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--------------------------------------------------------------------------------
Case Name:
USA V GALINDO-GALLEGOS 
Case Number: Date Filed: 
99-50585 03/27/01 
--------------------------------------------------------------------------------
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
                                                     No. 99-50585
v.
                                                     D.C. No.
JULIAN GALINDO-GALLEGOS, aka                                                     
                                                     CR-98-02021-IEG
Jose Reyes-Olague, aka Aurelio
Garcia-Chairez, aka Jose Olague                       OPINION
Reyes,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding

Argued and Submitted
July 12, 2000--Pasadena, California

Filed March 27, 2001

Before: Pamela Ann Rymer, Andrew J. Kleinfeld, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Kleinfeld;
Concurrence by Judge Paez
_________________________________________________________________
COUNSEL

Debra A. DiIorio, DiIorio & Hall, San Diego, California, for
the appellant.

Kevin J. Kelly, Assistant U.S. Attorney, San Diego, Califor-
nia, for the appellee.
_________________________________________________________________
OPINION

KLEINFELD, Circuit Judge:

This criminal appeal involves an issue of when a Miranda
warning must precede questioning and how broadly the aggra-
vated felony of alien smuggling sweeps.

Facts

Two border patrol agents were looking for aliens about
1800 feet north of the Mexican border. They saw a large
group of people running, assumed they were illegal aliens
because of the location and the fact that they were running,
and stopped them. One of the agents told the people to sit
down on the ground. The other agent chased those who ran
away. Among those he caught was the appellant, Galindo-

                               3810
Gallegos. Once they had the 15 or 20 people seated, an agent
asked them what country they were from and whether they
had a legal right to be in the United States. Galindo-Gallegos
said that he was from Mexico and had no such right. The bor-
der patrol agents did not advise the group of their Miranda
rights prior to this questioning. After Galindo-Gallegos admit-
ted that he was an alien illegally present in the United States,
he and others were handcuffed and put into one of the vehi-
cles.

Galindo-Gallegos was charged (under one of his aliases)
with being a deported alien found in the United States1 and
convicted after trial. He moved to suppress his admissions,
but his motion was denied and his admissions came into evi-
dence. The trial judge made an express finding that his admis-
sions in the field "are significant and material to my
determination of alienage." Galindo-Gallegos had previously
been convicted of "transportation of illegal aliens."2 Based on
that conviction, he received the 16-level upward adjustment
under the sentencing guidelines3 where the previous deporta-
tion followed conviction of an aggravated felony.

Analysis

I. Miranda.

Galindo-Gallegos argues that his admissions of alienage
and being in the United States illegally should have been sup-
pressed, because he was not advised of his Miranda4 rights
before he made them. He argues that he should be treated as
having been in custody when he made them, because a rea-
sonable person would not have felt free to leave. Because he
tried to run away, and was caught and brought back, it was
_________________________________________________________________
1 See 8 U.S.C. S 1326.
2 See 8 U.S.C. S 1324(a)(1)(A)(ii).
3 See U.S.S.G. S 2L1.2.
4 See Miranda v. Arizona, 384 U.S. 436 (1966).

                               3811
quite clear to him that he was in fact not free to leave. And,
he argues, the border patrol officer expected the answers to
her questions to be incriminating and expected to conclude
that he was in the country illegally, because the group was
spotted running just north of the border, and he tried to run
away.

The trial judge found that the officers "in no way coerced
these people to talk" in the field, and the statements were vol-
untary. She also found that "these are questions that need to
be routinely asked of individuals who are caught or appre-
hended near the border" and that the questions "really are
designed to elicit what could be ultimately incriminating evi-
dence," but that the questioning did not require a prior
Miranda warning. Whether a defendant was constitutionally
entitled to a Miranda warning is an issue of law we review de
novo.5 Whether a person is "in custody" for purposes of
Miranda is essentially a question of fact reviewed for clear
error.6

