United States v. Luis Ruiz-Lopez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10093
Plaintiff-Appellee,
D.C. No.
v. 5:11-cr-00749-LHK-1
LUIS RUIZ-LOPEZ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Argued and Submitted
March 12, 2014—San Francisco, California
Filed April 25, 2014
Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Gordon J. Quist, Senior District Judge.*
Opinion by Judge Gould
*
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
2 UNITED STATES V. RUIZ-LOPEZ
SUMMARY**
Criminal Law
The panel affirmed the district court’s denial of a motion
for judgment of acquittal in a case in which the defendant was
convicted of illegal reentry following deportation.
The panel held that the evidence presented was sufficient
to prove alienage beyond a reasonable doubt. The panel held
that so long as the documents in an A-file, including a Form
I-213, have been properly admitted, and the jury has been
instructed as to the “beyond a reasonable doubt” standard,
such documents may be considered by the jury and,
depending on their contents, may constitute sufficient proof
of alienage if the jury so concludes. Regarding the
defendant’s challenge to the reliability of the Form I-213 in
this case, the panel held that a rational trier of fact could
come to the conclusion that the Form I-213 accurately
captured the defendant’s interview with a DHS agent.
**
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. RUIZ-LOPEZ 3
COUNSEL
Karen L. Landau (argued), Oakland, California, for
Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney,
Melinda Haag, United States Attorney, Barbara J. Valliere,
Chief, Appellate Division, Department of Justice, San
Francisco, California, for Plaintiff-Appellee.
OPINION
GOULD, Circuit Judge:
Luis Ruiz-Lopez, convicted of illegal reentry following
deportation under 8 U.S.C. § 1326(a) and (b), seeks a
judgment of acquittal. He claims that the government did not
present evidence sufficient to prove his alienage beyond a
reasonable doubt. Because we conclude that sufficient
evidence supported the jury’s finding of alienage, we affirm
the district court’s denial of a judgment of acquittal.
I
In December 2002, Ruiz-Lopez was interviewed in the
Solano County Jail in Fairfield, California by Department of
Homeland Security (“DHS”) Agent Axel Sauter. From 1997
to 2002, Agent Sauter was assigned “to interview aliens
encountered in the United States to determine their status,”
and he conducted about 600 interviews a year. Although not
fluent in Spanish, Agent Sauter received Spanish lessons as
part of his training and did “more than half” of his interviews
at the Solano County jail in Spanish. It was his “regular
4 UNITED STATES V. RUIZ-LOPEZ
practice” to terminate the interview if language proved to be
a barrier to communication. Agent Sauter conducted each
interview the same way according to his “pattern and
practice.” He would take handwritten notes during the
interview, and then type those notes and enter them onto a
Record of Deportable/Inadmissible Alien form (“Form I-
213”) within a day. None of the information entered onto the
Form I-213 was taken from state or federal indices or filled
in before the interview, although Agent Sauter would look at
such indices before an interview to confirm any relevant
information.
Ruiz-Lopez was arrested in 2011 in Northern California.
During Ruiz-Lopez’s jury trial for illegal reentry, Agent
Sauter testified that he could not remember Ruiz-Lopez, but
Agent Sauter recognized his own signature and name on
Ruiz-Lopez’s Form I-213. The Form I-213 relating to Ruiz-
Lopez was created following Agent Sauter’s usual pattern and
practice.
Agent Sauter testified that Ruiz-Lopez told him that:
(1) he “was born in Zamora, Michoacan, Mexico”; (2) in
1997, Ruiz-Lopez entered the United States near Nogales,
Arizona, without inspection after having used the services of
a “coyote,” or smuggler, for the price of $800; and (3) his
father and mother were both born in Mexico, but they were in
the United States as lawful permanent residents. Ruiz-Lopez
said that he did not fear persecution if he returned to Mexico,
that he had no pending application for status in the United
States, and that his parents had not applied for any kind of
benefit on his behalf.
Agent Courtney Norris of the Immigration and Customs
Enforcement (“ICE”) testified about the documents in Ruiz-
UNITED STATES V. RUIZ-LOPEZ 5
Lopez’s A-file, which is the “official record for an
individual” recording “all of that individual’s contacts or
encounters with Immigration Customs Enforcement,
Citizenship and Immigration Services, Custom and Border
Protection, and the Legacy INS.” Ruiz-Lopez’s A-file
contained the following documents: (1) the Form I-213; (2) a
Notice of Intent to Issue a Final Administrative Removal
Order (“Form I-851”); (3) a Final Administrative Removal
Order (“Form I-851A”); (4) a Warning to Alien Ordered
Removed or Deported, in English and Spanish (“Form I-
294”); and (5) a Warrant of Removal/Deportation (“Form I-
205”).
