United States v. Roberto Lopez , 747 F.3d 1141 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50464
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00688-
JAK-1
ROBERTO LOPEZ, AKA Robert
Hernandez, AKA Roberto
Hernandez, AKA Ice, AKA Robert OPINION
Lopez, AKA Roberto Lopez, AKA
Roberto Lopez-Francisco, AKA
Mario, AKA Roberto Mendoza,
AKA Roberto Mendoza-Hernandez,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted
October 9, 2013—Pasadena, California
Filed April 2, 2014
Before: Harry Pregerson, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Wardlaw
2 UNITED STATES V. LOPEZ
SUMMARY*
Criminal Law
Affirming a conviction for being an alien found in the
United States after deportation, in violation of 8 U.S.C.
§ 1326, the panel held that § 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.
The panel held that a Verification of Removal is
nontestimonial, and that its admission thus comports with the
requirements of the Confrontation Clause. The panel also
held that the Verification of Removal is admissible under the
public records exception to the rule against hearsay.
The panel held that the evidence, including the
Verification of Removal, was sufficient to support the verdict
even though the district court clearly erred by admitting a
Border Patrol agent’s lay opinion testimony on the ultimate
question before the jury in the absence of personal
knowledge, in violation of Fed. R. Evid. 602 and 701.
The panel held that the district court did not abuse its
discretion in denying without an evidentiary hearing the
defendant’s motion for a new trial based on an allegation of
false testimony.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LOPEZ 3
COUNSEL
Davina T. Chen (argued), Law Office of Davina T. Chen,
Glendale, California, for Defendant-Appellant.
L. Ashley Aull (argued), Office of the United States Attorney,
Los Angeles, California, for Plaintiff-Appellee.
OPINION
WARDLAW, Circuit Judge:
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.
4 UNITED STATES V. LOPEZ
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.1 The form is
used to record the removal of an individual from the United
States during the expedited removal process.2 This form has
two parts. The top half of the form, the “Notice to Alien
1
“The Alien File (A-File), Index, and National File Tracking System of
Records is the official record system that contains information regarding
transactions involving an individual as he/she passes through the U.S.
immigration and inspection process.” Privacy Act of 1974; U.S.
Citizenship and Immigration Services, Immigration and Customs
Enforcement, Customs and Border Protection—001 Alien File, Index, and
National File Tracking System of Records, 76 Fed. Reg. 34233, 34234
(June 13, 2011). “The hardcopy paper A-File, which contains the official
record material about each individual for whom DHS has created a record
under the Immigration and Nationality Act such as: Naturalization
certificates; various documents and attachments (e.g., birth and marriage
certificates); applications and petitions for benefits under the immigration
and nationality laws; reports of arrests and investigations; statements;
other reports; records of proceedings before or filings made with the U.S.
immigration courts and any administrative or federal district court or court
of appeal; correspondence, and memoranda.” Id. at 34236.
2
Expedited removal proceedings provide a streamlined process by
which aliens who attempt to gain entry to the United States but are not
admissible can be removed by an immigration officer without further
hearing or review. This process does not apply to those seeking asylum
or expressing a fear of persecution. See 8 U.S.C. § 1225(b)(1)(A)(i).
UNITED STATES V. LOPEZ 5
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.
The bottom half of the form, the “Verification of
Removal,” is the portion designed to record the physical
removal of the alien across the border. The verification of
removal includes the following information about the alien’s
departure: departure date, port of departure, manner of
departure, and signature and title of the verifying officer. In
addition, it bears a photograph of the alien removed, his
signature, his right index fingerprint, and the signature of the
official taking that fingerprint. Here, all portions of the form
were completed. Thus, Lopez’s name, photograph, signature,
and fingerprint appear on his Verification of Removal. The
departure date is listed as February 11, 2010, the manner of
departure is described as “afoot,” and the port of departure is
identified as Nogales, Arizona. The form bears signatures
from two officers: a border patrol agent who verified the
removal and the official who took Lopez’s fingerprint.
Neither of these signatures is legible, however, and none of
the government’s witnesses could identify the officers who
signed the form.
Agent Harris was the government’s key witness to
Lopez’s physical removal, an element of the offense the
government is required to prove beyond a reasonable doubt.
Removal was the only element seriously contested at trial.
6 UNITED STATES V. LOPEZ
Agent Harris testified that the alien’s fingerprint is placed on
the verification of removal in Nogales as the alien “step[s] off
the bus [from Tuscon] and right before [he is] removed back
. . . to Mexico.” After the alien is fingerprinted, he is walked
to the border. On cross, defense counsel questioned Agent
Harris about his inability to decipher the signatures on
Lopez’s Verification of Removal or otherwise identify the
agents who signed it. On redirect, the prosecutor asked Agent
Harris, “based upon your training and experience by looking
at [Lopez’s Verification of Removal,] do you believe he was
actually deported from the United States?” Agent Harris
responded, “Yes. I believe he was.” It is undisputed that
Agent Harris was not at the Nogales border when Lopez was
removed; nor was Harris qualified as an expert under Federal
Rule of Evidence 702.
