United States v. Miguel Torralba-Mendia , 784 F.3d 652 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10064
Plaintiff-Appellee,
D.C. No.
v. 4:10-cr-00754-
CKJ-JR-13
MIGUEL TORRALBA-MENDIA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
February 2, 2015—San Francisco, California
Filed April 28, 2015
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Stephen Joseph Murphy III, District
Judge.*
Opinion by Judge Murphy
*
The Honorable Stephen Joseph Murphy III, District Judge for the U.S.
District Court for the Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. TORRALBA-MENDIA
SUMMARY**
Criminal Law
The panel affirmed a conviction for conspiring to smuggle
undocumented immigrants into the United States, in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I).
The panel held that, in light of United States v. Vera, 770
F.3d 1232 (9th Cir. 2014), the district court committed plain
error by not instructing the jury on how to properly evaluate
the testimony of ICE Agent Frazier, whom the government
used as both an expert and lay witness. The panel found that
the error was not prejudicial because the government
bifurcated Frazier’s expert and lay opinion testimony, there
was an adequate foundation for his observations, and
sufficient evidence independent of his testimony linked the
defendant to the conspiracy.
The panel held that the district court did not abuse its
discretion in admitting ICE Agent Burrola’s expert testimony
about alien smuggling organizations. The panel held that the
testimony helped the jury understand the defendant’s role in
the alien smuggling scheme, and that the testimony was not
unduly prejudicial.
The panel held that a rational juror could find beyond a
reasonable doubt that the defendant joined the conspiracy
with the intent to further it.
**
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. TORRALBA-MENDIA 3
The panel rejected the defendant’s arguments that I-213
immigration forms, which the government introduced to show
that many of the passengers detained during the investigation
were in fact deported, contained inadmissible hearsay and
that their introduction violated the Confrontation Clause. The
panel held that the redacted forms were admissible under Fed.
R. Evid. 803(8) as ministerial records, kept in the regular
course of Department of Homeland Security business, and not
implicating the purposes animating the law enforcement
exception to admissibility. The panel held that admission of
the forms did not violate the defendant’s confrontation rights
because nothing in them suggests they were completed in
anticipation of litigation, and they are not testimonial.
COUNSEL
Saji Vettiyil, Vettiyil & Associates, Nogales, Arizona, for
Defendant-Appellant.
John S. Leonardo, United States Attorney, Robert L. Miskell,
Appellate Chief, Bruce M. Ferg (argued), Assistant United
States Attorney, United States Attorney’s Office, Tucson,
Arizona, for Plaintiff-Appellee.
4 UNITED STATES V. TORRALBA-MENDIA
OPINION
MURPHY, District Judge:
A jury convicted Miguel Torralba-Mendia of conspiring
to smuggle undocumented immigrants into the United States,
in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). Torralba
appeals his conviction, contending there was insufficient
evidence connecting him to the conspiracy. In addition, he
argues the district court incorrectly allowed an expert witness
to testify about common practices of alien smuggling
organizations. He contends the district court erred in allowing
the case agent to offer both lay and expert testimony without
giving a curative instruction. And he argues the district court
incorrectly admitted redacted I-213 immigration forms. We
have jurisdiction under 28 U.S.C. § 1291, find no prejudicial
error, and affirm.
I
A
Between 2007 and 2010, Immigration and Customs
Enforcement (“ICE”) agents investigated a human smuggling
operation near Nogales, Arizona. The investigation revealed
that members of the smuggling organization would meet
migrants on the Mexican side of the border. Escorts would
guide the migrants through the ravines and creek-beds that lie
adjacent to Nogales. Once inside the United States, a van or
sedan would meet the migrants in the desert and drive them
to Geuro Shuttle (“GS”), a company operating out of Tucson.
From there, shuttles would drive the migrants to safe houses
where they were confined until family members paid for their
release.
UNITED STATES V. TORRALBA-MENDIA 5
During the investigation, agents observed Torralba at GS
between twenty and twenty-five times. Through intercepted
phone calls, agents overheard Torralba coordinate the pick up
of migrants and organize their drive north. Agents listened as
a person at GS told Torralba to charge $2100 to drive two
people to Tucson. And agents observed Torralba pick up and
deliver suspected illegal immigrants to locations in Phoenix.