The Form I-851 was served on Ruiz-Lopez nineteen days
before his removal. It notified him that the INS had
determined that he was subject to expedited administrative
removal based on allegations that he was not a citizen or
national of the United States, was a native and citizen of
Mexico, had entered the United States near Nogales, Arizona,
without inspection, and was not eligible for any statutory
relief from deportation. That form also had a section titled
“Your Rights and Responsibilities” that told Ruiz-Lopez of
his rights, and he acknowledged receipt of that notice by
signing it at the top of the second page, using his alias Luis
Rodriguez. At the bottom of that page, the box admitting the
allegations and waiving his right to contest the charges or
petition for review of the Final Removal Order had been pre-
checked. Ruiz-Lopez’s signature and fingerprint on that
Form I-851 were witnessed by a detention officer.
The other forms were also served on Ruiz-Lopez. The
Form I-294 was served on Ruiz-Lopez in both English and
Spanish, and it told him that he had been found deportable,
that he was time barred from reapplying for permission to
6 UNITED STATES V. RUIZ-LOPEZ
enter the United States, and of the legal consequences if he
were to reenter illegally. On both the English and Spanish
forms, Ruiz-Lopez hand-marked and initialed boxes
acknowledging receipt, signed them, and attached
fingerprints. Agent Norris admitted that sometimes the boxes
detailing that the form had been explained do not get
checked, but “the pattern and practice is to explain [the
form].”
Ruiz-Lopez’s Record of Sworn Statement, taken after his
arrest in 2011, was also admitted in evidence with redaction.
Agent Norris testified that in the area describing languages
spoken by Ruiz-Lopez, the Spanish box had been pre-printed
as checked, but the English box was checked by hand and the
form specified that an interpreter was not used.
At the close of the government’s case, Ruiz-Lopez moved
for judgment of acquittal under Federal Rule of Criminal
Procedure 29 based on insufficient evidence establishing that
he was an alien. The district court denied this motion. After
the guilty verdict, the motion was renewed and again denied.
II
We review de novo the district court’s denial of a motion
for judgment of acquittal based on insufficient evidence.
United States v. Acosta-Sierra, 690 F.3d 1111, 1117 (9th Cir.
2012). Under Jackson v. Virginia, 443 U.S. 307, 319 (1979),
we view the evidence in the light most favorable to the
prosecution, and then determine whether any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt. United States v. Nevils, 598 F.3d
1158, 1167 (9th Cir. 2010) (en banc). This standard,
protecting the key role of the jury in determining guilt or
UNITED STATES V. RUIZ-LOPEZ 7
innocence of crime, cannot be met by a person convicted in
jury trial, when the jury heard evidence that would permit it
to find guilt beyond a reasonable doubt on all the essential
elements of the crime.
Ruiz-Lopez contends that the evidence presented at trial
was insufficient for a jury to find his alienage beyond a
reasonable doubt. To be convicted of illegal reentry under
8 U.S.C. § 1326, the government must prove that “the
defendant was an alien at the time of the defendant’s entry
into the United States.” Ninth Circuit Criminal Jury
Instruction 9.8 (2010). “[N]either a deportation order, nor the
defendant’s own admissions, standing alone,” is sufficient to
prove alienage. United States v. Ramirez-Cortez, 213 F.3d
1149, 1158 (9th Cir. 2000) (internal citations omitted); see
also United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir.
1997).
We conclude that the evidence presented was sufficient to
find the requisite alienage. Ruiz-Lopez argues that United
States v. Ortiz-Lopez, 24 F.3d 53 (9th Cir. 1994), is
controlling. In that case, we held that a deportation order
alone was not sufficient to support a finding of alienage. Id.
