United States v. Olga Ortega , 519 F. App'x 445 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10119
Plaintiff - Appellee, D.C. No. 4:10-cr-02444-FRZ-DTF-1
v.
MEMORANDUM *
OLGA CLARISSA ORTEGA,
AKA Olga Clarissa Garcia De Ruiz,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted May 14, 2013
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.**
Defendant Olga Ortega appeals her convictions of three counts of making a
false statement in a passport application, in violation of 18 U.S.C. § 1542, and one
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
count of attempted reentry after deportation, in violation of 8 U.S.C. § 1326. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ortega challenges her convictions for making a false statement in a passport
application for sufficiency of the evidence. Viewing the evidence in the light most
favorable to the Government, sufficient evidence supported those convictions, as a
rational trier of fact could have found that Ortega “willfully and knowingly,” 18
U.S.C. § 1542, lied about being a United States citizen. See United States v.
Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (a sufficiency of the
evidence claim “requires a court of appeals to determine whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
(internal quotation marks and citation omitted) (emphasis in original)). Although
the Government lacked direct evidence of Ortega’s state of mind, a rational trier of
fact could have inferred from the evidence presented that Ortega knew she was
born in Mexico. Among other evidence, the Government introduced the transcript
of Ortega’s removal proceeding, at which the IJ found her to be a citizen of
Mexico, Ortega’s two Mexican birth certificates, testimony from Ortega’s aunt that
Ortega was not born in the aunt’s California home, and a border crossing card
procured by Ortega that identified Ortega as a Mexican national.
2
The district court afforded Ortega’s Order Establishing Fact of Birth, issued
by the Los Angeles Superior Court, full faith and credit under 28 U.S.C. § 1738. It
correctly applied California law and held that the Order created a rebuttable
presumption that Ortega was born in California. See Mah Toi v. Brownell,
219 F.2d 642, 643-44 (9th Cir. 1955) (holding that a California court order
determining the fact of birth created a rebuttable presumption).
The district court did not err when it allowed the Government to rebut the
presumption by arguing that had Ortega told the California court about her
removal, the California court might not have issued the Order. The Government
was not limited to rebutting the presumption by showing that the Order was invalid
under California law.
We decline Ortega’s request to certify a question to the California Supreme
Court because it is unnecessary to our disposition of this appeal.
AFFIRMED.
3