United States v. Lara-Ibanez , 203 F. App'x 200 ( 2006 )


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  •                                                                               F IL E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    November 1, 2006
    TENTH CIRCUIT
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                          No. 05-8126
    (D.C. No. 05-CR-219)
    IGNACIO LARA-IBANEZ,                                         (Wyoming)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
    BALDOCK, Circuit Judge.
    On July 13, 2005, in a one-count indictment filed in the United States District
    Court for the District of Wyoming, Ignacio Lara-Ibanez (the defendant) was charged with
    having been found in the United States after having been previously deported from the
    United States, and “having not obtained the consent of the Attorney General of the United
    States or his successor, the Secretary for Homeland Security . . . to reapply for admission
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate
    record, this panel has determined unanimously to honor the parties’ request for a decision
    on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
    The case is therefore submitted without oral argument.
    into the United Sates,” in violation of 
    8 USC §§ 1326
    (a)(1) and (2) and (b)(2). On July
    18, 2005, the defendant pled not guilty. On September 12, 2005, the case proceeded to
    trial by jury, and on September 13, 2005, the jury found the defendant guilty as charged.
    A pre-sentence report set defendant’s adjusted offense level at 16, and his criminal history
    category at VI, resulting in a guideline range of 46 to 57 months imprisonment. The
    district court imposed a sentence of imprisonment for 46 months. The defendant then
    filed a timely notice of appeal.
    At trial, the government called three witnesses, and the defendant called none. A
    brief summary of the government’s evidence will place the one issue raised on appeal in
    focus.
    Officer Buhler of the Casper, Wyoming Police Department testified that he
    responded to a report of a “suspicious person” who allegedly had been “lurking” behind a
    local Casper service station for some 45 minutes. The officer, upon arrival at the service
    station, made contact with the defendant. According to Officer Buhler, the defendant
    “evaded” questions about his name, date of birth, and social security number by giving
    “conflicting” answers to the officer, whereupon the officer arrested the defendant for
    interfering with a police officer.
    The defendant was then taken to the local Casper police station and “booked.”
    Using the name given the booking officer by the defendant and the several dates of birth
    also given by the defendant, the booking officer contacted a local Immigration &
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    Customs Enforcement (ICE) officer who determined to his satisfaction that the defendant
    was in Casper illegally, and he placed a “verbal hold” order on the defendant.
    Shortly thereafter, a local Casper ICE Officer, Agent Marco Rodriguez, began his
    investigation of the defendant’s status in the United States. He immediately requested
    information and documents that were contained in what the parties referred to as the
    defendant’s “A-file.” One of the documents that Rodriguez received was a Warrant of
    Removal/Deportation, and, based on his comparison of the defendant’s booking
    photograph and the photograph on the Warrant of Deportation, Agent Rodriguez
    determined to his satisfaction that the defendant was the person named in the Warrant of
    Deportation. Agent Rodriguez further determined, from materials in the A-file, that the
    defendant had been previously deported two times from the United States, the most recent
    of which had occurred on March 31, 2005. Armed with this information, Agent
    Rodriguez questioned the defendant who readily admitted that he was the subject of the
    Warrant of Deportation and that he had been twice deported from the United States.
    However, the defendant declined to make a written statement to that effect. At Agent
    Rodriguez’s request, the defendant provided him with fingerprints for the purposes of
    comparing his prints with the prints on the Warrant of Deportation. A final witness for
    the government, a fingerprint analyst, compared the prints taken from the defendant with
    the prints of the Warrant of Deportation and testified that they matched. There was no
    cross-examination of the fingerprint analyst by defense counsel.
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    On appeal, the defendant raises one issue, which counsel frames as follows:
    “Was Appellant’s right to confrontation violated when hearsay
    documents from his immigration file were used against him at
    trial?”
    In thus arguing, counsel relies entirely on Crawford v. Washington, 
    541 U.S. 36
    (2004). In that case, the defendant and his wife went to the apartment of a man who had
    allegedly tried to rape the defendant’s wife. In the ensuing confrontation involving the
    defendant, his wife, and the alleged assailant, the defendant stabbed the latter. The police
    later took recorded statements from both the defendant and his wife. The defendant was
    thereafter charged with assault and attempted murder. The State of Washington at the
    time had a marital privilege statute which, generally, barred a spouse from testifying at a
    trial of the other spouse without the latter’s consent. The defendant in Crawford did not
    consent thereto. Accordingly, the state sought to introduce the defendant’s spouse’s
    recorded statement, which, according to the state, tended to contradict the defendant’s
    prior testimony given at trial that he had acted in self-defense. On that basis, the trial
    court admitted into evidence the recorded statement of defendant’s wife. A jury
    convicted the defendant, but the Washington Court of Appeals reversed. However, the
    Washington Supreme Court on appeal reinstated defendant’s conviction. On certiorari
    the Supreme Court reversed and concluded that admitting the recorded statements of the
    defendant’s wife, which the Court characterized as “testimonial hearsay,” violated
    defendant’s Sixth Amendment right “to be confronted with evidence against him.”
