United States v. Fuentes-Lopez

United States Court of Appeals
For the First Circuit
No. 20-1188
UNITED STATES OF AMERICA,
Appellee,
v.
NELSON ALEXANDER FUENTES-LOPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph Laplante, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Christine DeMaso, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney, was on brief, for
appellee.
April 12, 2021
SELYA, Circuit Judge. Defendant-appellant Nelson
Alexander Fuentes-Lopez was convicted, after a jury trial, on a
charge of unlawful reentry into the United States. See 8 U.S.C.
§ 1326(a). On appeal, he mounts two claims of error. Both claims
draw a bead on the government's introduction into evidence, under
the aegis of Federal Rule of Evidence 803(8), of a particular
document — a so-called I-296 form. His first claim of error posits
that the document failed to satisfy the "trustworthiness"
requirement of the rule. His second claim of error posits that
the document, even if duly admitted, was insufficient to prove the
"previously removed" element of the statute of conviction, see id.§ 1326(a)(1), so his motion for judgment of acquittal should have
been granted. Concluding, as we do, that both claims of error are
wide of the mark, we affirm.
I. BACKGROUND
We briefly rehearse the relevant facts. On May 13, 2019,
the appellant was a passenger in a car stopped by a New Hampshire
state trooper. None of the three men in the car had a driver's
license, but all of them carried Guatemalan identification cards.
The trooper proceeded to call Immigration and Customs Enforcement
(ICE) and transported all of the men to a nearby police station.
Federal authorities thereafter charged the appellant with illegal
reentry into the United States — a crime committed when an alien,
after having been deported, is then found in the United States
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without permission. See id. § 1326(a); see also United States v.
García, 452 F.3d 36, 43 (1st Cir. 2006).
The appellant maintained his innocence and, at trial,
the government sought to introduce into evidence, under the public
records exception to the hearsay rule, an I-296 form purportedly
signed by the appellant. See Fed. R. Evid. 803(8). The government
presented a number of witnesses in an effort to show that the
I-296 form satisfied the admissibility requirements of Rule
803(8). We summarize the relevant aspects of that testimony.
Outside the presence of the jury, an immigration
officer, Ivan Gonzalez, explained the significance of the I-296
form. Specifically, Gonzalez testified that the form has two
purposes: to notify the alien that he is being ordered removed
from the United States and to verify the alien's removal. The
form itself makes it apparent that the top half notifies the alien
of the order for his removal and the bottom half verifies the
removal itself. Gonzalez also testified that the signature of the
ICE officer on the bottom half of the form indicates that the
officer verified the alien's removal.1
In front of the jury, the government presented the
testimony of David Sanchez, a Customs and Border Protection (CBP)
1 In this instance, the bottom half of the I-296 form was
signed by Agent Sotero Cepeda. It is undisputed that, at the time
of trial, Cepeda was in a coma and unavailable to appear as a
witness.
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agent, whose job responsibilities included completing paperwork
for aliens about to be deported. He testified that he routinely
completes the top half of I-296 forms and that he completed and
signed the top half of the appellant's I-296 form. He further
testified that the appellant's I-296 form bore an "A-File number"
— an individualized file number that the government assigns to an
alien at the beginning of the removal process.
Another witness, Michael Joseph Spaniol, worked as a
records and information management specialist for the United
States Citizenship and Immigration Services. Elaborating on the
meaning of the A-File number, Spaniol testified that such a file
is meant to record all of an alien's interactions with certain
government organizations, including ICE, CBP, and the
investigative arm of the Department of Homeland Security. As the
records custodian, he reviewed the appellant's I-296 form and
certified that it was in the appellant's A-File.2
When the government sought to admit the appellant's
I-296 form into evidence, he objected. The appellant argued that
the form was untrustworthy because the "individual who created
this document" — a reference to Agent Cepeda, see supra note 1 —
"has some issues with credibility and dishonesty." The district
2Outside the jury's presence, Spaniol testified that I-296
forms are included in A-File records in the regular course of
business.
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court overruled the objection, holding that the government had
satisfied the requirements of the public records exception.
