United States v. Nguyen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30011
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00085-a-JMF
DAL VAN NGUYEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Alaska
James M. Fitzgerald, District Judge, Presiding
Argued and Submitted
May 1, 2006—Seattle, Washington
Filed October 18, 2006
Before: Stephen Reinhardt, M. Margaret McKeown, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
17631
17634 UNITED STATES v. NGUYEN
COUNSEL
Kevin F. McCoy, United States Assistant Federal Defender,
Anchorage, Alaska, for the appellant.
Deborah M. Smith, Acting United States Attorney; Todd
Mikolop, Special Assistant United States Attorney; Thomas
C. Bradley (argued), Assistant United States Attorney,
Anchorage, Alaska, for the appellee.
UNITED STATES v. NGUYEN 17635
OPINION
CLIFTON, Circuit Judge:
Defendant Dal Van Nguyen appeals his conviction under 8
U.S.C. § 1253(b) for willful failure to comply with terms of
release under supervision. The term in question required that
Nguyen not “commit any crimes.” His conviction was based
solely upon proof that he had previously been convicted of
two Alaska state misdemeanors following pleas of nolo con-
tendere. Nguyen argues on appeal that, because a nolo con-
tendere plea is not an admission of guilt to the underlying
crime, a conviction based on such a plea does not prove that
he “commit[ted] any crimes.” He further argues that his state
convictions should not have been admitted into evidence in
his trial on the federal charge. We agree and reverse the con-
viction.
I. Background
Nguyen, a citizen of Vietnam, lawfully immigrated to the
United States in 1990, when he was a teenager. A decade
later, he was convicted as an adult of a misdemeanor drug
possession offense and ordered removed to Vietnam. Because
the United States and Vietnam do not have a repatriation
agreement, however, the Government has not been able to
remove Nguyen. Consequently, the Bureau of Immigration
and Customs Enforcement (“ICE”) released Nguyen from
immigration custody but imposed upon him an order of super-
vision, pursuant to 8 U.S.C. § 1231(a)(3). One of the condi-
tions of this order states that Nguyen is to “not commit any
crimes while on this Order of Supervision.”
Two years later, in state court, Nguyen pleaded nolo con-
tendere to, and was convicted of, two misdemeanors: criminal
mischief in the fourth degree, in violation of Alaska Statutes
§ 11.46.484, and assault in the fourth degree, in violation of
Alaska Statutes § 11.41.230(a)(3). Thereafter he was charged
17636 UNITED STATES v. NGUYEN
with willful failure to comply with the terms of release under
supervision, in violation of 8 U.S.C. § 1253(b), a criminal
statute under the Immigration and Naturalization Act
(“INA”). Nguyen was tried before a jury.
At trial, to prove that Nguyen violated his order of supervi-
sion by committing crimes, the Government presented as its
only evidence certified copies of the two state court judg-
ments of conviction resulting from the pleas of nolo con-
tendere. Nguyen objected, arguing that the judgments were
hearsay and were also inadmissible under Federal Rule of
Evidence 410, which provides that pleas of nolo contendere
are ordinarily not admissible into evidence. The district court
overruled the objections and admitted the judgments, without
explaining the basis for doing so. At the close of the Govern-
ment’s case, Nguyen moved for a judgment of acquittal, argu-
ing that the misdemeanor nolo contendere convictions were
legally insufficient to prove that he committed the underlying
crimes, in willful violation of his order of supervision. The
district court denied the motion. The jury found Nguyen
guilty of violating 8 U.S.C. § 1253(b), and the district court
sentenced him to one year in prison. Nguyen timely appealed.
II. Discussion
This court reviews the district court’s evidentiary determi-
nations for an abuse of discretion. See United States v. Bel-
tran, 165 F.3d 1266, 1269 (9th Cir. 1999). The district court
abuses its discretion when its evidentiary rulings are based on
“an erroneous view of the law or a clearly erroneous assess-
ment of the facts.” United States v. Morales, 108 F.3d 1031,
1035 (9th Cir. 1997). We review de novo the district court’s
denial of a Fed. R. Crim. P. 29 motion for judgment of acquit-
tal. See United States v. Lombera-Valdovinos, 429 F.3d 927,
928 (9th Cir. 2005). Specifically, we review de novo the legal
question of whether a misdemeanor conviction based on a
nolo contendere plea is sufficient proof that the underlying
UNITED STATES v. NGUYEN 17637
crime was committed. See United States v. Poellnitz, 372 F.3d
562, 565 (3d Cir. 2004).
A. The Proof Necessary to Sustain a Conviction under 8
U.S.C. § 1253(b)
[1] The Government charged Nguyen with violating 8
U.S.C. § 1253(b), which states: “An alien who shall willfully
fail to comply with regulations or requirements issued pursu-
ant to section 1231(a)(3) of this title . . . shall be fined not
more than $1,000 or imprisoned for not more than one year,
or both.” The “regulation or requirement” incorporated by ref-
erence was the ICE order of supervision, specifically the
requirement that Nguyen “not commit any crimes.” Thus, to
convict Nguyen, the Government had to prove that he had
committed one or more crimes. That is not quite the same as
proving that he had been convicted on criminal charges. Even
if Nguyen had not been previously convicted on the underly-
ing state court charges, for instance, he could be convicted on
the federal charge based upon proof that he had, in fact, actu-
ally committed the crimes of assault and criminal mischief.