We have decided many Miranda cases with language that
seems to bear on various circumstances of this case, but few
that are factually analogous. Quotations from cases, shorn of
their factual context, are not much help in making a decision.
We therefore focus on the cases with some factual similarity
or usable analog. The material factual circumstances here are
that (1) the questioning took place out of doors; (2) the loca-
tion was isolated, away from view by the general public, but
there were 15 or 20 aliens and only 2 law enforcement offi-
cials; (3) no one was handcuffed, but everyone was required
to sit on the ground; (4) the questions were a necessary predi-
cate to letting anyone go free, but were also reasonably likely
to elicit incriminating admissions by those for whom the facts
were incriminating; and (5) the group of aliens had been
_________________________________________________________________
5 See United States v. Nieblas, 115 F.3d 703, 705 (9th Cir. 1997).
6 See People of the Territory of Guam v. Palomo, 35 F.3d 368, 375 (9th
Cir. 1994).

                               3812
caught running in an area very near the border, and Galindo-
Gallegos had persisted in running away from the border patrol
but was caught and returned to the group that had been seated
on the ground.

The critical Supreme Court decision is Berkemer v. McCarty.7
The question there was whether roadside questioning of a
motorist detained on a traffic stop amounted to custodial
interrogation for purposes of Miranda. It was even more plain
there than here that the motorist's next stop was jail, because
he was weaving all over the road and too impaired to perform
a field sobriety test without falling down.8 The officer decided
as soon as he saw the man step out of his car, before he even
talked to him, that he would be taken into custody. 9 And it
was at least as plain that the officer's questions were likely to
elicit incriminating answers. The officer asked the man if he
had been using intoxicants, and he answered that he had
drunk "two beers" and "smoked several joints of marijuana."10

Nevertheless, the Court held that roadside questioning of a
motorist detained on a traffic stop was not custodial interroga-
tion for purposes of Miranda.11  There were two reasons. First,
such traffic stops are "presumptively temporary and brief,"
because even if guilty of a traffic infraction, most people just
get a traffic ticket and go on their way.12 Second, and most
important to this case, "the typical traffic stop is public." The
importance of its being public is that "exposure to public view
both reduces the ability of an unscrupulous policeman to use
illegitimate means to elicit self-incriminating statements and
diminishes the motorist's fear that, if he does not cooperate,
_________________________________________________________________
7 468 U.S. 420 (1984).
8 See id. at 423.
9 See id.
10 See id.
11 See id. at 438-40.
12 See id. at 437.

                               3813
he will be subjected to abuse."13 For these reasons the Court
held that such questioning should be treated as within the cat-
egory of a Terry stop, not as custodial interrogation for
Miranda purposes. The policeman's intent to arrest was
immaterial, because subjective intention was immaterial. "The
only relevant inquiry is how a reasonable man in the suspect's
position would have understood his situation." 14 The hypo-
thetical reasonable man is one who is not breaking the law in
so serious a way that arrest is likely,15  so even though a rea-
sonable man as impaired as the driver in Berkemer would
expect to get arrested and jailed if he was caught, he was
treated as subject only to a Terry stop. 16

We decided that a Miranda warning should have been
given in another case of questioning in a remote location,
United States v. Beraun-Panez.17 Our reasons in that case
highlight the factual differences between that case and the one
before us. The differences and our Beraun-Panez  reasoning
show why we should apply the Berkemer analysis to the case
at bar. In Beraun-Panez, we emphasized that the suspect was
_________________________________________________________________
13 Id. at 438.
14 Id. at 442.
15 See United States v. Wauneka , 770 F.2d 1434, 1438 (9th Cir. 1985)
(Defining reasonable man in these circumstances as a "reasonable inno-
cent person.").
16 We applied Berkemer to an analogous situation in United States v.
Montero-Camargo. 177 F.3d 1113, 1121 (9th Cir. 1999), vacated, 192
F.3d 946, result reinstated, 208 F.3d 1122 (9th Cir. 2000). That case
involved a roadside stop of aliens illegally in the country. We held that no
Miranda warning was necessary, following Berkemer. The case is without
force as precedent, because we withdrew the opinion when we decided to
rehear the case en banc (on a different issue, whether there was sufficient
reason for the stop). Although we reached the same conclusion, we did not
reinstate the panel decision. A withdrawn panel decision that has not been
reinstated, though its outcome is reaffirmed after rehearing en banc, is
without precedential force. This opinion is in accord with the panel deci-
sion in Montero-Camargo.
17 812 F.2d 578 (9th Cir. 1987).