Although Lopez unsuccessfully challenged the validity of
his removal order in a pre-trial motion to dismiss the
information, the government did not introduce the order of
removal (Form I-860) at trial. At the close of the
government’s case, Lopez moved for a directed verdict under
Federal Rule of Criminal Procedure 29 in part because the
government failed to introduce a removal order. The district
court denied the motion, ruling that an order of deportation or
removal is not a necessary element of a Section 1326 offense
so long as evidence of physical removal has been introduced.
Lopez raises several issues: whether 8 U.S.C. § 1326
requires proof of an order of removal or deportation as an
element of the offense when the defendant has been deported
or removed; whether the Verification of Removal and Agent
Harris’s opinion testimony that Lopez was in fact deported
were properly admitted; and, if not, whether those errors
UNITED STATES V. LOPEZ 7
require us to reverse Lopez’s conviction and vacate his
sentence.
II.
The district court ruled that 8 U.S.C. § 1326 does not
require the government to prove that an order of removal or
deportation was issued where the alien has been deported or
removed. We agree. We review de novo a district court’s
interpretation of a statute, and we begin with the text of the
statute. See United States v. Havelock, 664 F.3d 1284, 1289
(9th Cir. 2012) (en banc). The statute provides that an alien
who enters, attempts to enter, or is at any time found in the
United States shall be guilty of a crime if he previously “has
been denied admission, excluded, deported, or removed or
has departed the United States while an order of exclusion,
deportation, or removal is outstanding.” 8 U.S.C.
§ 1326(a)(1). Lopez argues that the last clause, “while an
order of exclusion, deportation, or removal is outstanding,”
applies to the entire subsection. As the district court
concluded, however, the statutory language requires as an
element of the offense an outstanding order of exclusion,
deportation, or removal only when an alien has “departed” the
United States. If the alien “has been denied admission,
excluded, deported, or removed,” then no order is required.
The phrase is worded in the passive voice because the alien
is the subject of the enforcement action. The second clause
presupposes that the alien departed on his own initiative, in
which case, the fact of his return alone cannot support a
conviction under Section 1326 because returning alone is not
the criminal act punished by Section 1326(a)(1). Indeed, “As
a general rule, it is not a crime for a removable alien to
remain present in the United States.” Arizona v. United
States, 132 S. Ct. 2492, 2505 (2012). Rather, the criminal act
8 UNITED STATES V. LOPEZ
is returning to the United States after the government has
ordered the alien excluded, deported, or removed. Hence, the
order of deportation, removal, or exclusion becomes a
necessary element that the government must prove beyond a
reasonable doubt if the alien returns after he “has departed”
on his own. Adducing sufficient proof that the order was
issued is the only way to demonstrate that the government
has, in fact, ordered the alien removed and that his return
without permission violates the statute.
The Ninth Circuit’s Model Criminal Jury Instruction 9.8
supports this interpretation. The model instruction, properly
given to the jury here, identifies five elements. As to the first
element, the government must prove:
First [[the defendant was [removed]
[deported] from the United States]] [[the
defendant departed the United States while an
order of [removal] [deportation] was
outstanding]];
9th Cir. Model Crim. Jury Instr. 9.8 (2010) (all brackets in
original). The separate double brackets indicate that the court
should give the jury either one of the instructions, but not
both. So if the defendant was deported or removed, the court
moves on to the second element of the offense. If he instead
“departed,” the government does not meet its burden with
respect to element one unless it also proves that the defendant
departed “while an order of removal or deportation was
outstanding.” See United States v. Gonzalez-Villalobos,
724 F.3d 1125, 1129 (9th Cir. 2013) (“In a prosecution for
illegal reentry under 8 U.S.C. § 1326(a), the Government
must prove, inter alia, that the defendant was previously
‘denied admission, excluded, deported, or removed or has
UNITED STATES V. LOPEZ 9
departed the United States while an order of exclusion,
deportation, or removal [wa]s outstanding.’ 8 U.S.C.
§ 1326(a)(1); see also 9th Cir. Model Crim. Jury Instr. 9.8
(2010).”).
The cases Lopez cites for the proposition that an order of
removal or deportation is an element of the crime that must
be proven to the jury under all circumstances are inapposite.
True, we have said that “[o]ne of the elements of a conviction
under § 1326 is a prior removal order.” United States v.