On one occasion, Torralba picked up several people from
GS. Before starting the drive to Phoenix, Torralba did a “heat
run” through a local neighborhood: He rapidly accelerated
and decelerated, to check if police were following him. He
then parked outside a carwash for ten minutes, watching the
road. On another occasion, he drove past an unmarked police
car with tinted windows parked across from GS. Torralba
stopped his car next to the vehicle and tried to look in. He
then called GS and told them about the car. Torralba also
called GS to tell them that “[t]hey just opened up over here,
straight ahead.” GS then notified other shuttle drivers that
ICE was not operating its checkpoint along the route from
Nogales to Tucson.
B
At trial, the government called Agent Burrola as an expert
witness. Burrola has more than a decade of law enforcement
experience along the border, including three years undercover
smuggling undocumented immigrants from Nogales to stash
houses in Tucson and Phoenix. He testified about the standard
practices of alien smuggling organizations, including how
they escorted people over the border, circumvented ICE
checkpoints, and utilized safe houses. He explained how to
identify undocumented immigrants en route from Mexico,
6 UNITED STATES V. TORRALBA-MENDIA
interpreted common code words, and described typical
methods and amounts of payment.
The government also called Agent Frazier as both an
expert and lay witness. Frazier spent nine years patrolling the
border near Nogales. Like Burrola, he explained how
smugglers evaded checkpoints and provided ways to
distinguish between a guide and a migrant.
After giving expert testimony about the standard practices
of alien smuggling organizations, Frazier began to offer lay
testimony. The government transitioned from expert to lay
testimony by asking, “[a]nd were you eventually assigned to
an investigation involving Southern Arizona shuttle
companies?” Frazier then testified intermittently over the
next few days about his observations in this case. He narrated
surveillance videos showing vehicles dropping off and
picking up people from GS. He told the jury the duration of
time lapses in the videos, pointed out the vehicles’ identifying
marks, tied the cars to various conspirators, and counted the
number of people exiting and entering different vehicles. He
also interpreted phrases in phone calls between shuttle drivers
and GS. And he explained which conspirators he thought
were the organization’s leaders based on evidence that they
controlled the migrants, recruited workers, and gave orders to
the drivers.
During the trial, the government introduced I-213
immigration forms to prove the migrants detained during the
investigation either voluntarily returned to their country of
origin or were deported. The admitted forms contained the
migrants’ photos, fingerprints, physical characteristics, and
whether they had been deported or voluntarily returned to
their country of origin. The government redacted the agent’s
UNITED STATES V. TORRALBA-MENDIA 7
narrative detailing how people were apprehended, and all
other statements made by the detainee.
II
Torralba challenges the government’s use of Agent
Frazier as both an expert and lay witness. He contends the
district court erred by not instructing the jury on how to
evaluate Frazier’s dual role testimony, and that much of
Frazier’s testimony invaded the province of the jury. We hold
that, in light of our opinion in United States v. Vera, 770 F.3d
1232 (9th Cir. 2014), the district court committed plain error
by not instructing the jury on how to properly evaluate
Frazier’s testimony. Nonetheless, we find that the error was
not prejudicial because the government bifurcated Frazier’s
expert and lay opinion testimony, there was an adequate
foundation for Frazier’s observations, and sufficient evidence
independent of Frazier’s testimony linked Torralba to the
conspiracy.
A
Torralba argues the district court erred by not instructing
the jury on how to properly evaluate Agent Frazier’s expert
and lay testimony. Because Torralba did not object to the
absence of such a jury instruction, we review for plain error.
See United States v. Fuchs, 218 F.3d 957, 961 (9th Cir.
2000); see also Puckett v. United States, 556 U.S. 129, 135
(2009) (citing Fed. R. Crim. P. 51(b) & 52(b)).
We have cautioned district courts about the dangers of
allowing a case agent to offer both expert and lay opinion
testimony. See Vera, 770 F.3d at 1242; United States v.
