United States v. Diaz-Lopez , 403 F. App'x 199 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                              NOV 09 2010
    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. 09-50604
    Plaintiff - Appellee,              D.C. No. 3:09-cr-00864-JM-1
    v.
    MEMORANDUM *
    LUIS MIGUEL DIAZ-LOPEZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Jeffrey T. Miller, District Judge, Presiding
    Submitted August 31, 2010 **
    Pasadena, California
    Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.
    Luis Diaz-Lopez appeals his conviction for being a removed alien found in
    the United States without permission. See 
    8 U.S.C. § 1326
    (a). We have
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm. Because the facts are known
    to the parties, we repeat them only as necessary to explain our decision.
    Diaz argues that admission of certain documents violated the Confrontation
    Clause and the hearsay rule found in Federal Rule of Evidence 802.1 We review
    alleged violations of the Confrontation Clause de novo. United States v. Nguyen,
    
    565 F.3d 668
    , 673 (9th Cir. 2009). We review for abuse of discretion a district
    court’s decision to admit evidence under an exception to the hearsay rule. United
    States v. Orellana-Blanco, 
    294 F.3d 1143
    , 1148 (9th Cir. 2002).
    Diaz challenges admission of a warrant of removal. We have squarely held
    that admission of a warrant of removal does not violate the Confrontation Clause
    because it is not made in anticipation of litigation, and therefore is not testimonial.
    United States v. Orozco-Acosta, 
    607 F.3d 1156
    , 1163 (9th Cir. 2010). It does not
    matter that the contents of the first page of the warrant have not been addressed
    specifically by us because that page was not prepared in anticipation of litigation,
    and was nontestimonial. See id.; see also United States v. Villavicencio-Burruel,
    
    608 F.3d 556
    , 560–61 (9th Cir. 2010) (holding that admission of a warrant of
    1
    We address Diaz’s argument that admission of testimony regarding a
    database search lacked foundation and violated the best evidence rule in a
    simultaneously filed published opinion, which also affirms the district court’s
    judgment.
    2
    removability did not violate the Confrontation Clause). Also, admission of the
    warrant did not violate the hearsay rule because it is admissible under the
    exception for public records found in Rule 803(8). United States v. Loyola-
    Dominguez, 
    125 F.3d 1315
    , 1318 (9th Cir. 1997) (holding that case law “clearly
    establishes that warrants of deportation are public records within the meaning of
    Rule 803(8)”).
    Diaz contends that specific statements on the first page of the warrant are
    inadmissible hearsay. We disagree. The challenged statements are “ministerial,
    objective observation[s],” and the district court did not abuse its discretion by
    admitting them. United States v. Hernandez-Rojas, 
    617 F.2d 533
    , 535 (9th Cir.
    1980).
    Next, Diaz contends that the order of the immigration judge was
    inadmissible. This order was not admitted in violation of the Confrontation Clause
    because it was not testimonial. In United States v. Ballesteros-Selinger, we held
    that an immigration judge’s memorandum of oral decision was not testimonial
    because it was a public record “not made in anticipation of future litigation,” and
    was “a standardized form that gives a record of the parties and decision at the
    deportation hearing.” 
    454 F.3d 973
    , 975 (9th Cir. 2006). The order here shares the
    same features as the memorandum in Ballesteros-Selinger, and is not testimonial.
    3
    Diaz also contends that the order was inadmissible hearsay because the
    public records exception does not allow “factual findings resulting from
    investigations conducted by public officers” to be introduced against criminal
    defendants. See United States v. Sine, 
    493 F.3d 1021
    , 1036–37 (9th Cir. 2007).
    The order, however, contained no factual findings or analysis. And it was not
    hearsay because it was not introduced to prove the truth of the matter asserted. See
    United States v. Boulware, 
    384 F.3d 794
    , 805–06 (9th Cir. 2004). Admission of
    this order was not an abuse of discretion.
    On similar grounds, Diaz challenges admission of the warning to an alien
    ordered removed. But, admission of the warning did not violate the Confrontation
    Clause because it was not prepared in anticipation of litigation and was not
    testimonial. It is a “standardized form” with no personalized content or factual
    findings. See Ballesteros-Selinger, 
    454 F.3d at 975
    . Moreover, because this form
    contains only “routine,” “ministerial, objective observation[s],” it is admissible
    under the public records exception to the hearsay rule. Hernandez-Rojas, 
    617 F.2d at 535
    .
    We also reject the Confrontation Clause challenge to admission of a
    fingerprint card. The card contains only ministerial, objective observations. Like
    the warning of removal in Orozco-Acosta, the fingerprint card was not created in
    4
    anticipation of litigation and is not testimonial. See Orozco-Acosta, 607 F.3d at
    1163. Diaz argues that the second page of the fingerprint card violated the hearsay
    rule because it contained the findings of an investigation, but the second page is no
    less admissible than the first. The ministerial, objective observations on the second
    page have “‘inherent reliability because of the Government’s need to keep accurate
    records of the movement of aliens.’” Id. (quoting Hernandez-Rojas, 
    617 F.2d at 535
    ). The district court did not abuse its discretion by admitting the fingerprint
    card in its entirety.
    Finally, Diaz challenges admission of an affidavit that was sworn to and
    signed by him, contending that its admission violates both the Confrontation
    Clause and the hearsay rule. We conclude that it violated neither. Diaz claims that
    his signature on the affidavit does not show his adoption of the statement, that the
    affidavit is rather a statement of the border patrol agent who questioned him, and
    that, therefore, the border patrol agent should have testified in court. See United
    States v. Orellana-Blanco, 
    294 F.3d at 1148
    . But Diaz did more than merely sign;
    he added his initials to each page of the statement, said that he had read, or had
    read to him, the statement, placed his fingerprint over the date, and stipulated that
    the fingerprint matched his own. No evidence here undermines confidence in the
    ordinary inference that Diaz adopted the signed statement.
    5
    In Orellana-Blanco, in circumstances quite different from those here, we
    held that a person’s signature on an affidavit, under the circumstances of that case,
    did not manifest adoption of that statement. 
    Id.
     But there we considered evidence
    that answers were not translated verbatim. 
    Id.
     at 1147–49. We also considered
    testimony that “established a considerable language barrier” and disputed some
    responses on the form. 
    Id.
     Moreover, in Orellana-Blanco, unlike here, the
    interpreter was a third person who “wasn’t there for substantial portions of the
    interview.” 
    Id. at 1148
    . Orellana-Blanco states that “a signature would ordinarily
    make adoption plain,” and that, under ordinary circumstances, “a signed statement,
    even if written by another in another’s words, would be adopted as the party’s own
    if he signed it, because signing is a manifestation of adopting the statement.” 
    Id.
    That is the case here. Because Diaz’s statement was given under ordinary
    circumstances, it raises “no serious hearsay or confrontation clause problem.” 
    Id.
    AFFIRMED.
    6