United States v. Kaleena Morales ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-10069
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-02782-
CKJ-HCE-1
KALEENA LEAH MORALES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
March 13, 2013—San Francisco, California
Filed July 2, 2013
Before: M. Margaret McKeown, Consuelo M. Callahan,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 UNITED STATES V . MORALES
SUMMARY*
Criminal Law
The panel affirmed convictions for conspiracy to transport
aliens who unlawfully came to or entered the United States
and for transporting such aliens for private financial private
gain, in a case in which the defendant challenged the
admissibility of forms filled out by Border Patrol agents in
the field, which included statements by the smuggled aliens
that they were in the United States illegally.
The panel held that admission of the forms did not violate
the Confrontation Clause, but that the aliens’ admissions
included in the forms were inadmissible hearsay. Because the
forms are records of government agencies, the panel held that
the district court erred by admitting them under the business
records exception to the hearsay rule, Fed. R. Evid. 803(6).
The panel also held that the aliens’ statements that they were
in the United States illegally do not qualify as public records
under Fed. R. Evid. 803(8) because they do not describe
“activities” of the government, and the government does not
argue that aliens are under a “duty to report” their
immigration status.
The panel held that the error was harmless because the
erroneously admitted hearsay did not materially affect the
verdict.
*
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 . MORALES 3
COUNSEL
John D. Kaufmann, Tucson, Arizona, for Defendant-
Appellant.
Ryan P. DeJoe (argued), Assistant United States Attorney;
John S. Leonardo, United States Attorney; Christina M.
Cabanillas, Appellate Chief, Tucson, Arizona, for Plaintiff-
Appellee.
OPINION
IKUTA, Circuit Judge:
Kaleena Leah Morales appeals her convictions for one
count of conspiracy to transport aliens who unlawfully came
to or entered the United States, and three counts of
transporting such aliens, in each case for private financial
gain. See 8 U.S.C. § 1324. Among other claims, she
challenges the admissibility of certain forms filled out by
Border Patrol agents in the field, which included statements
by the smuggled aliens that they were in the United States
illegally.1 We hold that the admission of the forms did not
violate the Confrontation Clause, but the aliens’ admissions
included in the forms were inadmissible hearsay.
Nonetheless, this error was harmless because the erroneously
admitted hearsay did not materially affect the verdict.
1
In this opinion, we address M orales’s claim that the district court’s
admission of these forms violated her rights under the Confrontation
Clause and Rule 803(8) of the Federal Rules of Evidence. W e address her
other claims in an unpublished memorandum filed simultaneously with
this opinion.
4 UNITED STATES V . MORALES
I
According to the evidence adduced at trial, on July 17,
2011, Morales picked up her friend Sharae Jakaub in order to
clear up the title to a car Morales had recently purchased from
Jakaub. While on the highway, Jakaub mentioned that she
was broke and reminded Morales about a debt Morales owed
to her. Morales proposed a deal: if Jakaub agreed to help her
pick up five aliens who were in the country illegally, she
would give Jakaub half of the $1,500 she had been promised
by an unknown third party. Jakaub readily agreed. The pair
eventually exited the highway and arrived at a site filled with
trailers, one of which contained the five individuals Morales
had agreed to transport. Morales opened the trailer door,
arranged the five people in the back of her truck, and drove
back the way she came.
A few hours later, Arizona Department of Public Safety
Officer Steve Kroeger observed Morales’s truck driving more
slowly than the rest of the highway traffic. He also noticed
that her windshield was cracked. After “pacing” the vehicle
for a few miles to determine its speed, he stopped the truck
for suspected violations of two traffic ordinances. When
Officer Kroeger approached to ask Morales for her license
and registration, he spotted several other individuals lying
down horizontally and attempting to hide in the backseat of
the truck. When asked how many people were hiding in the
backseat, Morales refused to answer. Officer Kroeger
suspected that Morales and Jakaub might be involved in alien
smuggling and called the U.S. Border Patrol.
The Border Patrol agents ascertained that none of the five
individuals in the backseat of the truck was a United States
citizen or otherwise authorized to be in the United States.
UNITED STATES V . MORALES 5
The agents arrested three of the aliens, and Agent Brian
Peacock completed a field encounter form (a Field 826, now
referred to as Form I-826) for each arrested alien.
The Field 826 contains three sections.2 The first section
requires the Border Patrol agent to record the date and
location of the alien’s arrest, the funds found in the alien’s
possession, and basic biographical information about the
alien, such as the alien’s name, gender, and date and place of
birth. The second section contains a “Notice of Rights,” and
advises the alien of the reason for the arrest and
corresponding rights, such as the right to a hearing, the right
to obtain low-cost legal representation, and the right to
communicate with legal representatives or consular officials.
