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U.S. v Lopez

Case No. 12-50464 (C.A. 9, Apr. 2, 2014)

Roberto Lopez Francisco (“Lopez”) appeals his conviction following a jury trial for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We agree with the district court that 8 U.S.C. § 1326 does not require the government to prove the existence of an order of deportation as an element of the crime in cases where the defendant has been deported or removed. We affirm Lopez’s conviction despite the erroneous admission of lay opinion testimony by a key government witness because the remaining evidence of physical removal, including Lopez’s Verification of Removal (Form I-296), is legally sufficient to support the jury’s verdict. We also conclude that the district court did not abuse its discretion in denying Lopez’s motion for a new trial.

I.



On February 9, 2010, Lopez, a native and citizen of Mexico, was arrested outside Lukeville, Arizona and transferred to the Border Patrol Station in Tucson for processing. Lukeville is on the United States–Mexico border. The following day, Border Patrol Agent Craig Harris interviewed and fingerprinted Lopez at the Tucson station. On February 11, 2010, according to the government, Lopez was transported by bus to the Nogales, Arizona port of entry and removed from the United States across the border to Mexico. On June 22, 2011, an ICE officer arrested Lopez outside his home in Los Angeles.

During the one-day trial, the government introduced as Exhibit 12 a Notice to Alien Ordered Removed/Departure Verification (Form I-296) from Lopez’s A-File. The form is used to record the removal of an individual from the United States during the expedited removal process. This form has two parts. The top half of the form, the “Notice to Alien Ordered Removed,” warns that if the removed alien attempts to enter, enters, or is found in the United States he can be prosecuted for a felony under 8 U.S.C. § 1326 and could face severe penalties. The officer who serves this warning enters his signature on that portion of the form. In Lopez’s case, Agent Harris served the warning. Agent Harris’s name is typed on the signature line next to his signature along with his title, Border Patrol Agent, and his office location, Tucson, Arizona.
 

 

Judge(s): Kim McLane Wardlaw
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Criminal Justice
 
Circuit Court Judge(s)
Harry Pregerson
Richard Tallman
Kim Wardlaw

 
Trial Court Judge(s)
John Kronstadt

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Ashley Aull U.S. Department of Justice

 
Defendant Lawyer(s) Defendant Law Firm(s)
Davina Chen Law Office of Davina T. Chen

 

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united states. the alien’s name, photograph, fingerprint, and having determined that a verification of removal falls l. ashleyaull (argued), office of the united states attorney, when it denied his rule 33 motion for a new trial without an kirkpatrick, federal evidence § 8.88 (3d ed. 2012) determine who signed the verificationof removal or identify removal was the only element seriously contested at trial. jackson, 443 u.s. at 319). thus, we cannot conclude that the “testimony was sufficient to make a prima facie case for beyond a reasonable doubt. as with warrants of removal, the for the central district of california original). the separate double brackets indicate that the court cannot be said to have been “observed” and is therefore officer oki’s testimony provided the jury with a framework have found the essential elements of the crime beyond a removal or the removal of aliens at the border, the proceedings.” anguiano-morfin, 713 f.3d at 1210–11 bahena-cardenas, 411 f.3d at 1075; neither of these signatures is legible, however, and none of mexico, was arrested outside lukeville, arizona and made applicable in a criminal case by federal rule of criminal procedure of aliens across the united states border. the form thus 9th cir. model crim. jury instr. 9.8 (2010) (all brackets in removal form, inability to identify the agents who signed it, and the united states v. durham, 464 f.3d 976, 981 (9th cir. 2006). v. diaz v. massachusetts, 557 u.s. 305 (2009)). requirement under rule 602 is the same as that under rule or public reputation of judicial proceedings.” puckett, 556 u.s. at 135 government witness because the remaining evidence of between the two is that a verification of removal is used to harris further testified that in february 2010, he was deportation officers to sign the warrant of deportation when they see the of removal is “simply a routine, objective, cataloguing of an did not challenge the authenticity of his signature on the agent harris was not in nogales when lopez was deported, the requirements of federal rule of criminal procedure was found in the united states.” id. at 1074. in bahena- 1996 as a special agent with ins. he testified that a chapter). in zepeda-martinez that this warrant is sufficient alone to during trial, the government called a fingerprint the district court did not err by admitting lopez’s united states v. lopez 11 expert who testified that the fingerprint on lopez’s removal,] do you believe he was actually deported from the affirmed. determine whether “any rational trier of fact could have found concluded that the warrant of deportation is nontestimonial omitted). we have not interpreted the “duty imposed bylaw” vidal-mendoza, 705 f.3d 1012, 1014 (9th cir. 2013). but or expressing a fear of persecution. see 8 u.s.c. § 1225(b)(1)(a)(i). harris about his inability to decipher the signatures on federal evidence § 6.6 (3d ed. 2012) (collecting cases). united states v. lopez 13 physical removal was bolstered by the testimony of the officer who signed (holding the same). because warrants of deportation reflect evidence is introduced sufficient to support a finding that the requirement may be met if the witness can demonstrate first- united states v. lopez 21 in the light most favorable to the prosecution.” id. at 1161 the essential elements of the crime beyond a reasonable conviction under section 1326 because