Anchrum, 590 F.3d 795, 803 (9th Cir. 2009); United States v.
8 UNITED STATES V. TORRALBA-MENDIA
Freeman, 498 F.3d 893, 903–04 (9th Cir. 2007). “[A]n
agent’s status as an expert could lend him unmerited
credibility when testifying as a percipient witness, cross-
examination might be inhibited, jurors could be confused and
the agent might be more likely to stray from reliable
methodology and rely on hearsay.” Vera, 770 F.3d at 1242.
There are several ways to mitigate these concerns. First,
the district court should clearly separate the case agent’s
testimony between lay observations and expert testimony. See
Anchrum, 590 F.3d at 803. Second, the district court should
require an adequately specific foundation, so that the jury has
the information needed to evaluate the case agent’s
testimony. See Vera, 770 F.3d at 1243. Third, “the jury must
be instructed about what the attendant circumstances are in
allowing a government case agent to testify as an expert.” Id.
at 1242 (internal quotation marks omitted). Finally, the court
should not allow an officer to “testify based on speculation,
rely on hearsay, or interpret unambiguous, clear statements.”
Id.
In Vera, we held that “[i]n light of our Circuit’s clearly
expressed concerns about case agents testifying in both lay
and expert capacities, the district court’s failure to give an
instruction explaining [the agent’s] dual roles was plain
error.” Id. at 1246. We emphasized that, although the defense
had not objected to the jury instructions, “the ultimate
responsibility for assuring the reliability of expert testimony
and for instructing the jury on how to evaluate case agent
dual role testimony rests with the district court.” Id. at 1243.
In the present case, the district court offered to instruct the
jury on how to properly evaluate expert and lay testimony.
The government also stated it had an instruction that would
UNITED STATES V. TORRALBA-MENDIA 9
help the jury evaluate Frazier’s dual role testimony. Torralba
objected to the government’s proposed instruction, however,
and failed to offer an instruction of his own. The district court
instructed the jury on how to evaluate opinion testimony
generally, but did not include any instruction on
differentiating between lay and expert testimony. Torralba did
not object to the instructions read to the jury.
We hold the district court committed plain error by not
instructing the jury on how to evaluate dual role testimony.
While there is a small degree of invited error—the district
court solicited Torralba to offer an instruction about dual role
testimony—our cases make clear that the trial court is
ultimately responsible for ensuring the jury understands how
to evaluate dual role testimony. Vera, 770 F.3d at 1243.
Accordingly, the district court committed plain error by not
giving a curative instruction, though the error was not
prejudicial for the reasons stated in section C.
B
Torralba also argues the district court erred in allowing
Frazier to narrate videos, interpret phrases in recorded phone
calls, and opine about the role of various conspirators. With
a few exceptions, Torralba did not object to Frazier’s
testimony. We review objected to evidentiary rulings for
abuse of discretion, and unobjected to evidentiary issues for
plain error. United States v. Banks, 514 F.3d 959, 975–76 (9th
Cir. 2008). For the following reasons, we find Frazier offered
proper lay testimony and did not invade the province of the
jury.
First, we have previously held that an officer who has
extensively reviewed a video may offer a narration, pointing
10 UNITED STATES V. TORRALBA-MENDIA
out particulars that a casual observer might not see. In United
States v. Begay, 42 F.3d 486, 502–03 (9th Cir. 1994), an
officer narrated a video of a riot. We held the narrative was
proper lay testimony. The officer had personal knowledge of
the events in the video because he had watched the video
nearly a hundred times. And his narration was helpful
because he pointed out details a casual observer was likely to
miss. Thus, the officer’s “testimony concerning which
persons were engaged in what conduct at any given moment
could help the jury discern correctly and efficiently the events
depicted in the video.” Id. at 503.