The third section contains a “Request for Disposition,” and
asks the alien to initial next to one of three options: “I
request a hearing before the Immigration Court to determine
whether or not I may remain in the United States”; “I believe
I face harm if I return to my country. My case will be
referred to the Immigration Court for a hearing”; or
I admit that I am in the United States illegally,
and I believe I do not face harm if I return to
my country. I give up my right to a hearing
before the Immigration Court. I wish to
return to my country as soon as arrangements
can be made to effect my departure. I
understand that I may be held in detention
until my departure.
2
W e have quoted the English version of the Field 826 in this opinion.
The forms in the record, which were presented to and signed by the aliens,
are in Spanish.
6 UNITED STATES V . MORALES
The form includes a line for the alien’s signature under these
options.
In this case, an agent filled out the first section on each
form. All of the aliens selected the third option in the
Request for Disposition section and signed on the line
provided for the alien’s signature, thus admitting they were in
the United States illegally and requesting to be returned to
their country.
Morales was ultimately arrested and charged with one
count of conspiracy to transport aliens who unlawfully came
to or entered the United States, and three counts of
transporting such aliens, in each case for private financial
gain. 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (a)(1)(A)(ii) &
(a)(1)(B)(i), 8 U.S.C. §§ 1324(a)(1)(A)(ii) & (a)(1)(B)(i). In
order to sustain Morales’s conviction for illegal transportation
of aliens for private financial gain under 8 U.S.C.
§§ 1324(a)(1)(A)(ii) & (a)(1)(B)(i), the government had to
prove beyond a reasonable doubt that: (1) the persons
Morales was transporting were aliens, § 1324(a)(1)(A)(ii); (2)
the aliens were not lawfully in the United States, id.; (3)
Morales knew or acted in reckless disregard of the fact that
the aliens were not lawfully in the United States, id.; (4)
Morales transported the aliens in order to help them remain
in the United States unlawfully, id.; and (5) Morales did so
for the purpose of commercial advantage or private financial
gain, § 1324(a)(1)(B)(i).
After the aliens’ apprehension, the government deposed
them on videotape and deported them pursuant to the Federal
UNITED STATES V . MORALES 7
Material Witness Statute, 18 U.S.C. § 3144.3 Rather than
attempting to bring them back to the United States to testify,
the government sought to introduce the recordings of their
depositions. The district court declined to admit this
deposition testimony because the government was unable to
prove that the aliens were “unavailable” for purposes of the
Confrontation Clause.
Four witnesses testified at the bench trial: Jakaub and
three Border Patrol agents, Agent Benjamin Wycoff, Agent
Shawn Brewer, and Agent Peacock. Jakaub described how
she and Morales agreed to share the profits from transporting
the aliens and how they transported them until they were
stopped by Officer Kroeger. Next, Agent Brewer and Agent
Peacock testified about their encounter with Morales and the
aliens in her vehicle. Finally, Agent Wycoff, the case agent
for Morales’s case, testified about the immigration status of
the individuals found in Morales’s car, including the
information reported in the Field 826s. He first testified that
he was responsible for consulting three databases used to
keep track of aliens and maintained by the immigration
service in the ordinary course of its business. His search of
those databases yielded no documentation allowing the aliens
to be present. Agent Wycoff then testified about the nature
3
Section 3144 states, in relevant part:
No material witness may be detained because of
inability to comply with any condition of release if the
testimony of such witness can adequately be secured by
deposition, and if further detention is not necessary to
prevent a failure of justice. Release of a material
witness may be delayed for a reasonable period of time
until the deposition of the witness can be taken pursuant
to the Federal Rules of Criminal Procedure.
8 UNITED STATES V . MORALES
and purpose of the Field 826s. He noted that agents in the
field fill out the form for every individual apprehended by the
Border Patrol, and that the forms are typically used to verify
entries in the Border Patrol’s databases because the
information in these forms comes directly from the
apprehended individual. Agent Wycoff further testified that
physical copies of the Field 826s were sent to the A-file for
“each person who has contact with immigration” as part of
the normal course of the Border Patrol’s business, and that
the information he obtained from the databases was consistent
with the information recorded on the Field 826s.
Morales objected to the admission of the Field 826s on
the grounds that they violated her confrontation rights, were
inadmissible hearsay, and had been admitted without an
adequate foundation. The district court overruled these
objections. The court held that the forms were “non-
testimonial because [they were] not made in anticipation of
litigation.” Further, the court held that the forms qualified for
a hearsay exception under Rule 803(6) of the Federal Rules
of Evidence, which provides that business records which
meet certain criteria are not excluded by the rule against
hearsay. See Fed. R. Evid. 803(6).