returning alone is not quotation marks omitted). we have noted that the purpose of “[t]housands” of a-files in his career, which began in june nogales, immediately before being removed across the excluded, deported, or removed,” then no order is required. same “inherent reliability because of the government’s need filed april 2, 2014 necessary element that the government must prove beyond a government’s case. the illegible signatures on the verification of remedy the error in cases where it “seriously affects the fairness, integrity defendant’s warrant of removal); bahena-cardenas, 411 f.3d at 1072 established.”) (quoting fed. r. evid. 701 advisorycommittee advisory committee notes to rule 701 clarify that 701(a) is defendant-appellant. the information. fed. r. crim. p. 12(b)(3)(b) (requiring “a addition, it bears a photograph of the alien removed, his (reviewing a district court’s grant of a motion to dismiss an member’s “long experience in writing notes for the deportation, or removal is outstanding.” 8 u.s.c. appellant’s substantial rights; and we may exercise our discretion to affirm. falsely, asserting that someone who is removed across the from nogales, for a period of six months. the tucson station verified his removal, urging the jury to conclude that there the panel held that a verification of removal is cardenas is squarely in line with our holding as to proof of procedures followed at the border. indeed, even in cases holding warrants hand knowledge or observation. as described above, agent records the fact that an individual alien was removed from the is the subject of the enforcement action. the second clause prosecutor asked agent harris, “[b]ased upon your training a. first [[the defendant was [removed] contested that fact. nor did lopez contend that the and eliciting opinion testimony from agent harris. to the prosecution laid no foundation for agent harris’s he could not have testified as to his personal knowledge as exhibit 12 a notice to alien ordered removed/departure itself. during the one-day trial, the government introduced as and richard c. tallman, circuit judges. exception: whether the matter was “observed while under a within the public records exception to the hearsay rule, we determining whether an alien may be admitted to the united united states v. lopez20 interviewed. tucson is not a place from which mexican deportation, a verification of removal records the movement lopez’s substantial rights or that it “seriously affect[ed] the mario, aka roberto mendoza, 8 u.s.c. § 1326. we agree with the district court that federal rule of evidence 602 because agent harris lacked prosecuted for a felony under 8 u.s.c. § 1326 and could face two types of forms, arguing that the observations recorded on admitting records created by law enforcement personnel true, we have said that “[o]ne of the elements of a conviction two parts. the top half of the form, the “notice to alien omitted). we held, “[a]lthough the government could have relied on rule and therefore does not implicate crawford v. washington, exception. loyola-dominguez, 125 f.3d at 1318 (internal moves on to the second element of the offense. if he instead personal knowledge. he also argues it was inadmissible challenged the validity of his underlying removal order. the section 1326 prosecutions even though theydescribe a matter record material about each individual for whom dhs has created a record bahena-cardenas, 411 f.3d 1067 (9th cir. 2005), requires daylight between the function of these two documents that issued is the only way to demonstrate that the government which aliens who attempt to gain entry to the united states but are not a-file was linked to lopez in conjunction with his rule 29 motion. the 134 s. ct. 543 (2013). lopez has not met this burden answered by the officer signing either form is the same court denied the motion, ruling that an order of deportation or record or a copy of the record attested by the officer with legal custody of he stated that he has seen “hundreds” of these documents, all werecompleted. thus, lopez’s name, photograph,signature, properlyauthenticated the verification of removal bycalling 2:11-cr-00688- as an element of the crime in cases where the defendant has defendant to determine whether it was his. similarly, lopez they are “not made in anticipation of litigation,” they are must be valid, legal, and comport with due process a reasonable doubt that lopez had been physically removed. the government’s need to keep accurate records of the fingerprint. thus, a verification of removal catalogues the october 9, 2013—pasadena, california severe penalties. the officer who serves this warning enters immigration and inspection process.” privacy act of 1974; u.s. . . . to mexico.” after the alien is fingerprinted, he is walked who enters, attempts to enter, or is at any time found in the citizenship and immigration services, immigration and customs united states v. lopez8 opinion factual matter,” and they“have inherent reliability because of harris, “based upon your training and experience by looking lopez, testifying that lopez was “a pretty common name.” * opinion by judge wardlaw we review de novo whether a verification of removal falls appeal the denial of his motion to dismiss. lopez’s counsel did argue that the government failed to prove that the alien leave the united states”). district court denied this motion, finding that although lopez (internal quotation marks omitted). only then may we required by rule 602. although lopez unsuccessfullychallenged the validityof removalis nontestimonial. both documentsrecordthealien’s states, 132 s. ct. 2492, 2505 (2012). rather, the criminal act reaffirmed that warrants of deportation are admissible in united states v. lopez10 removal is not a necessary element of a section 1326 offense united states v. nevils, 598 f.3d 1158 (9th cir. 2010) (en item is what the proponent claims it is.” fed. r. evid. 901(a). we have repeatedly held that a warrant of removal is deportation was issued where the alien has been deported or “simply a routine, objective, cataloguing of an unambiguous he ask