Torralba did not object when Frazier narrated videos
showing cars arriving and departing from GS. Frazier
testified that he had watched each video roughly fifty times,
and that he would often watch the video feed live while it was
being recorded. The narratives helped the jury understand
what they were seeing. For example, Frazier provided the
length of time lapses between video clips. He pointed out
unique characteristics of the vehicles—like their makes,
models, and whether any bodywork had been done to
them—that helped the jury identify the same cars in
subsequent videos. He linked the different cars to specific
conspirators. He counted the number of passengers exiting or
entering the vehicles (a difficult task because the video’s
angle obscured the view). And he pointed out the particular
clothing of certain passengers, to show that a person dropped
off in one video was the same person picked up in a later
video. Frazier’s narratives were based on his repeated
viewing of the recordings, and helped the jury understand the
import of the videos.
Second, we have held that an officer may give lay
testimony about the meaning of ambiguous phrases in
UNITED STATES V. TORRALBA-MENDIA 11
recorded calls. The interpretations must be based on the
officer’s observations in the case, should not rely on hearsay,
and must be helpful; i.e., the officer should not interpret clear
language. Freeman, 498 F.3d at 902, 904–05. For example,
in Freeman, we found an officer properly interpreted “‘[m]an,
it’s done already’ to mean ‘he’s given the cocaine to Kevin
Freeman and that he’s received money for it.’” Id. at 902.
That testimony was based on the witness’ personal
knowledge of the investigation and was helpful to the jury.
To the contrary, in Vera we explained that a case agent
improperly interpreted the demand that a supplier “‘lower the
price for you, fool, because tell her that it is a little expensive,
fool,’ as meaning that ‘whatever she is selling it for, Mr. Vera
probably feels it’s a little more expensive than what he wants
to pay for it, so he’s trying to negotiate, maybe get the price
lowered.’” Vera, 770 F.3d at 1246 n.9. The testimony merely
restated the obvious, and was not helpful.
Here, Frazier interpreted multiple recorded phrases.
Torralba objected to only two of the interpretations. He
objected when Frazier stated the word “radio” referred to a
Nextel push-talk phone, arguing the meaning of “radio” was
obvious and not helpful to the jury. The government argued
that Frazier’s interpretation was based on his listening to
thousands of recorded phone calls, and the explanation helped
the jury put the calls in context. Even if the interpretation was
not proper lay testimony—it is unclear why the distinction
between a traditional radio and a Nextel push-talk phone is
relevant—its admission was harmless for the reasons stated
below.
Torralba also objected when the government asked
Frazier to interpret Torralba’s statement that “it’s open
straight ahead.” At a bench conference, the government stated
12 UNITED STATES V. TORRALBA-MENDIA
it expected Frazier to testify that the phrase meant ICE was
not operating its checkpoint. After the testimony resumed,
Frazier stated it was common for smugglers to tell each other
when ICE was not operating the checkpoint. But he did not
interpret the phrase “it’s open straight ahead,” and therefore
no error occurred.
Torralba did not object when Frazier interpreted phrases
in other recorded phone calls. For example, Frazier stated the
words “in the fight” meant the smugglers were trying to guide
the migrants around an ICE checkpoint. In support, he
explained that he heard that phrase in many phone
conversations when the smugglers were transporting people
from Nogales to Tucson. According to Frazier, the region
south of Tucson contained “a particularly heavy
concentration of United States Border Patrol Agents.” The
district court did not commit plain error in admitting this, and
similar, unobjected to testimony: Frazier interpreted arguably
ambiguous phrases based on his extensive review of the
recorded phone calls, and he consistently explained his
reasoning.
Finally, Torralba argues Frazier invaded the province of
the jury when he opined that Chapo Casino, Geuro Pesado,
and Alfredo Olea—three men frequently overheard talking on
the phone and meeting at GS—led the alien smuggling
organization. Torralba objected to this portion of Frazier’s
testimony at trial. A lay witness may opine about a person’s
role in an organization when the opinion is based on his own
perceptions, is helpful to the jury, and does not require
specialized knowledge. See Fed. R. Evid. 701; United States
v. Figueroa-Lopez, 125 F.3d 1241, 1245–46 (9th Cir. 1997)
(explaining that lay witnesses may testify about the
implication of an observation when the “observations are
UNITED STATES V. TORRALBA-MENDIA 13
common enough and require such a limited amount of
expertise, if any, that they can, indeed, be deemed lay witness
opinion”).