Vidal-Mendoza, 705 F.3d 1012, 1014 (9th Cir. 2013). But
Vidal-Mendoza—as well as United States v. Barajas-
Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011), and other
cases cited by Lopez—involve collateral challenges to the
validity of an order of deportation under 8 U.S.C. § 1326(d),
not whether a deportation or removal order must be
introduced at trial. These cases stand for the uncontroversial
proposition that the validity of a removal or deportation order
is always a predicate to the crime because the deportation
must be valid, legal, and comport with due process
requirements to sustain a conviction under Section 1326.
This does not necessarily mean that where the government
proves that the alien was actually physically removed, the
government must also prove the existence of a deportation or
removal order.
Indeed, if actual physical removal or deportation is
proven, a valid order of removal or deportation may be
presumed in the absence of a collateral pre-trial challenge in
the form of a motion to dismiss the indictment, or, as here,
the information. Fed. R. Crim. P. 12(b)(3)(B) (requiring “a
motion alleging a defect in the indictment or information” to
be made before trial); see, e.g., United States v. Lopez-
Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc)
10 UNITED STATES V. LOPEZ
(reviewing a district court’s grant of a motion to dismiss an
indictment under Section 1326 based on the invalidation of
the deportation order underlying the indictment). Implicitly
recognizing this rule, Lopez filed a pre-trial motion to dismiss
the information due to unlawful deportation, which
challenged the validity of his underlying removal order. The
district court denied this motion, finding that although Lopez
did not sign the removal order as required by 8 C.F.R.
§ 235.3(b)(2)(I), he suffered no prejudice. Lopez did not
appeal the denial of his motion to dismiss.
Lopez asserts that our decision in United States v.
Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005), requires
the government to prove that an order of removal or
deportation was outstanding as an element of every § 1326(b)
offense. Lopez points us to our description in that case of
what the government must show to prove “physical removal”:
“The Government must prove beyond a reasonable doubt that
Bahena-Cardenas physically left the country sometime
between the time he was ordered removed and the time he
was found in the United States.” Id. at 1074. In Bahena-
Cardenas, the issue was whether the government could meet
its burden of proving actual physical removal by introducing
a warrant of deportation signed by the agent who witnessed
the defendant’s departure from the United States. We
concluded that the warrant of deportation is nontestimonial
and therefore does not implicate Crawford v. Washington,
541 U.S. 36 (2004). 411 F.3d at 1074–75. Because a warrant
of deportation is admissible to prove physical removal in a
deportation case, we upheld the conviction. Bahena-
Cardenas is squarely in line with our holding as to proof of
removal or deportation orders, and does nothing to disturb the
legal requirement that actual physical removal from the
United States must be proven.
UNITED STATES V. LOPEZ 11
III.
It is well-established that the government is required to
prove physical removal from the United States as an element
of the crime under 8 U.S.C. § 1326. See Bahena-Cardenas,
411 F.3d at 1074. We must decide whether the government
presented sufficient evidence of Lopez’s physical removal by
submitting the Verification of Removal along with Officer
Oki’s testimony as the temporary custodian of Lopez’s A-File
and eliciting opinion testimony from Agent Harris. To
determine the admissibility of the Verification of Removal,
we review de novo the district court’s interpretation of the
Federal Rules of Evidence, but once we determine that the
evidence does fall within the given rule, we review the
district court’s decision to admit it for abuse of discretion.
United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006).
Because Lopez failed to object to Agent Harris’s opinion
testimony at trial, we review its admission for plain error.
Puckett v. United States, 556 U.S. 129, 135 (2009).3
A.
The district court did not err by admitting Lopez’s
Verification of Removal. A verification of removal comports
with the requirements of the Confrontation Clause and is
admissible under the public records exception to the rule
against hearsay.
3
Plain error review involves four steps: there must be an error or defect;
the error must be clear or obvious; the error must have affected the
appellant’s substantial rights; and we may exercise our discretion to
remedy the error in cases where it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Puckett, 556 U.S. at 135
(internal quotation marks and alteration omitted).
12 UNITED STATES V. LOPEZ
We have previously held that “a warrant of removal is
nontestimonial.”4 Bahena-Cardenas, 411 F.3d at 1075;
United States v. Orozco-Acosta, 607 F.3d 1156, 1163 (9th
Cir. 2010) (reaffirming Bahena-Cardenas after Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009)).
We have not yet addressed a Confrontation Clause
challenge to the admissibility of a verification of removal as
opposed to a warrant of removal. However, reasoning by
analogy to Bahena-Cardenas and Orozco-Acosta, we
conclude that like a warrant of removal, a verification of
removal is nontestimonial. Both documents record the alien’s
physical removal across the border and are made for the
purpose of recording the movement of aliens. Compare
Orozco-Acosta, 607 F.3d at 1162–63 (describing a warrant of
removal), with Form I-296. The only functional difference
between the two is that a verification of removal is used to
record the removal of aliens pursuant to expedited removal
procedures, while the warrant of removal records the removal
of aliens following a hearing before an immigration judge.