whether agent harris ever used the form, worked at a and a verification of removal, he contends that a verification verifications of removal are also routine. they are removal includes the following information about the alien’s to the border. on cross, defense counsel questioned agent interviewed and fingerprinted lopez at the tucson station. principally used by u.s. customs and border patrol agents “the familiar requirement of first-hand knowledge or that an alien is fingerprinted as he steps off the bus in completed for all aliens removed pursuant to expedited shares the same “inherent reliability because of the did not sign the removal order as required by 8 c.f.r. federalrule ofevidence901,5 removal introduced as exhibit 12 was a true and correct copy temporarily detailed to the tucson station, forty to fifty miles arizona. whatthegovernmentmust show to prove “physical removal”: both. so if the defendant was deported or removed, the court documents admitted were true and correct copies of the velasquez, 629 f.3d 894, 896 (9th cir. 2010) (en banc) nontestimonial.”4 two forms cannot obscure the plain fact that neither form a verification of removal are more subjective. while it is true other specialized knowledge within the scope of rule 702.” referred tointerchangeablyin our previous casesand infederal regulations on february 11, 2010, according to the government, lopez alien is physically removed, he did not testify about the specific cases cited by lopez—involve collateral challenges to the authenticity.” id. federal rule of evidence 803(8), a record or statement of a for the ninth circuit under § 1326 is a prior removal order.” united states v. requirements to sustain a conviction under section 1326. these same considerations lead us to conclude that a 448f.3d1155,1157(9thcir. 2006) (internal quotation marks function of the agency. 4 christopher b. mueller & laird c. united states v. lopez 5 so long as a foundation of familiarity with the substance is transferred to the border patrol station in tucson for (2010).”). between the time he was ordered removed and the time he last saw lopez before lopez’s alleged departure on the bus similarly,aproperlyauthenticatedverificationofremoval hernandez-rojas, 617 f.2d 533, 534–35 (9th cir. 1980) evidence does fall within the given rule, we review the salazar-lopez, 506 f.3d at 755 (explaining that although a warrant of the district court ruled that 8 u.s.c. § 1326 does not purpose of recording the movement of aliens. compare case. physical removal, including lopez’s verificationof removal conducted by an immigration judge, and that such deportationinthiscaseis nontestimonial and thus admissible. of removal is, nevertheless, inadmissible hearsay. under agent harris’s testimony was subsequently signed only after leaves room for subjectivity. both forms require law immigrationcourts and anyadministrative or federal district court or court he must demonstrate that it affected the outcome of the departed “while an order of removal or deportation was familiarity and experience, if any, with verifications of plain error review involves four steps: there must be an error or defect; testimony had it laid a proper foundation for harris’s we must next determine whether the error affected the phrase is worded in the passive voice because the alien whichrequires“theproponent see 8 c.f.r. § 241.2 (2005) (noting that a form i-205, concluded, however, the statutory language requires as an states during the expedited removal process.2 harris neither witnessed lopez’s deportation nor could he 44 to authenticate the a-file documents, it was not so restricted . . . fre proven, a valid order of removal or deportation may be legally insufficient to support the jury’s finding that he had the government’s witnesses could identify the officers who is legally sufficient to support a finding of physical removal his removal order in a pre-trial motion to dismiss the of appeal; correspondence, and memoranda.” id. at 34236. records is the official record system that contains information regarding united states v. lopez12 personal knowledge as to lopez’s removal, on redirect, the the basis that agent harris testified falsely when he stated banc). first, we are required to “construe the evidence at trial made by officials at the scene of the crime or apprehension, admissible under rule 803(8). explained in estrada-eliverio, “fre 901 does not require the panel held that the district court did not abuse its seen.” 583 f.3d at 671. in lopez’s case, officer oki testified removal or deportation is an element of the crime that must reasonable doubt.” nevils, 598 f.3d at 1164 (quoting government must also prove the existence of a deportation or would not further this purpose because the observation made agent harris admitted that he could not even remember argued and submitted situations.” united states v. hernandez-rojas, 617 f.2d 533, testimony was “predicated upon concrete facts within [his] lopez, aka roberto lopez, aka it found insufficient evidence of false testimony. the signed signature, his right index fingerprint, and the signature of the the united states after deportation, in violation of he had the requisite personal knowledge, and therefore his of deportation is admissible to prove physical removal in a united states of america, orozco-acosta, 607 f.3d at 1162–63 (describing a warrant of most he could of the government’s inability to identify, much requirements of the confrontation clause. the panel also information, the government did not introduce the order of by a law enforcement officer in verifying the removal of an in which to view the form. he testified that he has reviewed title as well. that it is the removed alien’s fingerprint on the by law-enforcement personnel.” fed. r. evid. 803(8)(a)(ii). federal rules of evidence, but once we determine that the warrant of removal, is “based upon the final administrative the merits of lopez’s argument and did not clearly err when removal or deportation orders, and does nothing to disturb the as a warrant of removal or a warrant of deportation. counsel piece of paper . . . . this is exhibit 12. you will have this [deported] from the united states]] [[the it suffices if the nature of the responsibilities assigned to the exhibit back with you in the juryroom.” lopez also made the enforcement officer is not qualified as an expert by the court, 6 removal/deportationis nontestimonial becauseit is“not made no. 12-50464 either person was. to the same—that he was the temporary custodian of lopez’s based on the witness’s perception; (b) helpful to clearly we review de novo the district court’s interpretation of the included customarily in a-files, and that the verification of existence of an order of deportation as an element of the warrants of removal/deportation are nontestimonial because government’s case, lopez moved for a directed verdict under united states[,]” except where otherwise specified in the the verification of removal in nogales as the alien “step[s] off to enter, enters, or is found in the united states he can be conviction following a jury trial for being an alien found in concerns animating the law enforcement exception to the it is well-established that the government is required to testify, but another agent “testified that the normal practice is for identify the people who signed the form. although the departure: departure date, port of departure, manner of agent harris served the warning. agent harris’s name is processing. lukevilleis on the united states–mexico border. testimony at trial; the unsigned declaration that did contradict and fingerprint appear on his verification of removal. the united states v. lopez 7 expedited removal proceedings provide a streamlined process by form is evidenced by the signature of the officer who took the been denied admission, excluded, deported, or removed or 27, “an official record is admissible if it is an official publication of the offense. lopez points us to our description in that case of even though the district court clearly erred by admitting a file.” 583 f.3d at 673. officer oki’s testimony indicates that 535 (9th cir. 1980). excluding a verification of removal united states v. lopez24 must prove, inter alia, that the defendant was previously discretion in denying without an evidentiary hearing the verification of removal as the verifying officer or as the deportation officer ron oki, the temporary custodian of mexico. on june 22, 2011, an ice officer arrested lopez admissible can be removed by an immigration officer without further presupposes that the alien departed on his own initiative, in border protection supervisor george schmid. according to is a processing centerwhereindividuals are brought after they responsibilities assigned to the department of homeland proves that the alien was actually physically removed, the defendant’s motion for a new trial based on an allegation of which case, the fact of his return alone cannot support a davina t. chen (argued), law office of davina t. chen, has, in fact, ordered the alien removed and that his return from two officers: a border patrol agent who verified the witness has personal knowledge of the matter.” personal either the verifying officer or official who took the defendant departed the united states while an question before the jury in the absence of personal 724 f.3d 1125, 1129 (9th cir. 2013) (“in a prosecution for salazar-lopez, 506 f.3d 748, 755 (9th cir. 2007) (“we noted agent harris’s lay opinion testimony is also inadmissible of removal sufficient alone to support a finding of physical removal, the inzunza, 638 f.3d 1006, 1020 (9th cir. 2011) (internal from tucson to nogales. nor could agent harris identify in addition to authenticating the verification of removal, reasonable doubt.” united states v. zepeda-martinez, cir. 1991). (explaining that removal proceedings shall in general be outstanding.” see united states v. gonzalez-villalobos, order of deportation, removal, or exclusion becomes a on february 9, 2010, lopez, a native and citizen of united states v. lopez 23 and the jury could simply compare the photograph to the deportation, or removal [wa]s outstanding.’ 8 u.s.c. agent harris testified that the alien’s fingerprint is placed on departure, and signature and title of the verifying officer. in require the government to prove that an order of removal or 125 f.3d 1241, 1246 (9th cir. 1997) (holding that testimony warrant of removal/deportation. it is equally important for holding in bahena-cardenas, once again reasoning that verification of removal “bore [defendant’s] name, border at nogales is not fingerprinted as he gets off the bus; vidal-mendoza—as well as united states v. barajas- report, but not including, in a criminal case, a matter observed bahena-cardenas physically left the country sometime documents from an a-file may be authenticated under agent harris’s testimony does not satisfy the personal recorded or filed in a public office as authorized by law; or in bahena-cardenas, we concluded that a warrant of require us to reverse lopez’s conviction and vacate his agent harris was not at the nogales border when lopez was was it established that agent harris had any training or accordingly, the government provided sufficient evidence of court to admit it here. it was not. at trial, the prosecution 1201, 1202 (9th cir. 1994). lopez moved for a new trial on under federal rule of evidence 701 because it could not have “witnessed” the removal or that he “verified the removal.” if proceeding would have been different.” united states v. if it sets out “a matter observed while under a legal duty to fact in issue; and (c) not based on scientific, technical, or lopez’sremoval. similarly,duringcross-examination,agent deportation, or removal onlywhen an alien has “departed”the government to prove the existence of an order of deportation indictment under section 1326 based on the invalidation of government’sneed to keep accuraterecordsofthemovement 5 § 235.3(b)(2)(i), he suffered no prejudice. lopez did not photograph on the verification of removal was not of him; united states v. lopez6 lopez’s verification of removal or otherwise identify the iii. harris’s opinion testimony that lopez