The district court found Morales guilty on all four counts
and sentenced her to twenty-seven months in custody for each
count, all of which were to be served concurrently. Morales
timely appealed.
UNITED STATES V . MORALES 9
II
We have jurisdiction under 28 U.S.C. § 1291. We review
alleged violations of the Confrontation Clause and
constructions of the hearsay rules de novo. See United States
v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc);
United States v. Olafson, 203 F.3d 560, 565 (9th Cir. 2000).
We review decisions to admit evidence pursuant to a hearsay
exception for abuse of discretion. See United States v.
Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004). When the
district court admits evidence in violation of the
Confrontation Clause, we must reverse the conviction unless
the government can show that the error was harmless beyond
a reasonable doubt. See United States v. Bowman, 215 F.3d
951, 961 (9th Cir. 2000). When it improperly admits hearsay,
we may consider that error harmless “‘unless we have grave
doubt whether the erroneously admitted evidence
substantially affected the verdict.’” Alvarez, 358 F.3d at 1214
(quoting United States v. Ellis, 147 F.3d 1131, 1134 (9th Cir.
1998)).
On appeal, Morales challenges the district court’s
admission of the Field 826s for the three aliens, arguing that
the admission of these forms violated her rights under the
Confrontation Clause and constituted inadmissible hearsay.
She also argues that the Field 826s were not properly
authenticated. She argues that because the forms were
improperly admitted, the district court erred in relying on
them as proof that the individuals she transported were aliens
who were not lawfully in the United States, two elements of
the offense of illegal transportation of aliens for private
financial gain under 8 U.S.C. §§ 1324(a)(1)(A)(ii) &
(a)(1)(B)(i). Accordingly, Morales argues that her conviction
must be reversed. We address these contentions in turn.
10 UNITED STATES V . MORALES
A
We begin with Morales’s claim that the district court
violated her Confrontation Clause rights in admitting the
Field 826s to prove the alienage and unlawful presence of the
individuals, without giving her the opportunity to cross-
examine the agents and aliens whose observations and
admissions are recorded in the forms.
The Confrontation Clause of the Sixth Amendment states:
“In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” The
Supreme Court has interpreted this language as barring
“‘admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-
examination.’” Davis v. Washington, 547 U.S. 813, 821
(2006) (quoting Crawford v. Washington, 541 U.S. 36, 53–54
(2004)). A statement falls within the “core class of
testimonial statements” for purposes of the Confrontation
Clause when it was “made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)
(quoting Crawford, 541 U.S. at 51–52).
Under this rule, as Melendez-Diaz explained, business and
public records “are generally admissible absent confrontation
not because they qualify under an exception to the hearsay
rules, but because—having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not
testimonial.” Id. at 324. A business or public record is not
“testimonial” due to “the mere possibility” that it could be
UNITED STATES V . MORALES 11
used in a later criminal prosecution. United States v. Orozco-
Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010). Rather, such
records are testimonial only if there is some showing that the
primary purpose of the record is for use in litigation. See id.
at 1163–64. This “primary purpose” analysis is objective,
and focuses on the primary purpose “reasonable participants
would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the
encounter occurred.” Michigan v. Bryant, 131 S. Ct. 1143,
1156 (2011); see also Orozco-Acosta, 607 F.3d at 1163–64
(noting that a warrant of deportation is nontestimonial
because “neither [its] sole purpose nor even its primary
purpose is use at trial,” but rather “to maintain records
concerning the movement of aliens and to ensure compliance
with orders of deportation.” (quoting United States v. Torres-
Villalobos, 487 F.3d 607, 613 (8th Cir. 2007))).
Like the warrants of removal considered in Orozco-
Acosta, the Field 826s are nontestimonial because they were
“created for the administration of an entity’s affairs and not
for the purpose of establishing or proving some fact at trial.”
Id. at 1163 (quoting Melendez-Diaz, 557 U.S. at 324). As is
evident from the form itself, as well as Agent Wycoff’s
testimony about its use, a Border Patrol agent uses the form
in the field to document basic information, to notify the aliens
of their administrative rights, and to give the aliens a chance
to request their preferred disposition. The Field 826s are
completed whether or not the government decides to
prosecute the aliens or anyone else criminally. See, e.g.,
USCIS Inspector’s Field Manual § 18.3(a)(2) (Charles M.