See 8 C.F.R. § 241.2 (2005) (noting that a Form I-205,
Warrant of Removal, is “based upon the final administrative
removal order in the alien’s case”); 8 U.S.C. § 1229a
(explaining that removal proceedings shall in general be
conducted by an immigration judge, and that such
proceedings “shall be the sole and exclusive procedure for
determining whether an alien may be admitted to the United
States or, if the alien has been so admitted, removed from the
United States[,]” except where otherwise specified in the
chapter).
4
Form I-205 is entitled “Warrant of Removal/Deportation.” It is
referred to interchangeably in our previous cases and in federal regulations
as a warrant of removal or a warrant of deportation.
UNITED STATES V. LOPEZ 13
In Bahena-Cardenas, we concluded that a warrant of
removal/deportation is nontestimonial because it is “not made
in anticipation of litigation, and because it is simply a routine,
objective cataloging of an unambiguous factual matter.”
411 F.3d at 1075. In Orozco-Acosta, we reaffirmed our
holding in Bahena-Cardenas, once again reasoning that
warrants of removal/deportation are nontestimonial because
they are “not made in anticipation of litigation,” they are
“simply a routine, objective, cataloguing of an unambiguous
factual matter,” and they “have inherent reliability because of
the Government’s need to keep accurate records of the
movement of aliens.” Orozco-Acosta, 607 F.3d at 1163
(internal quotation marks omitted).
These same considerations lead us to conclude that a
verification of removal is nontestimonial in nature as well.
First, there is no evidence that a verification of removal is
completed in anticipation of litigation. Second, a verification
of removal is “simply a routine, objective, cataloguing of an
unambiguous factual matter.” Id. A verification of removal
records the fact that an individual alien was removed from the
United States. The alien’s name, photograph, fingerprint, and
signature all appear on the form, as do the departure date, the
port of departure, and the manner of departure. It is signed by
a “verifying officer” and requires that officer to indicate his
title as well. That it is the removed alien’s fingerprint on the
form is evidenced by the signature of the officer who took the
fingerprint. Thus, a verification of removal catalogues the
unambiguous factual matter—whether an alien has been
removed—just as a warrant of removal/deportation does.
Verifications of removal are also routine. They are
completed for all aliens removed pursuant to expedited
removal procedures. Third, a verification of removal has the
same “inherent reliability because of the Government’s need
14 UNITED STATES V. LOPEZ
to keep accurate records of the movement of aliens” as a
warrant of removal/deportation. It is equally important for
the government to record which aliens have been removed
under expedited removal procedures as it is to record which
aliens have been removed in other circumstances. Both
documents are placed in the alien’s A-File. There is no
daylight between the function of these two documents that
would suggest one should be deemed nontestimonial while
the other is deemed testimonial.
Although Lopez recognizes that the Confrontation Clause
analysis applies equally to a warrant of removal/deportation
and a verification of removal, he contends that a verification
of removal is, nevertheless, inadmissible hearsay. Under
Federal Rule of Evidence 803(8), a record or statement of a
public office is admissible as an exception to the hearsay rule
if it sets out “a matter observed while under a legal duty to
report, but not including, in a criminal case, a matter observed
by law-enforcement personnel.” Fed. R. Evid. 803(8)(A)(ii).
We review de novo whether a verification of removal falls
into the public records exception to the hearsay rule. United
States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir.
2009).
Again, reasoning by analogy to our precedent permitting
admission of warrants of removal/deportation, we reject
Lopez’s assertion that the general prohibition against
admitting records created by law enforcement personnel
codified in Federal Rule of Evidence 803(8)(A)(ii) applies to
verifications of removal. In United States v. Loyola-
Dominguez, 125 F.3d 1315, 1317–18 (9th Cir. 1997), we
reaffirmed that warrants of deportation are admissible in
Section 1326 prosecutions even though they describe a matter
observed by border patrol agents. See United States v.
UNITED STATES V. LOPEZ 15
Hernandez-Rojas, 617 F.2d 533, 534–35 (9th Cir. 1980)
(holding the same). Because warrants of deportation reflect
“ministerial, objective observation[s] and do not implicate the
concerns animating the law enforcement exception to the
public records exception,” they are not precluded by that
exception. Loyola-Dominguez, 125 F.3d at 1318 (internal
quotation marks omitted). We have noted that the purpose of
the law enforcement exception is to “exclude observations
made by officials at the scene of the crime or apprehension,
because observations made in an adversarial setting are less
reliable than observations made by public officials in other
situations.” United States v. Hernandez-Rojas, 617 F.2d 533,
535 (9th Cir. 1980). Excluding a verification of removal
would not further this purpose because the observation made
by a law enforcement officer in verifying the removal of an
alien is not made at the scene of a crime or apprehension nor
made in an adversarial setting. Rather, like a warrant of
deportation, a verification of removal records the movement
of aliens across the United States border. The form thus
shares the same “inherent reliability because of the
Government’s need to keep accurate records of the movement
of aliens,” id., that we found important to our conclusion that
warrants of deportation are not inadmissible hearsay.