was in fact deported federal rule of criminal procedure 29 in part because the so long as evidence of physical removal has been introduced. d.c. no. of the crime under 8 u.s.c. § 1326. see bahena-cardenas, agent harris was the government’s key witness to outside his home in los angeles. outstanding]]; under rule 602, a “witness may testify to a matter only if that an individual has been deported falls under the rubric of and fingerprint on the verification of removal did not belong of evidence 701 because permitting such testimony subverts lopez argues that the verification of removal alone was the deportation order underlying the indictment). implicitly which lopez relies do not directly contradict agent harris’s the defendant’s departure from the united states. we been deported or removed. of the form. what was established is that harris had been a a-file, that a verification of removal is a document that is legal duty to report.” fed. r. evid. 803(8). he argues that by law enforcement agents that defendant’s conduct was signed the form. which established that the a-file belonged to lopez. of laytestimony on the meaning of coded communications by wardlaw, circuit judge: (internal quotation marks and alteration omitted); bahena- 2009). 982 (internal quotation marks omitted). counsel, accompanied by an investigator for the public to keep accurate records of the movement of aliens” as a government is required to prove beyond a reasonable doubt. element of the offense when the defendant has been deported the district court did not abuse its discretion in denying united states after deportation, in violation of 8 u.s.c. opposed to a warrant of removal. however, reasoning by used to record the removal of an individual from the united stipulations and other documents introduced during trial from the a-file, objective one: whether or not the alien was removed. hernandez, aka roberto experience removing persons at the border or with the form united states v. lopez 15 in anticipation of litigation, and because it is simplya routine, because the jury could have concluded that lopez was under federal rule of evidence 701. a lay person may offer is always a predicate to the crime because the deportation 901 provided an alternative basis for establishing the documents’ challenge to the admissibility of a verification of removal as criminal law ordered the alien excluded, deported, or removed. hence, the not whether a deportation or removal order must be lopez’s substantial rights, “which in the ordinary case means nontestimonial, and that its admission thus comports with the the form is physical removal across the border and are made for the and experience by looking at [lopez’s verification of that “the document was a record of matters observed pursuant “departed,” the government does not meet its burden with occurred,” none of which occurred in this case). cardenas, 411 f.3d at 1075 (“we hold that the warrant of erroneous admission of agent harris’s lay opinion affected united states?” agent harris responded, “yes. i believe he lopez misplaces his reliance on slight differences in the the form of a motion to dismiss the indictment, or, as here, has departed the united states while an order of exclusion, that the prosecutor thought it was necessary to elicit agent harris’s element, the government must prove: [to] produce evidence sufficient to support a finding that the verification of removal belonged to lopez, and lopez never of removal or testimony from an agent with the requisite experience and crime in cases where the defendant has been deported or departed the united states while an order of exclusion, (internal quotation marks omitted). quotation marks omitted). the contradictory language had been excised. and, even if removed—just as a warrant of removal/deportation does. agent who took the fingerprint. indeed, he had “no idea” who public agency are such that the record is appropriate to the from [his] own senses, as distinguished from [his] opinions or departure date is listed as february 11, 2010, the manner of statute. see united states v. havelock, 664 f.3d 1284, 1289 in estrada-eliverio, we held that the district court did not organization”); see also united states v. durham, 464 f.3d united states. if the alien “has been denied admission, been “rationally based on agent harris’s perception,” nor title, border patrol agent, and his office location, tucson, departure is described as “afoot,” and the port of departure is district court properly rejected this argument based on the parties’ pretrial specifically, under rule 901(b)(7), public records may be appeal from the united states district court “the government must prove beyond a reasonable doubt that abuse its discretion in admitting several a-file documents, lopez’s assertion that the general prohibition against that subjective observations of law enforcement officers are false testimony. removal is sufficient evidence of removal standing alone, the evidence of examine whether it was an abuse of discretion for the district because lopez failed to object to agent harris’s opinion of which had the “exact format” as the one introduced in this been physically removed. we clarified our two-step scenario exists under which agent harris’s lay opinion again, reasoning by analogy to our precedent permitting united states v. lopez14 because a warrant of deportation includes a signature line for documents in the a-file, which [the agent] had personally removal and officer oki’s testimony which authenticated it. understanding the witness’s testimony or to determining a ordered removed,” warns that if the removed alien attempts respect to element one unless it also proves that the defendant under expedited removal procedures as it is to record which agents who signed it. on redirect, the prosecutor asked agent c. border patrol agent for four and a half years and at the time of procedures, while the warrant of removal records the removal 701(a), see united states v. simas, 937 f.2d 459, 464–65 (9th official taking that fingerprint. here, all portions of the form typed on the signature line next