                               3814
separated from his co-worker in a remote rural location,18
while in Berkemer the questioning took place in public. We
quoted the reason why Berkemer said that the public location
mattered, that it "both reduces the ability of an unscrupulous
policeman to use illegitimate means to elicit self-
incriminating statements and diminishes the motorist's fear
that, if he does not cooperate, he will be subjected to abuse."19

[1] We should follow Berkemer. It is materially analogous.
In the case at bar, there were two border patrol officers and
15 or 20 suspects who were stopped. Though not as public as
a traffic stop on a busy street, it was public for the reason that
mattered; no alien had reason to fear abuse by an officer and
an unscrupulous officer would have been deterred from using
illegitimate means by all the witnesses. The Supreme Court
explained in Miranda that the new procedure it required was
intended to guard against police brutality and the "third
degree," so that the dignity and integrity of an individual is
protected from police tactics designed to overcome a sus-
pect's will.20 There is not much risk of the harms Miranda
protects against, either in the roadside stop circumstances of
Berkemer, or the more rural stop here, because the public set-
ting gives rise to a likelihood of witnesses to any misconduct.
Where officers apprehend a substantial number of suspects
and question them in the open prior to arrest, this is ordinarily
a Terry stop, not custodial questioning, under Berkemer.
Denial of the motion to suppress was proper.
_________________________________________________________________
18 See id. at 581-82.
19 Id. (quoting Berkemer , 468 U.S. at 438).
20 See Miranda, 384 U.S. 447-49, 481-82; see also Arizona v. Mauro,
481 U.S. 520, 529-30 (1987) (noting that purpose behind Miranda was
"preventing government officials from using the coercive nature of con-
finement to extract confessions that would not be given in an unrestrained
environment").

                               3815
II. Sufficiency of evidence.

Galindo-Gallegos argues that there was insufficient evi-
dence that he was an alien, so his conviction for being an
alien found in the United States after deportation cannot
stand. There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. 21

Much of the evidence of alienage consisted of Galindo-
Gallegos's repeated admissions that he was in fact an alien.
But as his brief says, "this case is perhaps somewhat unusual
in that the defense offered at trial was that the defendant, Mr.
Galindo, was a proven liar." This defense was not frivolous.
The defense put on evidence that Galindo-Gallegos had
repeatedly lied, both under oath and not under oath, in his var-
ious immigration and deportation proceedings. And the
defense obtained testimony from one of the border patrol
agents that sometimes American citizens who face criminal
charges falsely claim to be deportable aliens, because it is
much better to be put on a bus to Mexico than sent to jail in
the United States.

[2] Nevertheless, the evidence was sufficient under the
applicable standard. The trier of fact could decide to believe
Galindo-Gallegos's admissions of alienage. A defendant's
admissions that he is an alien, together with a deportation
order, suffice to establish alienage.22  Here, the government
presented evidence of Galindo-Gallegos's prior deportation
orders, his repeated admissions of alienage during the numer-
ous prior deportation hearings, his admission of alienage at
the scene of his apprehension, and the circumstances sur-
_________________________________________________________________
21 See United States v. Deeb, 175 F.3d 1163, 1168 (9th Cir. 1999).
22 See United States v. Ramirez-Cortez, 213 F.3d 1149, 1158 (9th Cir.
2000); United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir. 1997);
United States v. Contreras, 63 F.3d 852, 858 (9th Cir. 1995).