Frazier testified that Chapo Casino, Geuro Pesado, and
Alfredo Olea headed the alien smuggling organization. In
support, he pointed to phone conversations in which the men
tried to recruit shuttle operators. Furthermore, they referred
to the migrants as “mine” or “theirs,” and showed control
over the undocumented immigrants. They coordinated the
shuttles and gave orders to the drivers.
Frazier’s testimony was based entirely on his observations
in the case. He listened to hours of recorded phone calls,
during which he discerned the relationship between the
speakers. The phone calls that he based his inferences upon
were received as evidence. By knowing the relationship
between the speakers, the jury could better understand the
meaning and context of the calls. And Frazier’s opinion about
the members’ organizational roles was not based on
specialized knowledge or expertise in alien smuggling:
Managers in a wide variety of organizations recruit
employees, coordinate operations, and give orders to workers.
In short, Frazier offered appropriate lay testimony when
he narrated the videos, interpreted ambiguous phrases in
recorded phone calls, and stated he thought certain people led
the alien smuggling organization.
C
The district court committed plain error when it failed to
instruct the jury on how to evaluate Frazier’s dual role
testimony. We remedy a district court’s plain error only when
14 UNITED STATES V. TORRALBA-MENDIA
the defendant shows that the error affected his substantial
rights. Fed. R. Crim. P. 52(b); Puckett, 556 U.S. at 135. Put
differently, there “must be a reasonable probability that the
error affected the outcome of the trial.” United States v.
Marcus, 560 U.S. 258, 262 (2010).
In Vera, we held the court’s failure to instruct the jury on
how to evaluate an agent’s dual role testimony prejudiced the
defendants. We noted the agent’s opinion “comprised the sole
evidence” about the quantity of drugs at issue. 770 F.3d at
1246. The district court did not “require an adequately
specific foundation” for the agent’s opinions. Id. at 1243. And
the agent testified about the meaning of phone calls “well
within the understanding of an ordinary juror,” which “may
have encouraged the jury to defer to [the agent’s] opinions
instead of listening to the calls and reaching an independent
judgment.” Id. at 1246.
Here, Torralba has not shown the absence of a curative
instruction affected the outcome of the trial. First, the
government bifurcated Frazier’s testimony between his expert
testimony and percipient observations. Frazier’s testimony
began with his credentials in the field of alien smuggling, his
descriptions of how smugglers circumvented ICE
checkpoints, and the common characteristics of
undocumented immigrants en route from Mexico. After the
completion of his expert testimony, the government
transitioned to questions about the instant case, asking “[a]nd
were you eventually assigned to an investigation involving
Southern Arizona shuttle companies?” From that point
forward, Frazier testified about his observations during the
investigation of GS. When the government divided Frazier’s
“testimony into two separate phases it avoided blurring the
distinction between Agent [Frazier’s] distinct role as a lay
UNITED STATES V. TORRALBA-MENDIA 15
witness and his role as an expert witness.” United States v.
Anchrum, 590 F.3d 795, 804 (9th Cir. 2009).
Second, Frazier provided an adequate foundation for most
of his observations. Whether he was narrating videos,
interpreting phone calls, or opining on the role of various
conspirators, he consistently explained his reasoning. And the
evidence that he based his testimony on—videos, phone call
recordings, still frame photos—was all given to the jury.
Thus, the jury had the information it needed to evaluate
Frazier’s opinions.
Third, a substantial amount of evidence, aside from
Frazier’s testimony, connected Torralba to the conspiracy.
Videos captured him repeatedly picking up suspected illegal
immigrants from GS. Recorded phone conversations detailed
his efforts to retrieve groups from the desert, as well as the
amount of money he intended to charge. And his
actions—engaging in counter-surveillance, alerting GS to a
suspected police vehicle, and telling GS that ICE was not
operating its checkpoint—all support the verdict.
Accordingly, while the court committed plain error in not
giving a curative instruction, the error was not prejudicial and
does not require reversal.
