

an alien’s presence by other government officials, including state or federal

authorities, is not imputed to immigration authorities. See 712 F.3d at 207–08.

Arellano-Banuelos attempts to distinguish Compian-Torres as a case about the

sufficiency of the evidence rather than the exclusion of evidence. But the court

in Compian-Torres characterized the issue presented as “a pure question of

law,” and proceeded to resolve the legal question of what it means for an

immigrant to be “found” in the United States. Id. at 207. Under this caselaw,

the district court correctly concluded that Arellano-Banuelos’s tax returns and

his son’s birth certificate are not probative of when he was found in the United

States by immigration authorities.

For the same reasons, the district court did not abuse its discretion in

refusing to instruct the jury on a statute of limitations defense. See United

States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017) (noting the district court’s

“substantial latitude in formulating jury instructions”). There was no evidence

in the trial record that immigration authorities had actual or constructive

knowledge of Arellano-Banuelos’s presence in the United States before May

2011. See United States v. Branch, 91 F.3d 699, 712 (5th Cir. 1996) (explaining

that the district court may “refuse to give a requested instructor that lacks

sufficient foundation in the evidence”). We perceive no error in the district

court’s rulings on the statute of limitations.

The government asserts that Arellano-Banuelos may have forfeited his

challenge to the district court’s exclusion of evidence because he did not attempt to introduce

the evidence at trial. Because we find no error in the district court’s ruling under any

standard of review, we need not address the forfeiture issue.

4

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III.

Arellano-Banuelos’s challenge to jury selection is similarly unavailing.

The district court struck a prospective juror for cause after the juror stated

that he would have difficulty being fair and impartial because he believed that

the immigration laws were too harsh. “We review the district court’s ruling as

to juror impartiality only for manifest abuse of discretion.” United States v.

Munoz, 15 F.3d 395, 397 (5th Cir. 1994). Moreover, “[i]n noncapital cases,

removal of a venire member generally is not grounds for reversal unless ‘the

jurors who actually sat were not impartial within the meaning of the Sixth

Amendment.’” United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998)

(quoting United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.

1994)). Arellano-Banuelos has not shown that the district court manifestly

abused its discretion in striking the prospective juror, nor has he offered any

basis to question the impartiality of the jury empaneled in his case.

IV.

For the first time on appeal, Arellano-Banuelos argues that the

admission of a certificate of non-existence of record (CNR) violated his rights

under the Confrontation Clause. The CNR certified that there is no record that

Arellano-Banuelos received permission to return to the United States following

his prior deportation. Because Arellano-Banuelos did not object to the

admission of the CNR, our review is for plain error. See United States v.

Martinez-Rios, 595 F.3d 581, 584 (5th Cir. 2010). We will find plain error only

if, among other factors, the district court made a “clear or obvious” error.

Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018).

The Confrontation Clause of the Sixth Amendment guarantees a

criminal defendant the right to cross-examine witnesses who provide

testimonial statements, unless the declarant is unavailable and the defendant

had a prior opportunity for cross-examination. See Crawford v. Washington,

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541 U.S. 36, 68 (2004). We have held that a CNR qualifies as a testimonial

statement. See Martinez-Rios, 595 F.3d at 586. Arellano-Banuelos therefore

had the right “to be confronted with the analyst who made the certification.”

Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011); see also Martinez-Rios,

595 F.3d at 586 (finding constitutional error because the person who “prepared

the CNR” did not testify at trial).

Priscilla Dobbins, an officer with U.S. Citizenship and Immigration

Services (USCIS), authored and signed the CNR in this case. She certified that

she had the authority “to ascertain whether there are particular documents in”

an alien’s file. She further attested that USCIS systems were searched to

ensure that no application for permission to reenter the United States after

removal existed in Arellano-Banuelos’s file. Dobbins testified at trial and

Arellano-Banuelos had the chance to cross-examine her, but he chose not to do

so. Arellano-Banuelos argues that the admission of the CNR nonetheless

violated his rights under the Confrontation Clause because Dobbins did not

personally check all the systems that led to the certification. Instead, a staff

member ran the initial checks and created printouts.

Arellano-Banuelos does not offer legal authority for the proposition that

every individual involved in the preparation of a document such as a CNR must

testify at trial. Cf. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1

(2009) (explaining that “it is not the case, that anyone whose testimony may

be relevant in establishing the chain of custody, authenticity of the sample, or

accuracy of the testing device, must appear in person as part of the

prosecution’s case”). Because Arellano-Banuelos had an opportunity to crossexamine the individual who prepared and signed the CNR, he cannot show a

“clear or obvious” Confrontation Clause error.

V.

The judgment of the district court is AFFIRMED.

13

APPENDIX C

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Document: 00515046008

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Date Filed: 07/23/2019

APPENDIX D

Case 3:16-cr-00213-N Document 80 Filed 12/15/17

Page 1 of 5 PageID 406

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STATES OF AMERICA

§

§

§

§

§

§

§

v.