Miller, ed., 2008) (“Aliens arrested under section 287(a)(2)
of the Act [8 U.S.C. § 1357(a)(2)] will be provided with a
Notice of Rights and Request for Disposition, Form I-826.”).
The nature and use of the Field 826 makes clear that its
12 UNITED STATES V . MORALES
primary purpose is administrative, not for use as evidence at
a future criminal trial. Even though statements within the
form “may become ‘relevant to later criminal prosecution,’”
this potential future use “does not automatically place [the
statements] within the ambit of ‘testimonial.’” Orozco-
Acosta, 607 F.3d at 1164 (quoting United States v. Mendez,
514 F.3d 1035, 1046 (10th Cir. 2008)). Accordingly, we hold
that neither the Field 826 itself, nor the statements within it,
implicate the Confrontation Clause.
B
Because as a general matter the Field 826s are
nontestimonial, we next turn to Morales’s argument that the
district court erred in admitting the Field 826s under an
exception to the rule against hearsay.
Hearsay is a statement that a declarant “does not make
while testifying at the current trial or hearing” and is
“offer[ed] in evidence to prove the truth of the matter asserted
in the statement.” Fed. R. Evid. 801(c). The Field 826s
contain three types of statements: the agents’ direct
observations, the agents’ recordings of the aliens’ statements
about their biographical information, and the aliens’ signed
requests for disposition. Each type of statement must satisfy
an exception to the rule against hearsay in order to be
admitted for its truth. See Fed. R. Evid. 805.
The district court admitted the Field 826s under the
business records exception to the rule against hearsay. See
Fed. R. Evid. 803(6). This was an error, because this
exception does not apply to records of government agencies,
which are public records for purposes of Rule 803. United
States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979); see also
UNITED STATES V . MORALES 13
United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th
Cir. 2006) (stating that documents that are part of an alien’s
A-file qualify as public records). Nevertheless, the
government argues that we can uphold the district court’s
admission of the documents under the public records
exception to the rule against hearsay. See Fed R. Evid.
803(8). Because we “may affirm the district court on any
basis supported by the record,” Moreno v. Baca, 431 F.3d
633, 638 (9th Cir. 2005), we turn to the question whether the
Field 826s were admissible under this exception.
As relevant here, Federal Rule of Evidence 803(8)
provides that public records are “not excluded by the rule
against hearsay, regardless of whether the declarant is
available as a witness,” Fed. R. Evid. 803, when the record is
“[a] record or statement of a public office” that sets out either
“the office’s activities” or “a matter observed while under a
legal duty to report, but not including, in a criminal case, a
matter observed by law-enforcement personnel,” and “neither
the source of information nor other circumstances indicate a
lack of trustworthiness.”4
4
Rule 803(8) states in full:
(8) Public Records. A record or statement of a public
office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to
report, but not including, in a criminal case, a
matter observed by law-enforcement personnel; or
14 UNITED STATES V . MORALES
The government relied on two types of statements in the
Field 826s to prove that the individuals in Morales’s car were
in the country illegally: the aliens’ statements to the agents
about their names and places of birth, and the aliens’ signed
admissions that they were in the United States illegally. We
must consider whether these statements independently qualify
for an exception to the rule against hearsay. See Sana v.
Hawaiian Cruises, Ltd., 181 F.3d 1041, 1045 (9th Cir. 1999).
In general, statements by third parties who are not
government employees (or otherwise under a legal duty to
report) may not be admitted pursuant to the public records
exception but must satisfy some other exception in order to be
admitted. See 4 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 8:88 (3d ed. 2012) (noting
that the exception allowing for a “matter observed while
under a legal duty to report” in Rule 803(8) “generally does
not pave the way for official records to prove conclusions
resting on statements by outsiders or to prove what such
outsider statements themselves assert” unless “the outsider’s
statement itself fits an exception”); see also United States v.
Pazsint, 703 F.2d 420, 424 (9th Cir. 1983) (“It is well
established that entries in a police report which result from
the officer’s own observations and knowledge may be
admitted but that statements made by third persons under no
business duty to report may not.”). We have applied this
analysis to statements made by aliens and reported by
(iii) in a civil case or against the government in a
criminal case, factual findings from a legally
authorized investigation; and
(B) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Fed. R. Evid. 803(8).
UNITED STATES V . MORALES 15
government officials. See, e.g., Pena-Gutierrez, 222 F.3d at
1087–88 (noting that an alien’s statement to an immigration
officer about his alienage was inadmissible hearsay-within-
hearsay which had to be admitted under a separate exception
to the hearsay rule); see also United States v. Montes-Salas,
669 F.3d 240, 253 (5th Cir. 2012) (testimony by Border
Patrol agent that an alien told him that the defendant’s phone
number had appeared in her phone was hearsay-within-
hearsay).