At the close of all the evidence, the appellant moved
for judgment of acquittal. See Fed. R. Crim. P. 29(a). The
district court reserved decision on this motion. After the jury
returned a guilty verdict, the district court denied the
appellant's Rule 29 motion and sentenced him to time served. This
timely appeal followed.
II. ANALYSIS
As said, the appellant advances two claims of error. We
address them sequentially.
A. Admissibility of the Evidence.
Rule 803(8) delineates an exception to the bar on hearsay
evidence for:
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
(iii) in a civil case or against the
government in a criminal case, factual
findings from a legally authorized
investigation; and (B) the opponent does not
show that the source of information or other
circumstances indicate a lack of
trustworthiness.
Fed. R. Evid. 803(8). In this venue, the appellant challenges the
admission of the I-296 form on the ground that he made the
requisite showing of a lack of trustworthiness.
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Our standard of review is familiar. When a claim of
error is properly preserved in the district court, we review a
district court's admission or exclusion of evidence for abuse of
discretion. See United States v. Rodríguez-Vélez, 597 F.3d 32, 40
(1st Cir. 2010). Under this standard, "we may overturn a
challenged evidentiary ruling only if it plainly appears that the
court committed an error of law or a clear mistake of judgment."
Daumont-Colón v. Cooperativa de Ahorro y Crédito de Caguas, 982
F.3d 20, 27 (1st Cir. 2020) (quoting Torres-Arroyo v. Rullán, 436
F.3d 1, 7 (1st Cir. 2006)). Unpreserved claims of error are
reviewed only for plain error. See United States v. Gordon, 875
F.3d 26, 30 (1st Cir. 2017).
The main thrust of the appellant's argument is that Agent
Cepeda (the agent whose signature verified the appellant's
removal) should be regarded as untrustworthy. In support, the
appellant notes that Cepeda was charged, in 2001, with the crimes
of forgery and theft. Given that the appellant raised this
objection below, we review the district court's overruling of it
for abuse of discretion.
The appellant does not argue that Cepeda was convicted
of forgery, theft, or any other crime — only that he was charged
with forgery and theft. But those charges, he concedes, were
either rejected by the prosecutor or dismissed. That fact is of
great consequence: merely showing that Cepeda was arrested and
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charged is not sufficiently probative of untrustworthiness as to
warrant disregard of a record verified by Cepeda. As the Supreme
Court has stated, "[a]rrest without more does not, in law any more
than in reason, impeach the integrity or impair the credibility of
a witness. It happens to the innocent as well as the guilty."
Michelson v. United States, 335 U.S. 469, 482 (1948); see Cheek v.
Bates, 615 F.2d 559, 563 (1st Cir. 1980) (explaining that "mere
arrest without a conviction would be clearly inadmissible to show
general lack of credibility"). It follows that the district
court's rejection of the appellant's argument was well within the
compass of its discretion.
The appellant has a fallback position. He argues for
the first time on appeal that the I-296 form was untrustworthy
because the government failed to show what procedures Cepeda
normally followed when completing such forms and whether Cepeda
followed his modus operandi with respect to the appellant's I-296
form. Because this objection was not raised below, our review is
for plain error. See Gordon, 875 F.3d at 30.
As we have noted, "[t]he plain error hurdle is high."
United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989).
"To prevail on plain error review, the defendant must show:
'(1) that an error occurred (2) which was clear or obvious and
which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
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reputation of judicial proceedings.'" Gordon, 875 F.3d at 30
(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Moreover, the party claiming plain error must carry the devoir of
persuasion on all four elements of the standard. See id.Here, the appellant's claim of error stumbles over the
first two steps of the plain error formulation (which we treat in
tandem). The appellant frames this claim of error solely as a
claim directed to Rule 803(8)'s trustworthiness requirement; he
does not contend that the form failed to satisfy any of the other
requirements of Rule 803(8). Like the district court, we therefore
take the form to be a public record — a status that endows it with
presumptive reliability. See Fed. R. Evid. 803(8) advisory
committee's note to 2014 amendment (explaining that "[p]ublic
records have justifiably carried a presumption of reliability").