Lopez misplaces his reliance on slight differences in the
two types of forms, arguing that the observations recorded on
a verification of removal are more subjective. While it is true
that subjective observations of law enforcement officers are
excluded as inadmissible hearsay, the slight differences in the
two forms cannot obscure the plain fact that neither form
leaves room for subjectivity. Both forms require law
enforcement agents to verify the removal of aliens from the
United States and attest to that verification. The question
16 UNITED STATES V. LOPEZ
answered by the officer signing either form is the same
objective one: whether or not the alien was removed.
Lopez also argues that the differences between the two
forms are relevant to the first prong of the public records
exception: whether the matter was “observed while under a
legal duty to report.” Fed. R. Evid. 803(8). He argues that
because a warrant of deportation includes a signature line for
the officer who “witnessed” the removal, while a verification
of removal does not, any removal recorded on the latter form
cannot be said to have been “observed” and is therefore
inadmissible. Lopez’s argument falters, however, when one
considers that warrants of deportation, which are admissible,
provide an option for an officer to indicate that he either
“witnessed” the removal or that he “verified the removal.” If
verifying the removal constitutes an “observation” sufficient
to satisfy the requirements of Rule 803(8), the same principle
applies to verifications of removal, rendering them also
admissible under Rule 803(8).
The verification of removal also meets the requirement
that “the document was a record of matters observed pursuant
to a duty imposed by law.” United States v. Pintado-Isiordia,
448 F.3d 1155, 1157 (9th Cir. 2006) (internal quotation marks
omitted). We have not interpreted the “duty imposed by law”
requirement to mean that a statute or regulation expressly
imposes duties to observe, report, and keep records. Rather,
it suffices if the nature of the responsibilities assigned to the
public agency are such that the record is appropriate to the
function of the agency. 4 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 8.88 (3d ed. 2012)
(collecting cases). Recording and maintaining verifications
that an individual has been deported falls under the rubric of
responsibilities assigned to the Department of Homeland
UNITED STATES V. LOPEZ 17
Security; therefore, completing the verification of removal
form is appropriate to the function of the agency.
Having determined that a verification of removal falls
within the public records exception to the hearsay rule, we
examine whether it was an abuse of discretion for the district
court to admit it here. It was not. At trial, the prosecution
properly authenticated the Verification of Removal by calling
deportation officer Ron Oki, the temporary custodian of
Lopez’s A-File, as a witness. In United States v. Estrada-
Eliverio, 583 F.3d 669 (9th Cir. 2009), we squarely held that
documents from an A-File may be authenticated under
Federal Rule of Evidence 901,5 which requires “the proponent
[to] produce evidence sufficient to support a finding that the
item is what the proponent claims it is.” Fed. R. Evid. 901(a).
Specifically, under Rule 901(b)(7), public records may be
authenticated based on evidence that “a) a document was
recorded or filed in a public office as authorized by law; or
b) a purported public record or statement is from the office
where items of this kind are kept.” Fed. R. Evid. 901(b)(7).
In Estrada-Eliverio, we held that the district court did not
abuse its discretion in admitting several A-File documents,
5
In Estrada-Eliverio we considered the interplay between Federal Rule
of Civil Procedure 44 and Federal Rule of Evidence 901. Under Rule 44,
made applicable in a criminal case by Federal Rule of Criminal Procedure
27, “an official record is admissible if it is an official publication of the
record or a copy of the record attested by the officer with legal custody of
the record and accompanied by a certificate, made under seal, that the
officer has custody. In addition, the Rule allows a party to prove that a
document is an official record by any other method authorized by law.”
Estrada-Eliverio, 583 F.3d at 672 (internal quotation marks and citations
omitted). We held, “[a]lthough the government could have relied on Rule
44 to authenticate the A-file documents, it was not so restricted . . . FRE
901 provided an alternative basis for establishing the documents’
authenticity.” Id.