to his signature along with his the bottom half of the form, the “verification of remain present in the united states.” arizona v. united personal knowledge that a document was part of an official (form i-296), is legally sufficient to support the jury’s verification of removal. a verificationof removal comports offered were copies of documents from [defendant’s] a-file, district court proceedings.” puckett, 556 u.s. at 135 (internal instead, he is fingerprinted at the processing station. supports this interpretation. the model instruction, properly this form has removal order. conclude that like a warrant of removal, a verification of based on the evidence admitted at trial, no possible the other is deemed testimonial. hernandez, aka ice, aka robert a verdict where mere speculation, rather than reasonable prosecution could have elicited agent harris’s lay opinion trial was assigned to the naco border patrol station, but had introduced at trial. these cases stand for the uncontroversial were properly admitted; and, if not, whether those errors observed by border patrol agents. see united states v. verifying the removal constitutes an “observation” sufficient because it is a document that is used at the borders. finally, verification of removal is nontestimonial in nature as well. determine the admissibility of the verification of removal, public records exception,” they are not precluded by that whether it was sufficient evidence to convince a jury beyond the cases lopez cites for the proposition that an order of united states v. lopez16 alien is not made at the scene of a crime or apprehension nor its discretion in denying lopez’s motion for a new trial. los angeles, california, for plaintiff-appellee. officer oki testified that verifications of removal are completed when an responded, “yes. i believe he was.” it is undisputed that “sufficient alone to support a finding of removal beyond a united states v. lopez26 element of the offense an outstanding order of exclusion, 16(a)(1)(e));united states v. peoples, 250 f.3d 630, 641 (8th actually deported from the united states?” agent harris aliens have been removed in other circumstances. both plaintiff-appellee, completed in anticipation of litigation. second, a verification morfin, 713 f.3d 1208, 1210 (9th cir. 2013), cert. denied, jak-1 doubt.” id. (quoting jackson v. virginia, 443 u.s. 307, 319 movement of aliens.” orozco-acosta, 607 f.3d at 1163 evidentiary hearing. see united states v. young, 17 f.3d states or, if the alien has been so admitted, removed from the conclusions drawn from such facts.” durham, 464 f.3d at observation,” fed. r. evid. 701 advisory committee notes excluded as inadmissible hearsay, the slight differencesin the knowledge means knowledge produced by the direct or removed; whether the verification of removal and agent 4 citizens are actually removed or deported. improper lay opinion testimony illustrates the weakness in the 7 “that such documents are kept in a-files, that the documents he certainly had not witnessed those signatures. indeed, dominguez, 125 f.3d 1315, 1317–18 (9th cir. 1997), we knowledge, in violation of fed. r. evid. 602 and 701. lopez also argues that the differences between the two witnesses to testify that a substance appeared to be a narcotic officer has custody. in addition, the rule allows a party to prove that a of civil procedure 44 and federal rule of evidence 901. under rule 44, fingerprint. nor was officer oki in nogales when lopez was failure to solicit testimony from those agents could, in another case, lead analogy to bahena-cardenas and orozco-acosta, we enforcement officer is a participant in the conversation, has actually been physically removed. the prosecutor never united states v. lopez 3 verification of removal, doubts apparently lingered as to the record and accompanied by a certificate, made under seal, that the personal knowledge of a document’s creation, but rather only the ninth circuit’s model criminal jury instruction 9.8 verdict. we also conclude that the district court did not abuse removal of the alien across the border. the verification of verification of removal, was sufficient to support the verdict the officer who “witnessed” the removal, while a verification without permission violates the statute. agent harris testified falsely about the location at which the form. under the immigration and nationality act such as: naturalization fairness, integrity or public reputation of judicial although lopez recognizesthatthe confrontation clause approach to evaluating sufficiency of the evidence claims in forms are relevant to the first prong of the public records certificates); applications and petitions for benefits under the immigration where items of this kind are kept.” fed. r. evid. 901(b)(7). united states v. lopez 25 we therefore conclude that a “rational trier of fact could and removed from the united states across the border to been temporarily detailed to three points, west of tucson. objective cataloging of an unambiguous factual matter.” opinion that the verification of removal meant lopez had interpretation of a statute, and we begin with the text of the 411 f.3d at 1074. we must decide whether the government miles away at the time) and did not know who signed the prove physical removal from the united states as an element a warrant of deportation signed by the agent who witnessed lopez, officer schmid confirmed that agent harris testified united states v. lopez4 record the removal of aliens pursuant to expedited removal actually physically removed.7 the law enforcement exception is to “exclude observations cir. 2001) (holding inadmissible lay opinion testimony by an ii. declarations of officer schmid and investigator garcia upon in presenting lay opinions, the personal knowledge local rule 7-8. however, the district court also considered his signature on that portion of the form. in lopez’s case, the panel held that the evidence, including the lopez asserts that our decision in united states v. removal and the official who took lopez’s fingerprint. should give the jury either one of the instructions, but not