                               3816
rounding his apprehension, all of which together sufficiently
would enable a rational trier of fact to conclude that alienage
had been established beyond a reasonable doubt.

III. Aggravated felony.

Galindo-Gallegos's sentencing guideline level was adjusted
upward 16 levels based on his prior conviction for an aggra-
vated felony.23 The predicate felony was a conviction for
transporting aliens within the United States, knowing that
they were there illegally and in furtherance of the illegal entry
or presence.24 The conviction was not for smuggling aliens
into the country, just for transporting them after they were in.
The guideline refers to the statute defining aggravated felonies,25
and the statute has a parenthetical phrase referring to "smug-
gling."26 Because Galindo-Gallegos was convicted only of
transporting illegal aliens who were already in the United
States, not of smuggling them in, he argues that the enhance-
ment was improperly applied to him. We review de novo
whether the aggravated felony adjustment is applicable to the
statute of conviction.27

[3] The statute on "bringing in and harboring aliens"28
criminalizes numerous categories of conduct. The first section
applies to one who brings an alien to the United States at a
place other than a proper port of entry.29  The second applies
_________________________________________________________________
23 See U.S.S.G. S 2L1.2.
24 See 8 U.S.C. S 1324(a)(1)(A)(ii).
25 See 8 U.S.C. S 1101(a)(43).
26 See 8 U.S.C. S 1101(a)(43)(N) which includes as an aggravated felony
"an offense described in paragraph (1)(A) or (2) of [8 U.S.C. S 1324(a)]
(relating to alien smuggling) . . . ."
27 See United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. 1999).
28 See 8 U.S.C. S 1324.
29 See 8 U.S.C. S 1324(a)(1)(A)(i) which applies criminal penalties to
any person who:

                               3817
to one who knowingly transports an illegal alien within the
United States.30 The aggravated felony statute refers to both
of these sections, and then has the parenthetical "relating to
alien smuggling."31 There are several subsequent sections, not
embraced by the aggravated felony subsection for alien smug-
gling, such as harboring smuggled aliens.

Appellant argues, correctly, that we use a "categorical"
analysis, which is to say, we look at the statute, not the con-
duct that was the basis for conviction.32  He then argues that
because the aggravated felony statute expressly uses the par-
enthetical phrase "relating to smuggling," and his offense of
conviction consisted only of transporting aliens already in the
United States and not smuggling them across the border, the
aggravated felony provision excludes him from coverage.

[4] We reject Galindo-Gallegos's reading, because it does
not make sense of all the words of the statute. All subsection
_________________________________________________________________
      [K]nowing that a person is an alien, brings to or attempts to bring
      to the United States in any manner whatsoever such person at a
      place other than a designated port of entry or place other than as
      designated by the Commissioner, regardless of whether such
      alien has received prior official authorization to come to, enter,
      or reside in the United States and regardless of any future official
      action which may be taken with respect to such alien.
30 See 8 U.S.C. S 1324(a)(1)(A)(ii) which applies criminal penalties to
those who:

      [K]nowing or in reckless disregard of the fact that an alien has
      come to, entered, or remains in the United States in violation of
      law, transports, or moves or attempts to transport or move such
      alien within the United States by means of transportation or oth-
      erwise, in furtherance of such violation of law.
31 See 8 U.S.C. S 1101(a)(43)(N) which includes as an aggravated felony
"an offense described in paragraph (1)(A) or (2) of [8 U.S.C. S 1324(a)]
(relating to alien smuggling) . . . ."
32 See United States v. Bustamante Lomas, 30 F.3d 1191, 1193 (9th Cir.
1994).

                               3818
(ii) "transporting" offenses involve aliens who are already in
the United States. The aggravated felony provision expressly
includes subsection (ii) "transporting" offenses. Therefore the
aggravated felony provision has to include transporting aliens
who are already in the United States. Also, the subsection (ii)
"transporting" offense requires, as one of its elements, "know-
ing or in reckless disregard of the fact that an alien has come
to, entered, or remains in the United States in violation of
law." Thus all the aliens who can be the predicate of a "trans-
porting" offense under subsection (ii) are known to the
offender not to be entitled to be here. That means that, except
perhaps for some who came in legally but overstayed their
visas, a subsection (ii) transporter knows that his conduct "re-
lates" to alien smuggling. And that is just what the aggravated
felony parenthetical says, "relating" to smuggling.

