Napoleon Bustamante v. United State

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Raymond W. Gruender (UNPUBLISHED) [4136118] [13-2612]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2612
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Napoleon Arturo Bustamante
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: March 14, 2014
Filed: March 21, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.

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Arthur Lee Bustamante1 appeals from the district court’s2 denial of his petition
for a writ of error coram nobis under 28 U.S.C. § 1651(a). We affirm.
Bustamante lived in the United States for many years. He possessed a United
States passport and a delayed registration of birth from California stating that he was
born in Stockton, California, on February 1, 1945. In 1972, Bustamante enlisted in
the United States Air Force. The Air Force became suspicious of Bustamante’s claim
of citizenship and began an investigation. Based on the investigation, the Air Force
determined that the evidence of Bustamante’s citizenship was inconclusive.
Bustamante was thereafter placed in deportation proceedings. An immigration judge
found that the government had failed to prove that Bustamante was not a citizen and
terminated the proceedings.
In 2005, Bustamante was arrested for uttering a forged and counterfeit check.
A post-arrest investigation revealed that he had been born in the Philippines and was
not a United States citizen. Bustamante was consequently charged in the Eastern
District of Missouri with uttering a counterfeit check, falsely representing himself to
be a United States citizen, and making a false statement to a federal agency regarding
being born in the United States. At trial, the government substantiated the charges
against Bustamante with several documents, including two that purported to be
transcriptions of his birth certificate from the Philippines. A jury found Bustamante
guilty of the charged crimes, and the district court sentenced Bustamante to 21
months’ imprisonment. We affirmed Bustamante’s convictions and sentence on
direct appeal. United States v. Bustamante, 248 F. App’x 763 (8th Cir. 2007) (per

1

Petitioner was charged in his underlying criminal case as Napoleon Arturo
Bustamante and has alternatively used the names King Arthur XIII, Arturo L.
Bustamante, and Ricardo Arthur Lee Bustamante.
2