Here, the aliens’ statements that they were in the United
States illegally do not qualify as public records under Rule
803(8), because they do not describe “activities” of the
government, and the government does not argue that aliens
are under a “duty to report” their immigration status. See
Fed. R. Evid. 803(8)(A). Had the aliens been unavailable,
their statements might have been admissible under a separate
exception, such as a “statement against interest” under Rule
804(b)(3) or a “statement of personal or family history” under
Rule 804(b)(4). See Olafson, 203 F.3d at 565; United States
v. Winn, 767 F.2d 527, 530 (9th Cir. 1985). But because the
district court concluded that the government had failed to
establish that the aliens were unavailable for purposes of Rule
804, their statements are not admissible under these
exceptions. See Pena-Gutierrez, 222 F.3d at 1088. Nor has
the government identified any other hearsay exception under
which the statements might be admitted. Accordingly,
neither the biographical statements by aliens recorded by the
Border Patrol agents, nor the aliens’ own admissions, qualify
16 UNITED STATES V . MORALES
under an exception to the rule against hearsay. The district
court abused its discretion in admitting both statements.5
C
The government argues that even if the district court erred
in admitting all or part of the Field 826s, any error was
harmless and did not substantially affect the verdict, because
even without those documents there was sufficient evidence
to demonstrate that the individuals in question were aliens
who had unlawfully entered the United States.
The most important evidence at trial regarding the
alienage of the individuals found in Morales’s truck was
Agent Wycoff’s testimony that he had accessed and
conducted research in three government databases, and that
based on that research, he determined that the three aliens had
no documentation allowing them to be present in the United
States. Testimony to prove the absence of a public record is
generally admissible under Federal Rule of Evidence 803(10).
See United States v. Diaz-Lopez, 625 F.3d 1198, 1200 (9th
5
W e reject, however, Morales’s argument that the Field 826s were
improperly authenticated. To authenticate a document, a testifying
witness need only show “personal knowledge that a document was part of
an official file,” United States v. Estrada-Eliverio, 583 F.3d 669, 673 (9th
Cir. 2009) (citing Fed. R. Evid. 901), and need only make “a prima facie
showing of authenticity so that a reasonable jury could find in favor of
authenticity or identification.” Id. (internal quotation marks and citation
omitted); see also Fed. R. Evid. 901(b)(7). Here, Agent W ycoff testified
that the Field 826s were “kept in the actual A-file for each person who has
contact with immigration,” and that a physical copy of the document is
sent to the physical A-file as part of the normal course of business. This
testimony would support a reasonable inference that the Field 826s were
accurate copies of documents from the aliens’ A-files, which were
recorded and filed in a public office as required by law. See id.
UNITED STATES V . MORALES 17
Cir. 2010) (admitting Border Patrol agent’s testimony that he
had conducted a search of the agency’s databases and found
no evidence that the alien had applied for permission to enter
the United States). Further, we agree with the district court’s
conclusion that the foundation for admission of this testimony
was adequate. Agent Wycoff described the government’s
recordkeeping practices, his own training in the use of the
databases, and how his duties as case agent involved the
databases. He verified that he personally checked the
databases and printed out records of his findings, and that he
determined that the three aliens in question were without
authorization to be in the United States on the basis of his
research. We conclude that this testimony was sufficient to
establish a foundation for his conclusion that the aliens were
in the United States unlawfully. See id. (holding that the
government may establish a foundation for testimony for the
absence of a record in a database through testimony that the
agent conducting the search was “familiar with both the
process of searching the records and the government’s
recordkeeping practices with regard to the database.”).
In addition to Agent Wycoff’s testimony, the government
introduced substantial circumstantial evidence tending to
show that the individuals were aliens in the United States in
violation of law. This evidence included Agent Brewer’s
testimony that he determined the aliens “were not legal
citizens,” Officer Kroeger’s testimony about the location and
manner in which he found the aliens, Jakaub’s testimony
about picking up the aliens in a trailer by the highway, the
fact that the aliens in question had encountered immigration
officials and were given Field 826s, and the fact that each of
the aliens had an A-file. We conclude that this evidence,
coupled with Agent Wycoff’s testimony that the aliens lacked
legal permission to be in the United States, demonstrates
18 UNITED STATES V . MORALES
beyond a reasonable doubt that the aliens were in the United
States illegally. Accordingly, the district court’s error in
admitting the aliens’ statements within the Field 826s did not
substantially affect the verdict and was therefore harmless.
AFFIRMED.