Moreover, in other subsections, Congress used a perfectly
clear approach to articulate a limiting rather than descriptive
parenthetical. For example, in subsection J, there is a descrip-
tive parenthetical using the same "relating to " form as the
subsection N parenthetical at issue in this case, followed by
a limiting parenthetical, "if it is a second or subsequent
offense."33 Subsection J can only be read as using the "relat-
ing to" language as descriptive and the "if " language as limit-
ing, so there is no reason to doubt that Congress meant the
"relating to" language in N to be descriptive as well.34 The
_________________________________________________________________
33 See 8 U.S.C. S 1101(a)(43)(J) which reads:

      [A]n offense described in section 1962 of title 18, United States
      Code (relating to racketeer influenced corrupt organizations), or
      an offense described in section 1084 (if it is a second or subse-
      quent offense) or 1955 of that title (relating to gambling
      offenses), for which a sentence of one year imprisonment or more
      may be imposed"

(emphasis added).
34 See id.; see also 8U.S.C. S 1101(a)(43)(F) which reads "a crime of
violence (as defined in S 16 of Title 18, but not including a purely political
offense) for which a term of imprisonment is at least one year." (emphasis
added).

                               3819
function of the descriptive language appears to be to make
reading the statute easier, so that one does not have to look
up each citation to see what it is about, and to protect against
scrivener's error in getting the statute from the drafting desk
to the United States Code.

[5] Therefore, the straightforward reading of the parentheti-
cal in the aggravated felony statute, "relating to alien smug-
gling," is that it merely describes and does not limit
subsection (ii) "transporting" offenses that may be a predicate
for the aggravated felony.35 The Fifth Circuit is the only other
circuit to have considered this question, and it has read the
statute just as we do.36

Conclusion

Thus we conclude that such preliminary questioning of sus-
pects in the field prior to arrest, where the setting is for all
practical purposes public, as took place here, does not consti-
tute custodial interrogation. The evidence of alienage was suf-
ficient. And transporting aliens under 8 U.S.C.
S 1324(a)(1)(A)(ii) is an aggravated felony under 8 U.S.C.
S 1101(a)(43)(N) for purposes of U.S.S.G.S 2L1.2.

AFFIRMED.
_________________________________________________________________

PAEZ, Circuit Judge, concurring:

I agree with the majority's conclusion that Galindo-
Gallegos' admissions of alienage and being in the United
_________________________________________________________________
35 We need not deal in this case with the hypothetical case of one who
transports an alien knowing that the alien has overstayed his or her visa,
because that case is not before us.
36 See United States v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir.
1999).

                               3820
States illegally should not have been suppressed, as well as
with the majority's analysis of the evidentiary and aggravated
felony issues. I write separately because I disagree with the
majority's assertion that this stop "was public for the reason
that mattered; no alien had reason to fear abuse by an officer
and an unscrupulous officer would have been deterred from
using illegitimate means . . . ." Maj. op. at 3815 (citing
Berkemer v. McCarty, 468 U.S. 420 (1984)). I doubt that the
mere presence of other suspected illegal aliens offered
Galindo-Gallegos much solace or protection. Nonetheless, I
concur because, in my view, the agents' detention of Galindo-
Gallegos and the rest of the group near the border constituted
a permissible Terry1 stop. The detention was brief and the
limited restraint was reasonable under the circumstances.
Because the agents' questions did not exceed the scope of
allowable inquiry during such a stop, United States v.
Brignoni-Ponce, 422 U.S. 873, 881-82 (1975), Galindo-
Gallegos' answers were admissible.