    -4-
    Crawford at 68.
    At the conclusion of the government’s case, the government moved to admit into
    evidence the defendant’s so-called immigration file, which included the defendant’s
    warrant of removal and deportation, a Certificate of Nonexistence of a Record, as well as
    other matters. Based on Crawford v. Washington, 
    supra,
     the defendant objected thereto.
    After only a very short argument, the district court overruled defendant’s objections and
    received into evidence defendant’s immigration file. In so doing, the district court relied
    on Fed. R. Evid. 803(8) and (10), which provide as follows:
    The following are not excluded by the hearsay rule, even though the
    declarant is available as a witness:
    (8) Public records and reports. Records, reports, statements, or data
    compilations, in any form, of public offices or agencies, setting forth
    (A) the activities of the office or agency, or (B) matters observed
    pursuant to duty imposed by law as to which matters there was a duty
    to report, excluding, however, in criminal cases matters observed by
    police officers and other law enforcement personnel, or (C) in civil
    actions and proceedings and against the Government in criminal
    cases, factual findings resulting from an investigation made pursuant
    to authority granted by law, unless the sources of information or
    other circumstances indicate lack of trustworthiness.
    * * * * * * * * *
    (10) Absence of public record or entry. To prove the absence
    of a record, report, statement, or data compilation, in any
    form, or the nonoccurrence or nonexistence of a matter of
    which a record, report, statement, or data compilation, in any
    form, was regularly made and preserved by a public office or
    agency, evidence in the form of a certification in accordance
    with rule 902, or testimony, that diligent search failed to
    disclose the record, report, statement, or data compilation, or
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    entry.
    As indicated, on appeal the defendant’s only argument is that under Crawford,
    supra, the district court erred in admitting into evidence over timely objection his
    immigration files and admitting Agent Rodriguez’ testimony regarding such. As concerns
    Crawford, 
    supra,
     we would note at the outset, that, in reversing, Justice Scalia, writing
    for the Court, noted, at page 56, “There were always exceptions to the general rule of
    exclusion of hearsay evidence.” The foregoing comment was recognized by Justice
    Rehnquist in his concurring opinion in Crawford when he said “To its credit, the Court’s
    analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business
    records and official records. See Ante at 56.”
    By way of background, in United States v. Figueroa, an unpublished opinion
    appearing at 
    2000 WL 963346
     (10th Cir. 2000) which predated Crawford, we spoke as
    follows:
    FN5. Figueroa suggests in his brief that the warrant of
    deportation or removal which stated that an INS agent had
    witnessed the deportation in 1997 was not sufficient evidence
    that he had been deported in 1997. Other courts have found
    that this warrant is admissible in trial as proof that a defendant
    was arrested and deported. See United States v. Quezada, 
    754 F.2d 1190
    , 1193-94 (5th Cir. 1985) (holding that warrant of
    deportation is admissible hearsay under Fed. R. Evid.
    803(8)(B) to prove defendant was deported); United States v.
    Hernandez-Rojas, 
    617 F.2d 533
    , 534-35 (9th Cir. 1980)
    (same). We agree with these courts that the warrant of
    deportation is admissible to prove a defendant was in fact
    deported.
    -6-
    Figueroa at **5, n.5.
    In Figueroa, we relied on United States v. Quezada, 
    754 F.2d 1190
    , 1193 (5th Cir.
    1985 ) and United States v. Hernandez-Rojas, 
    617 F.2d 533
    , 534-35 (9th Cir. 1980), both
    of which hold that a warrant of deportation is admissible under Fed. R. Evid. 803(8) to
    prove a defendant’s prior deportation. And subsequent to Crawford, both those circuits
    have since held that a warrant for deportation, being “non-testimonial,” is admissible
    against a defendant in a criminal case based on reentry after deportation. United States v.
    Bahena-Cardenas, 
    411 F. 3d 1067
    , 1075 (9th Cir. 2005) and United States v. Valdez-
    Maltos, 
    443 F. 3d 910
    , 911 (5th Cir. 2006). See also United States v. Cantellano, 
    430 F. 3d 1142
    , 1145 (11th Cir. 2005).
    The defendant’s immigration file also contained a certificate signed by one Mike
    Quinn, stating that no record exists that the defendant had ever sought, let alone obtained,
    a certificate to reenter the United States. In this regard the indictment charged, inter alia,
    that the defendant had reentered the United States after deportation even though he had
    “not obtained the consent of the Attorney General of the United States or his successor,
    the Secretary for Homeland Security, Title 6, United States Code §§ 202(3), (4) and 557
    to reapply for admission into the United States.” A Certificate of No Existence of Record
    (CNR) has also been held to come within the exception to the hearsay rule as set forth in
    Fed. R. Evid. 803(10). See, for example, United States v. Cervantes-Flores, 
    421 F.3d 825
    , 830-834 (9th Cir. 2005), where the 9th Circuit held “that the CNR was properly
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    admitted as nontestimonial evidence under Crawford.”
    Judgment affirmed.
    Submitted for the Court,
    Robert H. McWilliams
    Senior Circuit Judge
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