[2] The Government’s evidence consisted solely of the two
certified judgments of conviction. The judgments were
offered to provide the jury with a basis to infer that Nguyen
actually committed the underlying crimes, in violation of his
order of supervision. But the law does not support that infer-
ence. Each conviction resulted from a plea of nolo con-
tendere, which is a special creature under the law. It is, first
and foremost, not an admission of factual guilt. See North
Carolina v. Alford, 400 U.S. 25, 36 (1970). It merely allows
the defendant so pleading to waive a trial and to authorize the
court to treat him as if he were guilty. See also id. at 37 (“An
individual accused of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence
even if he is unwilling or unable to admit his participation in
the acts constituting a crime.”). The availability of the nolo
contendere plea to the criminally accused reflects society’s
17638 UNITED STATES v. NGUYEN
“desire to encourage compromise resolution of criminal
cases.” Olsen v. Correiro, 189 F.3d 52, 60 (1st Cir. 1999). For
these reasons, “the nolo plea does not bear the same indicia
of reliability as a guilty plea when used as evidence of under-
lying culpability.” Id. at n.8 (citing Fed. R. Evid. 410 advisory
committee notes, 1972 proposed rules). A conviction resulting
from a nolo contendere plea under these circumstances is not
by itself sufficient evidence to prove a defendant committed
the underlying crime.
B. Admissibility of the Evidence
Our understanding of the inferences which may properly be
drawn from nolo contendere convictions is supported by the
limitations imposed on their admissibility under the Federal
Rules of Evidence. Those judgments should not have been
admitted into evidence in Nguyen’s trial.
Our review of the evidentiary challenge is complicated by
the fact that the district court admitted the judgments without
explaining the evidentiary basis for doing so. We examine in
turn each of the three grounds upon which the parties agree
the district court could have attempted to justify admitting the
evidence: Rules 410, 803(8), and 803(22). We conclude that
the admission of the evidence under any of these rules was an
abuse of discretion.
1. Federal Rule of Evidence 410
[3] Rule 410 states, in relevant part: “Except as otherwise
provided in this rule, evidence of the following is not, in any
civil or criminal proceeding, admissible against the defendant
who made the plea or was a participant in the plea discus-
sions: . . . a plea of nolo contendere . . . .” The Government
points out that the language of Rule 410 bars only the admis-
sion of “nolo contendere pleas,” not the convictions resulting
from them. The First Circuit has suggested, though, that the
rule should prohibit the admission of the nolo contendere con-
UNITED STATES v. NGUYEN 17639
viction if it “were offered for the purpose of demonstrating
that the pleader is guilty of the crime pled to.” Olsen, 189
F.3d at 60. In that situation, which is precisely the one pres-
ented here, “the nolo plea would in effect be used as an
admission and the purposes of Rule 410 would be under-
mined.” Id.
[4] We agree. Reading the rule to preclude admission of a
nolo contendere plea but to permit admission of conviction
based on that plea produces an illogical result. Rule 410’s
exclusion of a nolo contendere plea would be meaningless if
all it took to prove that the defendant committed the crime
charged was a certified copy of the inevitable judgment of
conviction resulting from the plea. We hold that Rule 410
prohibits the admission of nolo contendere pleas and the con-
victions resulting from them as proof that the pleader actually
committed the underlying crimes charged.
2. Federal Rule of Evidence 803(22)
[5] Rule 803(22) provides an exception to the bar of the
hearsay rule for certain criminal judgments of conviction, but
that exception does not apply to Nguyen’s two state convic-
tions. That rule states: “Evidence of a final judgment, entered
after a trial or upon a plea of guilty (but not upon a plea of
nolo contendere), adjudging a person guilty of a crime pun-
ishable by death or imprisonment in excess of one year [is
admissible] to prove any fact essential to sustain the judgment
. . . .” In short, Rule 803(22) allows judgments of felony con-
victions resulting from guilty pleas to be admitted into evi-
dence but not convictions resulting from nolo contendere
pleas and not misdemeanor convictions. According to the
Advisory Committee Notes accompanying the rule, nolo con-
tendere convictions are inadmissible “consistent with the
treatment of nolo pleas in Rule 410,” and misdemeanor con-
victions are inadmissible because “motivation to defend at
this level is often minimal or nonexistent.” The admission into
evidence of Nguyen’s misdemeanor nolo contendere convic-
17640 UNITED STATES v. NGUYEN
tions failed on both scores and was inconsistent with Rule
803(22).
3. Federal Rule of Evidence 803(8)
[6] The judgments of conviction could not properly have
been admitted under Rule 803(8), either. That rule exempts
from the hearsay rule public records and reports. That more
general reference in Rule 803(8) cannot trump the more spe-
cific limitation on the admission of judgments of conviction.