So, too, because the appellant does not gainsay that the I-296
form satisfies the other requirements of the exception, that is,
that it is a public record prepared by a public office, which sets
out information as specified in the rule, the burden shifts to the
appellant "to show that the source of information or other
circumstances indicate a lack of trustworthiness." Fed. R. Evid.
803(8)(B); see Robbins v. Whelan, 653 F.2d 47, 50-51 (1st Cir.
1981).
The appellant has not carried this burden. His argument
boils down to a plaint that the district court lacked adequate
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information about the procedures surrounding the creation of the
I-296 form. But this plaint puts the burden in the wrong place.
Rule 803(8) is a pathway to admissibility, anchored in the concept
that public officials will perform their responsibilities
appropriately. See Fed. R. Evid. 803(8) advisory committee's note
to 1972 proposed rules (explaining that part of the
"[j]ustification for the exception is the assumption that a public
official will perform his duty properly"); Zeus Enters., Inc. v.
Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir. 1999). The
party challenging the admissibility of a public record that is
relevant and that conforms to the requirements of Rule 803(8)(A)
can challenge its admission only by making an affirmative showing
that the record is untrustworthy under Rule 803(8)(B). See United
States v. Versaint, 849 F.2d 827, 832 (3d Cir. 1988). Under this
standard, a paucity of evidence concerning the extent to which
creating the form was a routine procedure cannot, by itself,
constitute such an affirmative showing. See Crawford v. ITW Food
Equip. Grp., LLC, 977 F.3d 1331, 1348-49 (11th Cir. 2020). In
other words, to show untrustworthiness, the appellant cannot
simply identify a lack of proof regarding the circumstances
surrounding the creation of the form but, rather, must show that
something specific, resulting from those circumstances, adversely
affected the trustworthiness of the form. See Zeus Enters., Inc.,
190 F.3d at 241; Versaint, 849 F.2d at 832.
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This holding effectuates the core purpose of Rule
803(8). If we were to find that, even absent any tangible indicia
of unreliability, a mere lack of evidence about the procedures
leading to the creation of a public record rendered the record
untrustworthy under Rule 803(8)(B), we would eviscerate the
presumptive reliability traditionally accorded to public records
under Rule 803(8)(A). Moreover, we do not agree that the record
in this case reflects a paucity of information about the normal
procedures that surround an I-296 form: Ivan Gonzalez's testimony
went to the selfsame topic. Given his failure to make an
affirmative showing of untrustworthiness, we conclude that the
appellant has failed to demonstrate that the district court
committed error — much less plain error — in admitting the I-296
form into evidence.
B. Sufficiency of the Evidence.
This brings us to the appellant's assertion that his
motion for judgment of acquittal should have been granted for lack
of sufficient evidence. His challenge rests on a claim that the
government failed to prove an element of the offense, namely, that
he had previously been removed from the United States. See 8
U.S.C. § 1326(a)(1).
We review the sufficiency of the evidence de novo. See
United States v. Sabean, 885 F.3d 27, 46 (1st Cir. 2018). In that
process, we take the evidence in the light most favorable to the
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government, draw all reasonable inferences to its behoof, and ask
whether a rational jury could find that the government proved all
the elements of the offense beyond a reasonable doubt. See id."To uphold a conviction, the court need not believe that no verdict
other than a guilty verdict could sensibly be reached, but must
only satisfy itself that the guilty verdict finds support in a
plausible rendition of the record." Id. (internal quotation marks
omitted) (quoting United States v. Williams, 717 F.3d 35, 38 (1st
Cir. 2013)).
At trial, the government introduced the appellant's
I-296 form to prove his prior removal. The bottom half of this
form is headed "Verification of Removal" in bold font. This
portion of the form also contains a photograph of the appellant,
his signature, and his fingerprint. Similarly, the signature of
the verifying officer (Agent Cepeda) appears as part of the
Verification of Removal, immediately below what is listed as the
appellant's date of departure, port of departure, and manner of
departure.
