ZENON JUAREZ HERNANDEZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-6499 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals' opinion (Pet. App. B1-B20) is reported at 913 F.2d 1509. JURISDICTION The judgment of the court of appeals was entered on September 10, 1990, and a petition for rehearing was denied on October 22, 1990. Pet. App. A. /1/ The petition for a writ of certiorari was filed on December 12, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Immigration Reform and Control Act of 1986 prohibits the use of information obtained from an amnesty application as evidence in a criminal proceeding. STATEMENT After a jury trial in the United States District Court for the District of Kansas, petitioner was convicted of making false statements in connection with the acquisition of a firearm, in violation of 18 U.S.C. 922(a)(6), and of receiving a firearm while an illegal alien, in violation of 18 U.S.C. 922(g)(5). The district court suspended imposition of the sentence, placed petitioner on probation for two years, and fined petitioner $250 on each count. The court of appeals affirmed. 1. On November 27, 1987, Kansas State Trooper Daniel Dick observed a vehicle, driven by petitioner, speeding on a highway near Dodge City, Kansas. The trooper pulled the car off the highway and asked to see petitioner's driver's license. He observed that petitioner and the two passengers, Antonio Valadez and Manuel Delatore, had open beer containers in the car. The trooper ran a check on petitioner's license and discovered that it had been suspended. He cited petitioner for driving with a suspended license, and he cited the two passengers for transporting open containers of alcoholic beverages in an automobile. Pet. App. B2. While writing out the citations in his patrol car, the trooper saw petitioner pass something to the passenger in the back seat, who then ducked below the window level. The trooper returned to petitioner's car and placed petitioner under arrest (as permitted by Kansas law) for driving with a suspended license. Petitioner appeared to understand the trooper, but he stated that his knowledge of English was poor. The trooper had Valadez translate petitioner's Miranda warnings into Spanish. After receiving those warnings, petitioner indicated to the trooper that he understood his rights. Pet. App. B2-B3. The trooper made arrangements for towing the car and conducted an inventory search of the vehicle. He discovered a Colt pistol hidden between the cushions of the back seat. Upon questioning, Valadez and Delatore stated that the gun belonged to petitioner. Petitioner acknowledged, in English, that he owned the gun and that he was an illegal alien. The trooper then took petitioner to a local jail and contacted Robert Bohm of the Immigration and Naturalization Service (INS). Bohm spoke with petitioner over the telephone in Spanish. In the course of their conversation, petitioner acknowledged that he was in the United States illegally. Pet. App. B3-B4. 2. Petitioner was indicted on charges of knowingly making a false statement on a firearms purchase application, in violation of 18 U.S.C. 922(a)(6), and receipt of a firearm by an illegal alien, in violation of 18 U.S.C. 922(g)(5). At trial, Trooper Dick and Agent Bohm testified that petitioner had admitted to each of them that he was an illegal alien. I Tr. 11, 49. The government then introduced into evidence an Alcohol, Tobacco and Firearms form dated April 27, 1987. II Tr. 15-21. The form recorded the sale to petitioner of the Colt pistol found in petitioner's car. II Tr. 21. One of the questions asked on the form was, "Are you an alien illegally in the United States?", to which petitioner had answered "no." II Tr. 21-23. An expert witness testified that the buyer's signature on the form matched petitioner's signature. II Tr. 53-59. See Pet. App. B4, B7. The government then introduced into evidence an INS computer printout summarizing the history of petitioner's dealings with the INS. II Tr. 32-39. That record showed that, prior to the alleged firearms offenses, petitioner had twice been deported as an illegal alien. II Tr. 40-41. The computer record also showed that on February 5, 1988, after the alleged offenses, petitioner applied for amnesty, under provisions of the Immigration Reform and Control Act of 1986 (Immigration Reform Act), Pub. L. No. 99-603, 100 Stat. 3359, to legalize his immigration status. /2/ II Tr. 42. Pet. App. B4, B7. Petitioner objected to the admission of the INS record showing that he had applied for amnesty. He relied on provisions of the Immigration Reform Act that protect the confidentiality of information furnished by an illegal alien on his amnesty application. /3/ The district court rejected petitioner's objection, concluding that the Immigration Reform Act prohibits the use of the contents of an amnesty application, but permits disclosure and use of the fact that an individual has applied for amnesty. The district court accordingly held that the government's disclosure that petitioner had applied for amnesty did not constitute the use of "information" subject to the confidentiality requirement. Pet. App. D1-D6. 