IGNACIO ARELLANO-BANUELOS

JUDGMENT IN A CRIMINAL CASE

Case Number: 3:16-CR-00213-N(1)

USM Number: 14279-479

Erin Leigh Brennan

Defendant’s Attorney

THE DEFENDANT:

☐ pleaded guilty to count(s)

pleaded guilty to count(s) before a U.S.

☒ Magistrate Judge, which was accepted by the

☐

☐

court.

pleaded nolo contendere to count(s) which was

accepted by the court

was found guilty on count(s) after a plea of not

guilty

Count 1s of the Superseding Indictment filed April 4, 2017.

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

Offense Ended

Count

8:1326(A) and (B)(2) Illegal Reentry After Removal From The United States

05/08/2015

1s

The defendant is sentenced as provided in pages 2 through 5 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

☐ The defendant has been found not guilty on count(s)

☒ Count(s) Count 1 of the Original Indictment ☒ is ☐ are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

DECEMBER 4, 2017

Date of Imposition of Judgment

Signature of Judge

DAVID C. GODBEY, UNITED STATES DISTRICT JUDGE

Name and Title of Judge

DECEMBER 15, 2017

Date

Case 3:16-cr-00213-N Document 80 Filed 12/15/17

AO 245B (Rev. TXN 9/17) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 2 of 5 PageID 407

Judgment -- Page 2 of 5

IGNACIO ARELLANO-BANUELOS

3:16-CR-00213-N(1)

IMPRISONMENT

Pursuant to the Sentencing Reform Act of 1984, but taking the Guidelines as advisory pursuant to United States v. Booker,

and considering the factors set forth in 18 U.S.C. Section 3553(a), the defendant is hereby committed to the custody of the United

States Bureau of Prisons to be imprisoned for a total term of:

66 (Sixty-Six) months as to count 1s.

☒ The court makes the following recommendations to the Bureau of Prisons:

That the defendant be designated to a facility in Texas, if possible.

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐

a.m.

☐

p.m.

on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

_______________________________________

UNITED STATES MARSHAL

By

_______________________________________

DEPUTY UNITED STATES MARSHAL

Case 3:16-cr-00213-N Document 80 Filed 12/15/17

AO 245B (Rev. TXN 9/17) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 3 of 5 PageID 408

Judgment -- Page 3 of 5

IGNACIO ARELLANO-BANUELOS

3:16-CR-00213-N(1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of : No Term of Supervised Release

Imposed.

MANDATORY CONDITIONS

1.

You must not commit another federal, state or local crime.

2.

You must not unlawfully possess a controlled substance.

3.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future

4.

5.

☐

substance abuse. (check if applicable)

You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence

of restitution. (check if applicable)

You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

☐

6. ☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et

seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which

you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

7.

☐ You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any additional

conditions on the attached page.

Case 3:16-cr-00213-N Document 80 Filed 12/15/17

AO 245B (Rev. TXN 9/17) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 4 of 5 PageID 409

Judgment -- Page 4 of 5

IGNACIO ARELLANO-BANUELOS

3:16-CR-00213-N(1)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

TOTALS

Assessment

$100.00

JVTA Assessment*

$.00

Fine

$.00

Restitution

$.00

☐ The determination of restitution is deferred until

An Amended Judgment in a Criminal Case (AO245C) will be entered

after such determination.

The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18 U.S.C.

§ 3664(i), all nonfederal victims must be paid before the United States is paid.

☐ Restitution amount ordered pursuant to plea agreement $

☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

☐

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☐ the interest requirement is waived for the

☐ fine

☐ restitution

☐ the interest requirement for the

☐ fine

☐ restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

Case 3:16-cr-00213-N Document 80 Filed 12/15/17

AO 245B (Rev. TXN 9/17) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 5 of 5 PageID 410

Judgment -- Page 5 of 5

IGNACIO ARELLANO-BANUELOS

3:16-CR-00213-N(1)

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

☐

Lump sum payments of $

due immediately, balance due

☐

not later than

, or

☐

in accordance

D,

☐

E, or

☐

F below; or

B

☐

Payment to begin immediately (may be combined with

☐

C,

☐

D, or

C

☐

Payment in equal

A

☐

C,

☐

(e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

D

☐

F below); or

over a period of

(e.g., 30 or 60 days) after the date of this judgment; or

Payment in equal 20 (e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

☐

over a period of

(e.g., 30 or 60 days) after release from imprisonment to a term of

supervision; or

E

☐

Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

☒

Special instructions regarding the payment of criminal monetary penalties:

It is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1s which shall be due

immediately. Said special assessment shall be paid to the Clerk, U.S. District Court.

.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility

Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

 Joint and Several

See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and Several

Amount, and corresponding payee, if appropriate.

☐

☐

☐

☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same loss that gave rise

to defendant's restitution obligation.

The defendant shall pay the cost of prosecution.

The defendant shall pay the following court cost(s):

The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.