The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
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curiam). The district court later denied Bustamante’s motion to vacate, set aside, or
correct his sentence pursuant 28 U.S.C. § 2255. Bustamante v. United States, No.
1:10CV13 CDP, 2011 WL 2601365 (E.D. Mo. June 30, 2011).
After Bustamante’s prison term ended, he was placed in removal proceedings
and was deported to the Philippines in April 2008. A few months later, Bustamante
obtained a United States passport from the United States Embassy in Manila and
returned to the United States. He then applied for supplemental security income
benefits, using his passport and delayed registration of birth to support his claim of
citizenship. As a result, he was arrested and charged in the Central District of
California with illegal reentry, making a false statement in a passport application, and
making a false statement in an application for supplemental security income benefits.
At trial, the government introduced evidence of his previous convictions and one of
the two birth certificates to prove Bustamante knew that he was not a United States
citizen. A jury found him guilty of all three charges.
Bustamante appealed, and the Ninth Circuit Court of Appeals vacated his
convictions. United States v. Bustamante, 687 F.3d 1190 (9th Cir. 2012). The Ninth
Circuit held that the introduction of the birth certificate violated Bustamante’s rights
under the Confrontation Clause of the Sixth Amendment and that this error was not
harmless beyond a reasonable doubt. Id. at 1191. The Ninth Circuit explained that
the document was neither a photocopy nor a duplicate of the birth certificate; instead,
it was “an affidavit testifying to the contents of the birth records” and was
“functionally identical to [the] live, in court testimony that an employee of the Civil
Registrar’s office might have provided.” Id. at 1192, 1194 (alteration in original)
(citation and internal quotation marks omitted). Further, the document was “created
for the purpose of the Air Force investigation into Bustamante’s citizenship and was
‘made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.’” Id. at 1194
(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)). The Ninth
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Circuit concluded that the document was “very important to the prosecution’s case”
and that its admission was not harmless beyond a reasonable doubt. Id. at 1195.
Although the Ninth Circuit vacated his convictions, Bustamante was detained
and placed in deportation proceedings. Because Bustamante was previously
convicted in the Eastern District of Missouri of falsely representing himself to be a
United States citizen and making a false statement to a federal agency regarding being
born in the United States, he was estopped from contesting in his deportation
proceedings that he was illegally in the United States. Bustamante will most likely
be deported unless the two convictions are set aside. On September 11, 2012,
Bustamante petitioned for a writ of error coram nobis pursuant to 28 U.S.C.
§ 1651(a), seeking to have the two convictions vacated. The district court denied
Bustamante’s motion, finding that the introduction of the two birth certificates
violated Bustamante’s rights under the Confrontation Clause but that the error was
harmless in light of the other evidence introduced at the trial. Bustamante appeals.
The writ of error coram nobis is an extraordinary remedy reserved for
correcting errors of the most fundamental character. United States v. Morgan, 346
U.S. 502, 512 (1954). “In coram nobis cases, we review the district court’s legal
conclusions de novo.” United States v. Camacho-Bordes, 94 F.3d 1168, 1173 (8th
Cir. 1996). Bustamante argues that the constitutional error—that is, the introduction
of the two birth certificates in violation of his rights under the Confrontation
Clause—was not harmless. See United States v. Dale, 614 F.3d 942, 955 (8th Cir.
2010) (a violation of the Confrontation Clause is subject to harmless error analysis).
As a threshold matter, the government contends that the erroneous introduction of the
two birth certificates does not justify writ of error coram nobis relief because the error
was not of the most fundamental character and because it could have been raised on
direct appeal or in a 28 U.S.C. § 2255 motion. See Camacho-Bordes, 94 F.3d at 1173
(“[C]ourts should grant the writ ‘only under circumstances compelling such action to
achieve justice’ and to correct errors ‘of the most fundamental character.’” (quoting
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Morgan, 346 U.S. at 511-12)); Azzone v. United States, 341 F.2d 417, 419 (8th Cir.
1965) (per curiam) (“Coram nobis may not be used as substitute for an appeal.”).
Assuming, without deciding, that Bustamante has alleged a cognizable error
for a petition for a writ of error coram nobis, we conclude that the admission of the
two birth certificates was harmless and that the district court thus correctly denied
Bustamante’s petition. Beyond the birth certificates, the government presented
significant evidence to prove that Bustamante was born in the Philippines and was not
a United States citizen. See United States v. Holmes, 620 F.3d 836, 844 (8th Cir.
2010) (“Evidence erroneously admitted in violation of the Confrontation Clause is
harmless beyond a reasonable doubt as long as the remaining evidence is
overwhelming.”). Documents that the government presented as evidence, such as
Bustamante’s daughters’ birth certificates and Bustamante’s visa application, listed
Bustamante’s birthplace as the Philippines. Bustamante’s marriage contract also
listed Bustamante as of Filipino nationality. Moreover, the government presented the
testimony of Bustamante’s nephew that corroborated the information contained in
these documents. Although certain documents listed Bustamante’s birth place as the
United States, such as an application to the New York Life Insurance Company and
two applications for social security, these documents contained inconsistent
information that undermine their credibility. For example, the applications for social
security listed different years of birth for Bustamante. Furthermore, Bustamante’s
reliance on the California delayed registration of birth is unavailing. The registration
of birth was issued based primarily on a Certificate of Baptism from the Holman
United Methodist Church, dated January 10, 1946. The government presented
testimony that the church had been operating only since 1947 and that it did not own
the building where the baptism allegedly occurred until 1957. Additionally, the
government produced evidence from the church’s records that Bustamante was
baptized in 1971, not 1946 as listed on the baptismal certificate. The district court
thus correctly denied Bustamante’s petition because the overwhelming evidence in

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the record indicates that Bustamante was born in the Philippines and that the alleged
contradictory evidence is not credible.
The judgment is affirmed.
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