3. The court of appeals affirmed. Pet. App. B1-B16. It first concluded that petitioner received proper Miranda warnings and that petitioner lawfully waived his right to remain silent. Accordingly, the court held that petitioner's incriminatory statements to Trooper Dick and to INS Agent Bohm were properly admitted into evidence. Pet. App. B4-B7. The court next rejected petitioner's claim that it was reversible error for the government to introduce evidence that he filed an application for amnesty. The court of appeals disagreed with the district court's conclusion that the government's use of the computer printout did not involve the disclosure of any "information" within the scope of the confidentiality provisions. It ruled that disclosure of the fact that an individual filed an application for amnesty was possible only by identifying the applicant by the name or other information that he included in the application. Thus, the court of appeals held that the government's computer printout necessarily involved the use of "information furnished pursuant to an application" for amnesty within the meaning of the confidentiality provisions. Pet. App. B8-B9. The court of appeals construed the confidentiality provisions, however, as permitting the use of such information as evidence in a criminal case. The court concluded that the statute is ambiguous as to whether governmental use of amnesty information is precluded in all circumstances or only in deportation proceedings. Pet. App. B9. /4/ It observed that a passage from the pertinent House Report stated: "The confidentiality of the records is meant to assure applicants that the legalization process is serious, and not a ruse to invite undocumented aliens to come forward only to be snared by the INS." H.R. Rep. No. 682(I), 99th Cong., 2d Sess. 73 (1986). The court interpreted that statement as indicating that the confidentiality provisions prohibit the use of application information only in deportation proceedings and accordingly upheld the admission of amnesty information in this case. Pet. App. B10-B11. /5/ Judge McKay dissented. Pet. App. B17-B20. He agreed with the majority that disclosure of the fact that an amnesty application was filed necessarily reveals the name of the applicant, which was included as part of the "information" furnished by the applicant. Id. at 19. He concluded, however, that the "clear, unambiguous language of the statute" requires that confidentiality be maintained against the use of the application information in an unrelated criminal proceeding. Id. at B17, B20. ARGUMENT Petitioner argues (Pet. 10-13) that the court of appeals incorrectly interpreted the confidentiality provisions of the Immigration Reform and Control Act of 1986 to allow the use of information furnished pursuant to an amnesty application as evidence in an unrelated criminal case. We agree. The issue, however, is not of substantial or continuing importance. Moreover, the erroneous admission of the amnesty information in this case was harmless error and therefore, under 28 U.S.C. 2111 and Fed. R. Crim. P. 52(a), would not justify reversal of petitioner's convictions. Review by this Court is accordingly not warranted. 1. In Baldrige v. Shapiro, 455 U.S. 345 (1982), this Court considered the scope of the confidentiality provision of the Census Act, which provides that "(n)either the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, may, except as provided in section 8 of this title -- (1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied." 13 U.S.C. 9(a)(1). The Court held that the confidentiality provision barred disclosure of census information under the Freedom of Information Act and judicial discovery rules. 455 U.S. at 362. The Immigration Reform and Control Act of 1986 states, in similar language, that "(n)either the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may -- (A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application" or to enforce the Act's fraud provisions or prepare reports to Congress. 8 U.S.C. 1255a(c)(5); see also 8 U.S.C. 1160(b)(6). In accordance with Baldrige v. Shapiro, supra, we believe that this language prohibits the use of amnesty application information except for the purposes specifically identified in the statute. /6/ 2. Although we agree with petitioner that the court of appeals' interpretation of the Act's confidentiality provisions is incorrect, we submit that review by this Court is not warranted. There is no square conflict among the courts of appeals on this issue. /7/ Furthermore, because the United States does not concur in the court of appeals' interpretation, it will not advance that interpretation in other cases, and the Department of Justice will take steps to assure that the United States' position is communicated to government attorneys. Finally, the issue is unlikely to recur. The deadline for agricultural