III
Torralba next claims the district court erred in allowing
Agent Burrola to offer expert testimony about alien
smuggling organizations, arguing the testimony’s probative
value was greatly outweighed by unfair prejudice. See Fed. R.
Evid. 403. We review a district court’s decision to admit
expert testimony for abuse of discretion. See United States v.
Mejia-Luna, 562 F.3d 1215, 1218 (9th Cir. 2009).
16 UNITED STATES V. TORRALBA-MENDIA
We have previously held that government agents may
testify about the general practices of alien smuggling
organizations to establish their modus operandi. In Mejia-
Luna, we found the district court did not abuse its discretion
by admitting expert testimony about “how alien smuggling
operations typically operate, the division of responsibility
among numerous actors, the methods used, and the manner
and method of payment.” Id. at 1219. Similarly, in United
States v. Lopez-Martinez, we held the district court did not
commit plain error by allowing a government agent to testify
“about patterns and methods common among smugglers” in
the local area. 543 F.3d 509, 514–15 (9th Cir. 2008). We have
also found that expert witnesses may testify about the
meaning of code words or specialized jargon. See United
States v. Vera, 770 F.3d 1232, 1241 (9th Cir. 2014).
In the present case, Burrola testified about how alien
smuggling organizations guide people across the border,
evade ICE checkpoints and patrols, and employ safe houses.
He pointed out common characteristics of undocumented
immigrants en route from Mexico: They were often dirty due
to spending several days and nights walking through the
wilderness, carried little luggage, and were controlled by
guides. He also interpreted common code words or jargon,
and described the amounts and methods of payment.
Burrola’s testimony helped the jury understand Torralba’s
role in the alien smuggling scheme. Based on the common
characteristics of migrants en route from Mexico, a jury could
determine Torralba knew many of his passengers were not
legitimate travelers. Burrola’s testimony about the typical
smuggling rate is consistent with the amount Torralba stated
he would collect to drive two people to Tucson. And
Burrola’s statements about how guides escort people across
UNITED STATES V. TORRALBA-MENDIA 17
the border and around ICE checkpoints helped the jury
understand why Torralba coordinated the pick up of groups
from remote areas of the desert.
Furthermore, Torralba has not shown the testimony was
unduly prejudicial. The only Ninth Circuit precedent he cites
were non-conspiracy cases in which we found evidence about
the structure of a criminal organization was highly prejudicial
and not relevant. See United States v. Varela-Rivera,
279 F.3d 1174, 1179 (9th Cir. 2002) (“[E]xpert testimony on
the modus operandi of drug trafficking organizations is
inadmissible in cases where, as here, the defendant is not
charged with conspiracy to distribute drugs.”); United States
v. Pineda-Torres, 287 F.3d 860, 864 (9th Cir. 2002) (same);
United States v. Vallejo, 237 F.3d 1008, 1015–17 (9th Cir.
2001) (same). Here, by contrast, the government charged
Torralba with a conspiracy. Evidence about the smuggling
organization’s methods helped prove the existence of a
conspiracy and put Torralba’s actions in context.
Accordingly, the district court did not abuse its discretion in
admitting Burrola’s expert testimony.
IV
Torralba concedes the government proved an alien
smuggling organization was operating out of GS, but argues
there was no evidence he was aware of, or joined, any
conspiracy. “We review de novo the district court’s denial of
a motion for judgment of acquittal based on insufficient
evidence.” United States v. Mincoff, 574 F.3d 1186, 1191–92
(9th Cir. 2009) (citations omitted). When reviewing the
sufficiency of the evidence, we “view the evidence in the
light most favorable to the prosecution and determine whether
any rational trier of fact could have found the defendant
18 UNITED STATES V. TORRALBA-MENDIA
guilty of each element of the crime beyond a reasonable
doubt.” United States v. Heller, 551 F.3d 1108, 1113 (9th Cir.
2009).
Section 1324 provides criminal penalties for “[a]ny
person who . . . engages in any conspiracy to commit any of
the preceding acts.” 8 U.S.C. § 1324(a)(1)(A)(v). To establish
an alien smuggling conspiracy, the government must prove an
agreement to carry out one of the substantive offenses, and
that Torralba had the intent necessary to commit the
underlying offense. See United States v. Herrera-Gonzalez,
263 F.3d 1092, 1095 (9th Cir. 2001) (interpreting a similarly
worded drug conspiracy statute); see also United States v.