to him.6 public records exception to the rule against hearsay. § 1326(a)(1). lopez argues that the last clause, “while an before: harry pregerson, kim mclane wardlaw, of aliens,” id., that we found important to our conclusion that found lopez’s motion for an evidentiary hearing to cross- notes (2000)). but see united states v. figueroa-lopez, warrants of deportation are not inadmissible hearsay. lopez argues that the district court abused its discretion removed. we affirm lopez’s conviction despite the the information due to unlawful deportation, which (collecting cases). recording and maintaining verifications opinion removed. we agree. we review de novo a district court’s united states v. lopez 9 probability that without the evidence the result of the that [the agent] was the custodian of that a-file, and that the be proven to the jury under all circumstances are inapposite. requires proof of an order of removal or deportation as an prosecution failed to do so. see united states v. martinez, harris could testify only to general procedures and admitted presented sufficient evidence of lopez’s physical removal by analysis applies equally to a warrant of removal/deportation the government to record which aliens have been removed considers that warrants of deportation, which are admissible, hearing or review. this process does not apply to those seeking asylum (1972), and we have held that the personal knowledge “ministerial,objectiveobservation[s] anddonot implicatethe less call, the border agents who took his fingerprint and iv. held that the verification of removal is admissible under the oki’s testimonyas the temporarycustodian of lopez’s a-file a general rule, it is not a crime for a removable alien to of removal does not, any removal recorded on the latter form cir. 2010) (reaffirming bahena-cardenas after melendez- for publication 976, 982 (9th cir. 2006) (“[c]ourts have permitted lay proposition that the validity of a removal or deportation order (9th cir. 2012) (en banc). the statute provides that an alien elicited the supposed “training and experience” he asked been prepared by court staff for the convenience of the reader. during trial did lopez argue that the photograph, signature, presumed in the absence of a collateral pre-trial challenge in lopez’s motion for a new trial. the district court correctly deportation was outstanding as an element of every§ 1326(b) fbi agent about recorded conversations because “when a law would suggest one should be deemed nontestimonial while illegal reentry under 8 u.s.c. § 1326(a), the government against hearsay. b) a purported public record or statement is from the office b. removal (form i-860) at trial. at the close of the requirement to mean that a statute or regulation expressly and fingerprint.” salazar-lopez, 506 f.3d at 755. at no time fingerprint is taken, that point is so tangential that lopez border patrol agent’s lay opinion testimony on the ultimate removed; nor was harris qualified as an expert under federal under rule 901(b)(7). there, a border patrol agent testified public office is admissible as an exception to the hearsay rule 541 u.s. 36 (2004). 411 f.3d at 1074–75. because a warrant removed or in possession of any other personal knowledge of own observation and recollection—that is facts perceived consistent with that of a drug trafficker violated federal rule on his own. adducing sufficient proof that the order was lopez’s a-file, as a witness. in united states v. estrada- verification (form i-296) from lopez’s a-file.1 provide an option for an officer to indicate that he either removal,” is the portion designed to record the physical reasonable doubt if the alien returns after he “has departed” “the alien file (a-file), index, and national file tracking system of cannot meet his burden of showing “there is a reasonable her testimony is admissible as lay opinion only when the law applies to verifications of removal, rendering them also the government to prove that an order of removal or we have previously held that “a warrant of removal is this summary constitutes no part of the opinion of the court. it has (internal quotation marks and alteration omitted). was.” removal order in the alien’s case”); 8 u.s.c. § 1229a immigration identification number, photograph, signature, affirming a conviction for being an alien found in the alvarado, 655 f.3d 1077, 1079 (9th cir. 2011), and other inference, supports the government’s case.” id. at 1167. united states and attest to that verification. the question at [lopez’s verification of removal,] do you believe he was either of the signatures on the verification of removal, and united states must be proven. authenticity.” id. are arrested to be fingerprinted, photographed, and is returning to the united states after the government has united states v. orozco-acosta, 607 f.3d 1156, 1163 (9th proceedings “shall be the sole and exclusive procedure for (1979)). evidence will therefore be “insufficient to support lopez argues that this testimony was inadmissible under verifications of removal. in united states v. loyola- unambiguous factual matter—whether an alien has been doubts that may have been generated by the agents’ lack of removal procedures. third, a verification of removal has the united states v. lopez 19 validity of an order of deportation under 8 u.s.c. § 1326(d), legal requirement that actual physical removal from the quotation marksomitted); seealso unitedstates v.anguiano- with the requirements of the confrontation clause and is (quoting puckett, 556 u.s. at 135). united states v. lopez22 enforcement agents to verify the removal of aliens from the a “verifying officer” and requires that officer to indicate his lopez raises several issues: whether 8 u.s.c. § 1326 apparently realizing the possible gap in proof and the 2 inadmissible. lopez’s argument falters, however, when one indeed, if actual physical removal or deportation is enforcement,customsand border protection—001 alienfile,index,and authenticated based on evidence that “a) a document was government failed to introduce a removal order. the district submitting the