18 UNITED STATES V. LOPEZ
including the defendant’s warrant of removal or deportation,
under Rule 901(b)(7). There, a Border Patrol Agent testified
“that such documents are kept in A-files, that the documents
offered were copies of documents from [defendant’s] A-file,
that [the Agent] was the custodian of that A-file, and that the
documents admitted were true and correct copies of the
documents in the A-file, which [the Agent] had personally
seen.” 583 F.3d at 671. In Lopez’s case, Officer Oki testified
to the same—that he was the temporary custodian of Lopez’s
A-File, that a verification of removal is a document that is
included customarily in A-Files, and that the Verification of
Removal introduced as Exhibit 12 was a true and correct copy
of a document from Lopez’s A-File. Moreover, as we
explained in Estrada-Eliverio, “FRE 901 does not require
personal knowledge of a document’s creation, but rather only
personal knowledge that a document was part of an official
file.” 583 F.3d at 673. Officer Oki’s testimony indicates that
he had the requisite personal knowledge, and therefore his
“testimony was sufficient to make a prima facie case for
authenticity.” Id.
B.
Although it was not an abuse of discretion to admit the
Verification of Removal, doubts apparently lingered as to
whether it was sufficient evidence to convince a jury beyond
a reasonable doubt that Lopez had been physically removed.
On direct, Officer Oki testified that he was unable to
determine who signed the Verification of Removal or identify
either the verifying officer or official who took the
fingerprint. Nor was Officer Oki in Nogales when Lopez was
removed or in possession of any other personal knowledge of
Lopez’s removal. Similarly, during cross-examination, Agent
Harris could testify only to general procedures and admitted
UNITED STATES V. LOPEZ 19
he did not witness Lopez’s removal (he was forty to fifty
miles away at the time) and did not know who signed the
Verification of Removal as the verifying officer or as the
agent who took the fingerprint. Indeed, he had “no idea” who
either person was.
Apparently realizing the possible gap in proof and the
doubts that may have been generated by the agents’ lack of
personal knowledge as to Lopez’s removal, on redirect, the
prosecutor asked Agent Harris, “[B]ased upon your training
and experience by looking at [Lopez’s Verification of
Removal,] do you believe he was actually deported from the
United States?” Agent Harris responded, “Yes. I believe he
was.”
Lopez argues that this testimony was inadmissible under
Federal Rule of Evidence 602 because Agent Harris lacked
personal knowledge. He also argues it was inadmissible
under Federal Rule of Evidence 701 because it could not have
been “rationally based on Agent Harris’s perception,” nor
was it established that Agent Harris had any training or
experience removing persons at the border or with the form
itself.
The district court clearly erred by admitting Agent
Harris’s lay opinion on the ultimate question before the jury.
Agent Harris’s testimony does not satisfy the personal
knowledge requirement of Federal Rule of Evidence 602.
Under Rule 602, a “witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.” Personal
knowledge means knowledge produced by the direct
involvement of the senses. See 3 Mueller & Kirkpatrick,
Federal Evidence § 6.6 (3d ed. 2012) (collecting cases).
20 UNITED STATES V. LOPEZ
Agent Harris was not in Nogales when Lopez was deported,
and he did not witness the deportation. In fact, Agent Harris
last saw Lopez before Lopez’s alleged departure on the bus
from Tucson to Nogales. Nor could Agent Harris identify
either of the signatures on the Verification of Removal, and
he certainly had not witnessed those signatures. Indeed,
Agent Harris admitted that he could not even remember
Lopez, testifying that Lopez was “a pretty common name.”
He could not have testified as to his personal knowledge as
required by Rule 602.
Agent Harris’s lay opinion testimony is also inadmissible
under Federal Rule of Evidence 701. A lay person may offer
testimony in the form of an opinion if it is “(a) rationally
based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.”
Rule 701(a) contains a personal knowledge requirement. The
advisory committee notes to Rule 701 clarify that 701(a) is
“the familiar requirement of first-hand knowledge or
observation,” Fed. R. Evid. 701 advisory committee notes
(1972), and we have held that the personal knowledge
requirement under Rule 602 is the same as that under Rule
701(a), see United States v. Simas, 937 F.2d 459, 464–65 (9th
Cir. 1991).
In presenting lay opinions, the personal knowledge
requirement may be met if the witness can demonstrate first-
hand knowledge or observation. As described above, Agent
Harris neither witnessed Lopez’s deportation nor could he
identify the people who signed the form. Although the
prosecution could have elicited Agent Harris’s lay opinion
testimony had it laid a proper foundation for Harris’s
UNITED STATES V. LOPEZ 21
familiarity and experience, if any, with verifications of
removal or the removal of aliens at the border, the
prosecution failed to do so. See United States v. Martinez,
657 F.3d 811, 818–19 (9th Cir. 2011) (upholding admission
of lay testimony on the meaning of coded communications by
a former member of the Mexican Mafia after establishing the
member’s “long experience in writing notes for the
organization”); see also United States v. Durham, 464 F.3d
976, 982 (9th Cir. 2006) (“[C]ourts have permitted lay
witnesses to testify that a substance appeared to be a narcotic
so long as a foundation of familiarity with the substance is
established.”) (quoting Fed. R. Evid. 701 advisory committee
notes (2000)). But see United States v. Figueroa-Lopez,
125 F.3d 1241, 1246 (9th Cir. 1997) (holding that testimony
by law enforcement agents that defendant’s conduct was
consistent with that of a drug trafficker violated Federal Rule
of Evidence 701 because permitting such testimony subverts
the requirements of Federal Rule of Criminal Procedure
16(a)(1)(E)); United States v. Peoples, 250 F.3d 630, 641 (8th
Cir. 2001) (holding inadmissible lay opinion testimony by an
FBI agent about recorded conversations because “when a law
enforcement officer is not qualified as an expert by the court,
her testimony is admissible as lay opinion only when the law
enforcement officer is a participant in the conversation, has
personal knowledge of the facts being related in the
conversation, or observed the conversations as they
occurred,” none of which occurred in this case).