Border Patrol agents may briefly stop individuals based on
reasonable suspicion that the individuals are aliens in this
country illegally, id. at 884, in order to investigate the circum-
stances that provoked that suspicion. Id. at 881. Officers are
not required to read suspects their Miranda2 rights prior to
questioning them during a Terry stop. See, e.g., United States
v. Woods, 720 F.2d 1022, 1029 (9th Cir. 1983). As long as the
detention in this case did not exceed the limited bounds of a
Terry stop and the questions were " `reasonably related in
scope to the justification for their initiation,' " Brignoni-
Ponce, 422 U.S. at 881 (quoting Terry, 392 U.S. at 29), then
Galindo-Gallegos' admissions should not be suppressed.

The most vexing question is whether Miranda warnings
were required after Galindo-Gallegos tried to run away from
the officers, was chased and caught, and was brought back,
_________________________________________________________________
1 Terry v. Ohio, 392 U.S. 1 (1968).
2 Miranda v. Arizona, 384 U.S. 436 (1966).

                               3821
made to sit in a circle, and questioned. Maj. op. at 8311-8312.
One might suspect that, after being caught and returned to the
circle, Galindo-Gallegos did not feel free to leave. There is no
per se rule, however, that physical detention converts an
investigatory stop into a custodial interrogation. See, e.g.,
United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982)
("A brief but complete restriction of liberty if not excessive
under the circumstances, is permissible during a Terry stop
and does not necessarily convert the stop into an arrest."). We
have approved of Terry stops that include handcuffing the
suspect during questioning, see id. at 1289-90; United States
v. Meza-Corrales, 183 F.3d 1116, 1123-24 (9th Cir. 1999);
ordering a suspect to lie prone on the ground, or placing the
suspect in a police vehicle, see Allen v. Los Angeles, 66 F.3d
1052, 1056 (9th Cir. 1995) (citing United States v. Buffington,
814 F.2d 1292, 1300 (9th Cir. 1987), and United States v.
Taylor, 716 F.2d 701 (9th Cir. 1983)). It is not out of the
bounds of a Terry stop, under appropriate circumstances, to
order suspects to sit on the ground in a circle. Furthermore,
we have approved of more significant restraint during a Terry
stop when suspects have fled. See Meza-Corrales , 183 F.3d
at 1123-24.

The fact that the Border Patrol agents stopped the fleeing
suspects and brought them back to the circle also did not
transform the detention into a custodial interrogation. During
an investigatory stop, officers are authorized to physically
move suspects if necessary. Of particular relevance is our
decision in Martinez v. Nygaard, 831 F.2d 822 (9th Cir.
1987). There, we held that a permissible investigative stop
included "taking [a suspected alien] by the arm, [leading] her
to an area where other suspected aliens were being held[,]"
not permitting her to leave that area to use a telephone, and
"warn[ing] her that if she moved again[the officer] would tie
her hands." Id. at 825, 827-28. The stop in this case involved
no more physical restraint than that involved in Martinez. In
sum, Galindo-Gallegos was not in custody, or under arrest,

                               3822
merely because he had been caught and returned to the group
for questioning.

Under the Supreme Court's decision in Brignoni-Ponce,
Border Patrol agents may question suspected illegal aliens
"about their citizenship and immigration status, and . . . may
ask them to explain suspicious circumstances . . . . " 422 U.S.
at 881-82. The questions the agents asked Galindo-Gallegos
in this case were what country he was from and whether he
had a legal right to be in the United States. Maj. op. at 3811.
Those questions were directly related to the agents' reason for
stopping the group in the first place, a suspicion that they
were illegal aliens. Furthermore, the agents "used no threats
of force, unnecessary delays, exaggerated displays of author-
ity or other coercive tactics" in their questioning. United
States v. Torres-Sanchez, 83 F.3d 1123, 1129 (9th Cir. 1996)
(holding that there was no arrest when suspect was moved
from his own truck to a police car). The agents' questions
were permissible and the district court's order denying
Galindo-Gallegos' motion to suppress was proper.

                               3823

	


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