All judgments of conviction may be said to be public records,
but the exemption under Rule 803(8) cannot be deemed to
cover such judgments because it would make Rule 803(22)
superfluous. See United States v. Weiland, 420 F.3d 1062,
1074 (9th Cir. 2005) (noting that evidence cannot be admitted
under a general evidentiary rule in order to circumvent a more
specific rule prohibiting admission).
Our circuit has previously affirmed the admission into evi-
dence of misdemeanor judgments of conviction under this
rule in certain circumstances. See United States v. Loera, 923
F.2d 725, 730 (9th Cir. 1991); United States v. Wilson, 690
F.2d 1267, 1275 n.2 (9th Cir. 1982). In these cases, however,
the misdemeanor judgments of conviction were not admitted
for the purpose of proving that the defendant committed the
underlying crimes charged therein. Rather, the convictions
tended to prove some other element of subsequent crimes
charged. In Loera, a defendant’s prior drunk driving misde-
meanor judgments of conviction were admitted for the limited
purpose of establishing the element of malice required for
second degree murder, i.e., that the defendant had grounds to
be aware of the risk that drunk driving presented to others.
923 F.3d at 729. Similarly, in Wilson, at the defendant’s trial
on escape charges, his prior misdemeanor judgment of con-
viction for counterfeiting was admitted to establish that he
had been incarcerated at the time that he was alleged to have
escaped. 690 F.2d at 1275.
UNITED STATES v. NGUYEN 17641
[7] The admission of misdemeanor judgments of conviction
under Rule 803(8), per Loera and Wilson, should be confined
to the set of circumstances present in those cases. In other
words, misdemeanor judgments of conviction may be admis-
sible under Rule 803(8) to prove some other element of a sub-
sequently charged crime, but they are not admissible to prove
that the defendant actually committed the underlying crimes
charged. See Olsen, 189 F.3d at 63 (citing 4 Mueller & Kirk-
patrick, Federal Evidence, § 471, at 660). Without this limita-
tion to its reach in place, Rule 803(8) would swallow whole
Rule 803(22)’s prohibition against the admission of misde-
meanor convictions resulting from pleas of nolo contendere.
Such a result could not have been intended by the drafters of
the Federal Rules of Evidence. In short, there was no basis
under the Federal Rules of Evidence for the district court to
have admitted the certified copies of Nguyen’s misdemeanor
nolo contendere convictions.
C. The Fact of Conviction Does Not Trigger Criminal
Liability under 8 U.S.C. § 1253(b)
[8] Finally, we briefly address and reject an alternative
argument presented by the Government on appeal. The Gov-
ernment contends that the fact of conviction alone triggered
criminal consequences under 8 U.S.C. § 1253(b), regardless
of the nature of the plea leading to that conviction. In support
of this argument, it notes that 8 U.S.C. § 1253(b) is a criminal
provision of the INA, which elsewhere defines “conviction”
to include convictions resulting from nolo contendere pleas.
See 8 U.S.C. § 1101(a)(48)(A). If 8 U.S.C. § 1253(b) crimi-
nalized the act of being convicted, then the fact that the con-
viction resulted from a nolo contendere plea would truly be
irrelevant. As we have discussed earlier, however, the statute
and the term of the order of supervision that it incorporates by
reference both premise criminal liability on the act of “com-
mit[ting] any crimes,” not the act of being convicted. Thus,
the INA’s “conviction” definition is of no consequence.
17642 UNITED STATES v. NGUYEN
[9] Equally unavailing are the cases cited by the Govern-
ment in which the fact of prior conviction triggered collateral
consequences in administrative hearings. See Abimbola v.
Ashcroft, 378 F.3d 173, 174 (2d Cir. 2004); Myers v. Sec’y of
HHS, 893 F.2d 840, 841-42, 845 (6th Cir. 1990); Pearce v.
U.S. Dep’t of Justice, 836 F.2d 1028, 1029 (6th Cir. 1988)
(per curiam); Crofoot v. U.S. Gov’t Printing Office, 761 F.2d
661, 665 (Fed. Cir. 1985). At issue here is a criminal prosecu-
tion. The consequences of administrative proceedings are not
the same as a criminal prosecution, and the burdens of proof
and rules of evidence are different. The Government was
required here to bear the burden of proving in court, beyond
a reasonable doubt, that Nguyen committed crimes while
under supervision. Proof of his misdemeanor convictions
based on his nolo contendere pleas did not carry that burden.
III. Conclusion
Nguyen’s conviction must be reversed. The misdemeanor
nolo contendere convictions were legally insufficient to sup-
port Nguyen’s conviction for violating 8 U.S.C. § 1253(b).
Moreover, the convictions should not have been admitted
under Rules 410, 803(22), or 803(8) for the purpose of prov-
ing that Nguyen actually committed the underlying crimes
charged. In this situation, the Government is prohibited from
retrying Nguyen on the 8 U.S.C. § 1253(b) charge. See United
States v. Bibbero, 749 F.2d 581, 586 n.3 (9th Cir. 1984) (“If
all the evidence the government produced at a defendant’s
first trial, including that which should not have been admitted,
is insufficient to support the conviction, then the government
has had its proverbial ‘one bite at the apple’ and any retrial
would be forbidden.”).
REVERSED.