We declined to shift the burden of proof by requiring a
defendant to overcome a presumption of alienage created by
a deportation order. Id. at 56; see United States v. Noriega-
Perez, 670 F.3d 1033, 1039 n.5 (9th Cir. 2012) (finding that
“the circumstantial evidence relied on by the Government
‘does not implicate the burden-shifting or standards of proof
problems of Ortiz-Lopez’” (quoting United States v. Barajas-
Montiel, 185 F.3d 947, 955 (9th Cir. 1999))). Relying on
Ortiz-Lopez, Ruiz-Lopez contends that the only evidence of
his alienage is the deportation order, which, he asserts,
includes the Form I-213 and all of the documentation in the
8 UNITED STATES V. RUIZ-LOPEZ
A-file because those documents relied upon and flowed from
the Form I-213. At the same time, Ruiz-Lopez seeks to
undermine the credibility of the Form I-213 by suggesting
that Agent Sauter’s rendering of the interview was flawed
because of practices or potential language issues.
We reject these arguments. Although we have
consistently barred reliance on a deportation order alone to
prove alienage, the Form I-213 and other documentation
included in Ruiz-Lopez’s A-file are not a “deportation order.”
The Form I-213 starts the deportation process, but is not an
“order.” See United States v. Garcia-Villegas, 575 F.3d 949,
951 (9th Cir. 2009) (describing information similar to that in
the Form I-213, including method of illegal entry, as evidence
of alienage); United States v. Bahena-Cardenas, 411 F.3d
1067, 1076 (9th Cir. 2005) (referring to “evidence of
deportation” rather than all of the evidence leading to that
deportation). This view is supported by United States v.
Hernandez, 105 F.3d 1330, 1333 (9th Cir. 1997), where we
concluded that, along with a deportation order, “the fact that
Hernandez entered the United States by scaling the border
fence rather than via an established border checkpoint is an
indication that Hernandez entered the United States illegally
as an alien.” Information like that presented in Hernandez
was included in Ruiz-Lopez’s Form I-213,which said that he
had employed a coyote to smuggle him into the country for
the sum of $800. This is more information than the mere fact
of Ruiz-Lopez’s prior deportation. Ruiz-Lopez gave other
information corroborating his likely alienage during the
course of the interview, and together this evidence is
sufficient to prove alienage. See United States v. Galindo-
Gallegos, 244 F.3d 728, 732 (9th Cir. 2001) (“A defendant’s
admissions that he is an alien, together with a deportation
order, suffice to establish alienage.”); Ramirez-Cortez,
UNITED STATES V. RUIZ-LOPEZ 9
213 F.3d at 1158 (finding sufficient the “prior deportation
order, admissions Ramirez-Cortez made in his underlying
deportation proceeding, and the testimony of an INS agent
that his review of . . . [the] records reflected that Ramirez-
Cortez was an alien”). Ruiz-Lopez’s premise that the Form
I-213 is equivalent to the order of deportation is mistaken. So
long as the documents in an A-file have been properly
admitted in the criminal case, and the jury has been instructed
as to the “beyond a reasonable doubt” standard, which is
higher than the standard required in a deportation hearing,
such documents may be considered by the jury and,
depending on their contents, may constitute sufficient proof
of alienage if the jury so concludes.
Additionally, under Jackson, we must consider evidence
in the light most favorable to the prosecution. 443 U.S. at
319. “[A] court of appeals may not usurp the role of the
finder of fact by considering how it would have resolved the
conflicts, made the inferences, or considered the evidence at
trial.” Nevils, 598 F.3d at 1164. The government presented
evidence rebutting language barrier or inaccuracy issues,
including Agent Sauter’s standard practices and the
presentation of Form I-294 in both English and Spanish, as
well as Ruiz-Lopez’s signatures and fingerprints on several
of the forms. Viewed in the light most favorable to the
prosecution, this evidence is sufficient to find that Ruiz-
Lopez spoke at least some English and that the Form I-213
was accurate. Ruiz-Lopez argues that the facts “undermine
the reliability of the Form I-213 in this case.” But while the
evidence could support a different result, a rational trier of
fact could certainly come to the conclusion that the Form I-
213 accurately captured Ruiz-Lopez’s interview with Agent
Sauter.
10 UNITED STATES V. RUIZ-LOPEZ
In this case, the jury could have decided that alienage
was, or was not, established beyond a reasonable doubt.
Under Jackson, the jury verdict must stand where, as here,
after receiving proper instructions, the jury concluded that
Ruiz-Lopez was guilty on all elements of illegal reentry and
the verdict is supported with sufficient evidence. 443 U.S. at
319. For the reasons expressed above, the district court did
not err in denying a judgment of acquittal.
AFFIRMED.