Shabani, 513 U.S. 10, 13 (1994) (holding conspiracies require
an overt act only when explicitly stated in the statute’s text).
It is undisputed that a conspiracy to smuggle
undocumented immigrants into the United States existed. The
only question is whether Torralba was part of the conspiracy
and whether he intended to further it. Once the government
has established the existence of a conspiracy, “evidence of
only a slight connection is necessary to support a conviction
of knowing participation in that conspiracy.” United States v.
Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir. 1991). A “slight
connection means that a defendant need not have known all
the conspirators, participated in the conspiracy from its
beginning, participated in all its enterprises, or known all its
details.” Herrera-Gonzalez, 263 F.3d at 1095. But it does
require more than a “[m]ere casual association with
conspiring people.” United States v. Estrada-Macias,
218 F.3d 1064, 1066 (9th Cir. 2000) (quoting United States
v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977)).
UNITED STATES V. TORRALBA-MENDIA 19
Ample evidence showed that Torralba joined the
conspiracy with the intent to further its objectives. For
example, in a recorded phone call, Torralba agreed to deliver
two people for $2100, an amount consistent with the rates
traffickers charge to smuggle people to Tucson. In other calls,
Torralba coordinated the pick up and delivery of migrants,
and videos showed him transporting suspected illegal
immigrants from GS on multiple occasions. Furthermore,
many of Torralba’s actions are inconsistent with being simply
an unsuspecting shuttle driver. He engaged in counter-
surveillance techniques to evade police, informed GS of an
unmarked police car watching the business, and called GS to
tell them the ICE checkpoint was not operating. Based on
these facts, a rational juror could find beyond a reasonable
doubt that Torralba joined the conspiracy with the intent to
further it.
V
The government introduced I-213 immigration forms,
which were labeled a “Record of Deportable/Inadmissible
Alien.” The government introduced the forms to show that
many of the passengers detained during the investigation
were, in fact, deported. Torralba argues that the forms
contained inadmissible hearsay and their introduction
violated the Confrontation Clause. We review the district
court’s rulings on the Confrontation Clause and its
construction of the hearsay rules de novo. United States v.
Morales, 720 F.3d 1194, 1199 (9th Cir. 2013). We review
decisions to admit evidence under a hearsay exception for
abuse of discretion. Id.20 UNITED STATES V. TORRALBA-MENDIA
A
Torralba first argues the forms are inadmissible hearsay.
Under Rule 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).
In United States v. Lopez we held the public records
exception applied to a “Verification of Removal.” 762 F.3d
852, 861 (9th Cir. 2014). The verification of removal
contained the date, port, and manner of the alien’s departure,
as well as the alien’s photograph, signature and fingerprint,
and an officer’s signature. Id. at 856. We reasoned the officer
had a legal duty to fill out the form, explaining that
“[r]ecording and maintaining verifications that an individual
has been deported falls under the rubric of responsibilities
assigned to the Department of Homeland Security; therefore,
completing the verification of removal form is appropriate to
the function of the agency.” Id. at 862. Furthermore, we
found the documents admissible notwithstanding the general
prohibition against admitting records created by law
enforcement. We reasoned the law enforcement prohibition’s
purpose was 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.” Id.
at 861 (quoting United States v. Hernandez-Rojas, 617 F.2d
533, 535 (9th Cir. 1980)). The verification of removal, by
contrast, was a “ministerial, objective observation” that
merely “records the movement of aliens across the United
States border,” and was therefore “inherent[ly] reliab[le]
because of the Government’s need to keep accurate records
UNITED STATES V. TORRALBA-MENDIA 21
of the movement of aliens.” Id. (internal quotation marks and
citations omitted); see also United States v. Loyola-
Dominguez, 125 F.3d 1315, 1317–18 (9th Cir. 1997) (finding
warrants of removal/deportation were admissible under public
records hearsay exception).