The prosecution laid no foundation for Agent Harris’s
opinion that the Verification of Removal meant Lopez had
actually been physically removed. The prosecutor never
elicited the supposed “training and experience” he asked
Agent Harris to rely upon for his opinion testimony. Nor did
he ask whether Agent Harris ever used the form, worked at a
22 UNITED STATES V. LOPEZ
port of entry, removed anyone, or received training on the use
of the form. What was established is that Harris had been a
border patrol agent for four and a half years and at the time of
trial was assigned to the Naco Border Patrol Station, but had
been temporarily detailed to Three Points, west of Tucson.
Harris further testified that in February 2010, he was
temporarily detailed to the Tucson station, forty to fifty miles
from Nogales, for a period of six months. The Tucson station
is a processing center where individuals are brought after they
are arrested to be fingerprinted, photographed, and
interviewed. Tucson is not a place from which Mexican
citizens are actually removed or deported.
Based on the evidence admitted at trial, no possible
scenario exists under which Agent Harris’s lay opinion
testimony was “predicated upon concrete facts within [his]
own observation and recollection—that is facts perceived
from [his] own senses, as distinguished from [his] opinions or
conclusions drawn from such facts.” Durham, 464 F.3d at
982 (internal quotation marks omitted).
C.
We must next determine whether the error affected
Lopez’s substantial rights, “which in the ordinary case means
he must demonstrate that it affected the outcome of the
district court proceedings.” Puckett, 556 U.S. at 135 (internal
quotation marks omitted); see also United States v. Anguiano-
Morfin, 713 F.3d 1208, 1210 (9th Cir. 2013), cert. denied,
134 S. Ct. 543 (2013). Lopez has not met this burden
because the jury could have concluded that Lopez was
actually physically removed based on the Verification of
Removal and Officer Oki’s testimony which authenticated it.
UNITED STATES V. LOPEZ 23
Lopez argues that the Verification of Removal alone was
legally insufficient to support the jury’s finding that he had
been physically removed. We clarified our two-step
approach to evaluating sufficiency of the evidence claims in
United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en
banc). First, we are required to “construe the evidence at trial
in the light most favorable to the prosecution.” Id. at 1161
(internal quotation marks omitted). Only then may we
determine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Evidence will therefore be “insufficient to support
a verdict where mere speculation, rather than reasonable
inference, supports the government’s case.” Id. at 1167.
We have repeatedly held that a warrant of removal is
“sufficient alone to support a finding of removal beyond a
reasonable doubt.” United States v. Zepeda-Martinez,
470 F.3d 909, 913 (9th Cir. 2006); see United States v.
Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007) (“We noted
in Zepeda-Martinez that this warrant is sufficient alone to
support a finding of removal beyond a reasonable doubt.”)
(internal quotation marks and alteration omitted); Bahena-
Cardenas, 411 F.3d at 1075 (“We hold that the warrant of
deportation in this case is nontestimonial and thus admissible.
Accordingly, the government provided sufficient evidence of
physical removal.”).
Similarly, a properly authenticated verification of removal
is legally sufficient to support a finding of physical removal
beyond a reasonable doubt. As with warrants of removal, the
Verification of Removal “bore [defendant’s] name,
immigration identification number, photograph, signature,
and fingerprint.” Salazar-Lopez, 506 F.3d at 755. At no time
24 UNITED STATES V. LOPEZ
during trial did Lopez argue that the photograph, signature,
and fingerprint on the Verification of Removal did not belong
to him.6 During trial, the government called a fingerprint
expert who testified that the fingerprint on Lopez’s
Verification of Removal belonged to Lopez, and Lopez never
contested that fact. Nor did Lopez contend that the
photograph on the Verification of Removal was not of him;
and the jury could simply compare the photograph to the
defendant to determine whether it was his. Similarly, Lopez
did not challenge the authenticity of his signature on the
form.