workers to file amnesty applications workers expired on May 6, 1988. See 8 U.S.C. 1160(a)(1)(A). That was also the latest date -- subject to a brief extension -- on which aliens continuously in this country since January 1, 1982, could file amnesty applications. See 8 U.S.C. 1255a(a)(1). Although it is possible that other criminal cases might still arise in which the admission of amnesty information would be in issue, the fact that this case alone has raised the issue thus far suggests that such cases will arise very infrequently, if at all. /8/ 3. Moreover, a reviewing court is obligated to "give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U.S.C. 2111; see Fed. R. Crim. P. 52(a). The record reveals that the trial court's admission of evidence regarding petitioner's amnesty application was harmless error, because it was wholly cumulative of other evidence and could not have affected the verdict. As we have explained above, Trooper Dick and INS Agent Bohm testified that petitioner admitted that he was an illegal alien. In addition, the trial court admitted into evidence INS records showing that petitioner had twice been deported as an illegal alien prior to his offenses. Thus, petitioner's convictions were properly affirmed despite the erroneous admission of the amnesty evidence. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney FEBRUARY 1991 /1/ The court of appeals treated petitioner's suggestion for rehearing en banc as a petition for rehearing and a suggestion for rehearing en banc. See Pet. App. A1. /2/ The Immigration Reform Act allows an alien who is in the United States illegally to apply for legalization of his immigration status either as a temporary agricultural worker, 8 U.S.C. 1160, or, providing he resided continuously in the country since January 1, 1982, as a permanent resident, 8 U.S.C. 1255a. It is unclear from the record which section petitioner invoked in his amnesty application. /3/ The Act's confidentiality provision for permanent residents states as follows: Confidentiality of information. Neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may -- (A) use the information furnished pursuant to an application filed under this section for any purpose other than to make a determination on the application or for enforcement of paragraph (6) (involving penalties for false statements in connection with the application) or for preparation of reports to Congress under section 404 of the Immigration Reform and Control Act of 1986, (B) make any publication whereby the information furnished by any particular individual can be identified, or (C) permit anyone other than the sworn officers and employees of the Department or bureau or agency * * * to examine individual applications. 8 U.S.C. 1255a(c)(5). The confidentiality provisions for temporary agricultural workers are virtually identical. See 8 U.S.C. 1160(b)(6). /4/ The court observed that under the statute an illegal alien who has filed a nonfrivolous amnesty application may stay deportation pending final determination on the application. See 8 U.S.C. 1160(d), 1255a(e). The court reasoned that interpreting the confidentiality provisions "in a manner which prohibited the Attorney General from disclosing that an illegal alien had applied for amnesty would frustrate the salutary policy behind Section 1160(d) and Section 1255a(e)." Pet. App. B9-B10. /5/ The court also rejected petitioner's claim that the INS computer record should have been excluded as hearsay. It ruled that the INS record was admissible under the business record exception to the hearsay rule, Fed. R. Evid. 803(6). Pet. App. B11-B13. /6/ In this case, the United States Attorney did not argue for the construction of the statute adopted by the court of appeals and, to our knowledge, the United States has not urged that construction in any context. /7/ Petitioner describes the Tenth Circuit's decision in McNichols v. Klutznick, 644 F.2d 844 (1981), as in conflict with the court of appeals' decision in this case. McNichols, however, was a census case that was affirmed by this Court in conjunction with Baldrige. See 455 U.S. 345 (1982). Even if that case posed a conflict, it would be solely an intra-circuit conflict that does not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901 (1957). /8/ In several cases, district courts have sought to extend the statutory deadline for filing amnesty applications as part of the remedy for their finding that the government has not administered the amnesty application process in accordance with the applicable statutes and regulations. See, e.g., Haitian Refugee Center, Inc. v. Nelson, 694 F. Supp. 864 (S.D. Fla. 1988), aff'd, 872 F.2d 1555 (11th Cir. 1989), cert. granted, 110 S. Ct. 2584 (1990). Even assuming that court action might increase somewhat the total number of amnesty applications, the precise issue in this case -- the use of amnesty application information in criminal proceedings other than fraud-in-the-application proceedings -- is not likely to arise with any frequency.