verification of removal along with officer personal knowledge of the facts being related in the transactions involving an individual as he/she passes through the u.s. given to the jury here, identifies five elements. as to the first puckett v. united states, 556 u.s. 129, 135 (2009).3 including the defendant’s warrant of removal or deportation, to satisfy the requirements of rule 803(8), the same principle agent harris to rely upon for his opinion testimony. nor did united states court of appeals roberto lopez-francisco, aka § 1326, the panel held that § 1326 does not require the on direct, officer oki testified that he was unable to the error must be clear or obvious; the error must have affected the (june 13, 2011). “the hardcopy paper a-file, which contains the official rule 701(a) contains a personal knowledge requirement. the port of entry, removed anyone, or received training on the use the district court clearly erred by admitting agent examine agent harris and officer schmid untimely under and he did not witness the deportation. in fact, agent harris roberto lopez francisco (“lopez”) appeals his eliverio, 583 f.3d 669 (9th cir. 2009), we squarely held that a former member of the mexican mafia after establishing the its burden of proving actual physical removal by introducing codified in federal rule of evidence 803(8)(a)(ii) applies to district court’s decision to admit it for abuse of discretion. aka roberto mendoza-hernandez, support a finding of removal beyond a reasonable doubt.”) national file tracking system of records, 76 fed. reg. 34233, 34234 estrada-eliverio, 583 f.3d at 672 (internal quotation marks and citations physically removed from the united states, and it is i. 1 we have not yet addressed a confrontation clause deportation case, we upheld the conviction. bahena- to a duty imposed by law.” united states v. pintado-isiordia, documents are placed in the alien’s a-file. there is no although it was not an abuse of discretion to admit the imposes duties to observe, report, and keep records. rather, conversation, or observed the conversations as they sentence. admission of warrants of removal/deportation, we reject actually physically removed based on the verification of 470 f.3d 909, 913 (9th cir. 2006); see united states v. into the public records exception to the hearsay rule. united this does not necessarily mean that where the government testimony in the form of an opinion if it is “(a) rationally (noting that the agent who signed the warrant of deportation did not government has elicited testimony from the agent who signed the warrant be made before trial); see, e.g., united states v. lopez- in closing lopez argued, “this entire case is built on a document is an official record by any other method authorized by law.” was transported by bus to the nogales, arizona port of entry admissible under the public records exception to the rule cardenas, the issue was whether the government could meet the verification of removal also meets the requirement order of [removal] [deportation] was ‘denied admission, excluded, deported, or removed or has other reports; records of proceedings before or filings made with the u.s. united states v. lopez2 made in an adversarial setting. rather, like a warrant of recognizingthis rule, lopez filed a pre-trialmotion to dismiss of a document from lopez’s a-file. moreover, as we 411 f.3d at 1075. in orozco-acosta, we reaffirmed our physical removal.”). in estrada-eliverio we considered the interplay between federal rule training about the custom and practice of completing these forms. see united states v. lopez18 unambiguous factual matter.” id. a verification of removal erroneous admission of lay opinion testimony by a key the jury to conclude that the government had not met its burden. although border. the day after the jury convicted lopez, defense roberto lopez, aka robert because observations made in an adversarial setting are less defender’s office, alonzo garcia, interviewed customs and form i-205 is entitled “warrant of removal/deportation.” it is form is appropriate to the function of the agency. removal), with form i-296. the only functional difference and nationality laws; reports of arrests and investigations; statements; john a. kronstadt, district judge, presiding order of exclusion, deportation, or removal is outstanding,” states v. marguet-pillado, 560 f.3d 1078, 1081 (9th cir. § 1326(a)(1); see also 9th cir. model crim. jury instr. 9.8 first, there is no evidence that a verification of removal is certificates; various documents and attachments (e.g., birth and marriage glendale, california, for defendant-appellant. signature all appear on the form, as do the departure date, the the criminal act punished by section 1326(a)(1). indeed, “as harris’s lay opinion on the ultimate question before the jury. accordingly, we find no reversible error and therefore united states v. lopez 27 the following day, border patrol agent craig harris of aliens following a hearing before an immigration judge. summary* port of departure, and the manner of departure. it is signed by united states shall be guilty of a crime if he previously “has identified as nogales, arizona. the form bears signatures was not proof beyond a reasonable doubt that lopez was knowledge requirement of federal rule of evidence 602. the bus [from tuscon] and right before [he is] removed back 8 u.s.c. § 1326 does not require the government to prove the testimony at trial, we review its admission for plain error. lopez’s physical removal, an element of the offense the reliable than observations made by public officials in other verification of removal is completed when a person is he did not witness lopez’s removal (he was forty to fifty motion alleging a defect in the indictment or information” to united states v. lopez 17 rule of evidence 702. security; therefore, completing the verification of removal involvement of the senses. see 3 mueller & kirkpatrick, 657 f.3d 811, 818–19 (9th cir. 2011) (upholding admission 3 applies to the entire subsection. as the district court v.


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