The same principles apply here. The admitted record of a
deportable alien contains the same information as a
verification of removal: The alien’s name, photograph,
fingerprints, as well as the date, port and method of departure,
and the officer’s signature. The government redacted all other
statements, including the officer’s narration explaining how
the alien was apprehended, and the alien’s statements
regarding his country of origin and address. Furthermore, the
record of a deportable alien, like a verification of removal, is
part of an alien’s A-File, filled out and kept by the
Department of Homeland Security in its regular course of
business. Finally, the admitted forms are a ministerial,
objective observation detailing how the aliens were
repatriated, and do not implicate the purposes animating the
law enforcement exception. Other circuits addressing this
issue have found I-213 forms admissible under Rule 803(8).
See United States v. Caraballo, 595 F.3d 1214, 1226 (11th
Cir. 2010); Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817
n.16 (5th Cir. 2003).
Torralba’s arguments to the contrary are unavailing. He
contends the Court must evaluate whether the aliens’
statements independently qualify for a hearsay exception. For
example, in Morales, we held an I-826 form containing
migrants’ statements about their country of origin and
admissions that they were in the United States illegally did
not fall within the public records exception. 720 F.3d at
1201–02. We explained that the aliens did not have a duty to
22 UNITED STATES V. TORRALBA-MENDIA
report their immigration status or their place of birth. Here,
by contrast, the government has thoroughly redacted the
forms. The I-213 forms do not contain any alien statements
about their country of origin, or any admission that they were
in the United States illegally. Accordingly, there is no need to
determine if the aliens’ statements qualify for a hearsay
exception, as no such statements were included in the forms.
B
Torralba also contends the admission of the I-213 forms
violated his confrontation rights. The Sixth Amendment
provides, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. “[T]he Confrontation Clause
bars admission of testimonial statements unless the declarant
is unavailable to testify and the defendant previously had an
opportunity to cross-examine the declarant.” United States v.
Albino-Loe, 747 F.3d 1206, 1210 (9th Cir. 2014). A statement
is within the “core class of testimonial statements” 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
v. Washington, 541 U.S. 36, 52 (2004)).
The Supreme Court has explained that public records are
normally non-testimonial because they are “created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial.” Id. at 324. We
have repeatedly held that immigration documents contained
in an alien’s A-file are non-testimonial because they are “not
made in anticipation of litigation, and because [they are]
simply a routine, objective cataloging of an unambiguous
UNITED STATES V. TORRALBA-MENDIA 23
factual matter.” Lopez, 762 F.3d at 860 (holding verification
of removal was non-testimonial); see also Albino-Loe,
747 F.3d at 1210–11 (holding notice to appear was non-
testimonial); Morales, 720 F.3d at 1200 (holding I-826 forms
were non-testimonial); United States v. Orozco-Acosta,
607 F.3d 1156, 1164 (9th Cir. 2010) (holding warrants of
removal were non-testimonial); United States v. Bahena-
Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (same).
The same principles apply here. Nothing in the I-213
forms suggest the documents were completed in anticipation
of litigation. Rather, the I-213 form “is routinely completed
by Customs and Border Patrol agents in the course of their
non-adversarial duties, not in the course of preparing for a
criminal prosecution.” Caraballo, 595 F.3d at 1226. As is
evident from the form itself, the record of a deportable alien
merely collects the alien’s biographical information, gives the
officer an opportunity to describe how the person was
apprehended (which the government redacted), and states
whether they were deported or voluntarily returned. Agents
complete I-213 forms regardless of whether the government
decides to prosecute anyone criminally. See id. at 1228(“[T]he I-213 form is routinely requested from every alien
entering the United States, and the form itself is filled out for
anyone entering the United States without proper immigration
papers.”). As with other evidence in an alien’s A-file, the
documents are prepared for administrative purposes, not as
evidence in a later trial. Accordingly, because the documents
are not testimonial, their admission did not run afoul of the
Confrontation Clause.
24 UNITED STATES V. TORRALBA-MENDIA
VI
There was no reversible error and we therefore affirm.
AFFIRMED.