Because the district court acted within its discretion
in admitting this form into evidence as a public record under Rule
803(8), see supra Part II(A), the form serves as proof of the truth
of the matters that it asserts. See United States v. Phoeun Lang,
672 F.3d 17, 23 (1st Cir. 2012); Yongo v. INS, 355 F.3d 27, 31
(1st Cir. 2004). The form, fairly read, asserts that the appellant
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was removed from the United States on a particular date (July 18,
2014), from a particular place (Brownsville, Texas), and in a
particular manner (by airplane). Seen in this light, the
government's proof of the "previously removed" element of the
offense was sufficient to ground the conviction.
In an effort to blunt the force of this reasoning, the
appellant argues that the government never adduced evidence to
explain what Agent Cepeda was actually verifying. But as we
already have noted, the bottom half of the form is entitled
"Verification of Removal" and lists the date of departure, port of
departure, and manner of departure. It also contains the
appellant's photograph, signature, and fingerprint. In addition,
the top half of the form is entitled "Notice to Alien Ordered
Removed/Departure Verification" and lists the appellant's A-File
number.
Criminal juries are permitted to draw reasonable,
commonsense inferences from the facts in evidence. See United
States v. Acosta-Colón, 741 F.3d 179, 197-98 (1st Cir. 2013);
United States v. Echeverri, 982 F.2d 675, 679 (1st Cir. 1993).
From the facts described above, it is a reasonable, commonsense
inference that what the bottom half of the I-296 form was verifying
was the appellant's removal from the United States on July 18,
2014. No more was exigible to prove the "previously removed"
element of the offense of conviction.
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The appellant resists this conclusion. He says that it
requires "impermissible inference stacking." United States v.
Guzman-Ortiz, 975 F.3d 43, 55 (1st Cir. 2020) (refusing to credit
stacked inferences when reviewing district court's disposition of
motion for judgment of acquittal). Specifically, he identifies
four examples of what he calumnizes as "inference-stacking." We
address each example in turn.
First, the appellant claims that the government's
argument requires the added inference that the I-296 form is a
normal incident of the removal process. That claim is simply
wrong: the I-296 form is proof of the matters that it asserts,
whether or not the form is a normal incident of the removal
process. See García, 452 F.3d at 41-42 (accepting warrant of
deportation as evidence of removal without regard to whether it
formed a normal part of the removal process).
Second, the appellant claims that the government's
argument requires the added inference that Agent Cepeda's
signature indicates that he personally witnessed the appellant's
deportation. This claim fails because the government had no
obligation to adduce eye-witness evidence in order to prove prior
removal. See United States v. Floyd, 740 F.3d 22, 28 (1st Cir.
2014) (explaining that "circumstantial evidence alone" may be
sufficient to support criminal conviction). In addition, the claim
also fails as a back-door attempt to reject the district court's
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unchallenged Rule 803(A)(ii) finding that the document "set[] out
. . . a matter observed" by a public official.
Third, the appellant claims that the government's
argument requires the added inference that words on the form have
particular meanings. But words mean what they mean in particular
contexts, and no additional inference is required to give a word
its reasonable, commonsense meaning. See United States v. Ridolfi,
768 F.3d 57, 61 (1st Cir. 2014) (stating that jury may properly
reach guilty verdict by drawing "reasonable, common sense
inferences" from the evidence). Were the law otherwise, even the
most straightforward of inferences — say, an inference that a
defendant who cried "Die!" when he pointed his gun at the
complainant intended to kill the complainant — would run afoul of
the prohibition against inference-stacking.
Fourth, and finally, the appellant claims that the
government's argument requires the added inference that the person
signing the form (here, Agent Cepeda) followed regular procedures
(including procedures obliging him to verify that the appellant
was removed). This claim, if upheld, would sap the strength of
the public records exception to the hearsay bar. Moreover, it
flies in the teeth of García, in which we held that a warrant of
deportation was evidence of removal without regard to the absence
of any evidence that the officer signing the warrant had followed
regular procedure. 452 F.3d at 43-44.
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That ends this aspect of the matter. We hold that —
taking the evidence in the light most favorable to the government
and drawing all reasonable inferences in its favor — the record
adequately supports a finding that the appellant was previously
removed. It follows that the district court did not err in denying
the appellant's motion for judgment of acquittal.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment is
Affirmed.
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