In closing Lopez argued, “This entire case is built on a
piece of paper . . . . This is Exhibit 12. You will have this
exhibit back with you in the jury room.” Lopez also made the
most he could of the government’s inability to identify, much
less call, the border agents who took his fingerprint and
verified his removal, urging the jury to conclude that there
was not proof beyond a reasonable doubt that Lopez was
actually physically removed.7
6
Lopez’s counsel did argue that the government failed to prove that the
A-File was linked to Lopez in conjunction with his Rule 29 motion. The
district court properly rejected this argument based on the parties’ pretrial
stipulations and other documents introduced during trial from the A-File,
which established that the A-File belonged to Lopez.
7
That the prosecutor thought it was necessary to elicit Agent Harris’s
improper lay opinion testimony illustrates the weakness in the
government’s case. The illegible signatures on the Verification of
Removal form, inability to identify the agents who signed it, and the
failure to solicit testimony from those agents could, in another case, lead
the jury to conclude that the government had not met its burden. Although
Officer Oki testified that verifications of removal are completed when an
alien is physically removed, he did not testify about the specific
procedures followed at the border. Indeed, even in cases holding warrants
UNITED STATES V. LOPEZ 25
In addition to authenticating the Verification of Removal,
Officer Oki’s testimony provided the jury with a framework
in which to view the form. He testified that he has reviewed
“[t]housands” of A-Files in his career, which began in June
1996 as a special agent with INS. He testified that a
verification of removal is completed when a person is
physically removed from the United States, and it is
principally used by U.S. Customs and Border Patrol agents
because it is a document that is used at the borders. Finally,
he stated that he has seen “hundreds” of these documents, all
of which had the “exact format” as the one introduced in this
case.
We therefore conclude that a “rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Nevils, 598 F.3d at 1164 (quoting
Jackson, 443 U.S. at 319). Thus, we cannot conclude that the
erroneous admission of Agent Harris’s lay opinion affected
Lopez’s substantial rights or that it “seriously affect[ed] the
fairness, integrity or public reputation of judicial
proceedings.” Anguiano-Morfin, 713 F.3d at 1210–11
(quoting Puckett, 556 U.S. at 135).
of removal sufficient alone to support a finding of physical removal, the
government has elicited testimony from the agent who signed the warrant
of removal or testimony from an agent with the requisite experience and
training about the custom and practice of completing these forms. See
Salazar-Lopez, 506 F.3d at 755 (explaining that although a warrant of
removal is sufficient evidence of removal standing alone, the evidence of
physical removal was bolstered by the testimony of the officer who signed
defendant’s warrant of removal); Bahena-Cardenas, 411 F.3d at 1072
(noting that the agent who signed the warrant of deportation did not
testify, but another agent “testified that the normal practice is for
deportation officers to sign the warrant of deportation when they see the
alien leave the United States”).
26 UNITED STATES V. LOPEZ
IV.
Lopez argues that the district court abused its discretion
when it denied his Rule 33 motion for a new trial without an
evidentiary hearing. See United States v. Young, 17 F.3d
1201, 1202 (9th Cir. 1994). Lopez moved for a new trial on
the basis that Agent Harris testified falsely when he stated
that an alien is fingerprinted as he steps off the bus in
Nogales, immediately before being removed across the
border. The day after the jury convicted Lopez, defense
counsel, accompanied by an investigator for the public
defender’s office, Alonzo Garcia, interviewed Customs and
Border Protection Supervisor George Schmid. According to
Lopez, Officer Schmid confirmed that Agent Harris testified
falsely, asserting that someone who is removed across the
border at Nogales is not fingerprinted as he gets off the bus;
instead, he is fingerprinted at the processing station.
The district court did not abuse its discretion in denying
Lopez’s motion for a new trial. The district court correctly
found Lopez’s motion for an evidentiary hearing to cross-
examine Agent Harris and Officer Schmid untimely under
Local Rule 7-8. However, the district court also considered
the merits of Lopez’s argument and did not clearly err when
it found insufficient evidence of false testimony. The signed
declarations of Officer Schmid and Investigator Garcia upon
which Lopez relies do not directly contradict Agent Harris’s
testimony at trial; the unsigned declaration that did contradict
Agent Harris’s testimony was subsequently signed only after
the contradictory language had been excised. And, even if
Agent Harris testified falsely about the location at which the
fingerprint is taken, that point is so tangential that Lopez
cannot meet his burden of showing “there is a reasonable
probability that without the evidence the result of the
UNITED STATES V. LOPEZ 27
proceeding would have been different.” United States v.
Inzunza, 638 F.3d 1006, 1020 (9th Cir. 2011) (internal
quotation marks omitted).
V.
Accordingly, we find no reversible error and therefore
affirm.
AFFIRMED.