F IL E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 1, 2006
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-8126
(D.C. No. 05-CR-219)
IGNACIO LARA-IBANEZ, (Wyoming)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
BALDOCK, Circuit Judge.
On July 13, 2005, in a one-count indictment filed in the United States District
Court for the District of Wyoming, Ignacio Lara-Ibanez (the defendant) was charged with
having been found in the United States after having been previously deported from the
United States, and “having not obtained the consent of the Attorney General of the United
States or his successor, the Secretary for Homeland Security . . . to reapply for admission
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate
record, this panel has determined unanimously to honor the parties’ request for a decision
on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
The case is therefore submitted without oral argument.
into the United Sates,” in violation of 8 USC §§ 1326(a)(1) and (2) and (b)(2). On July
18, 2005, the defendant pled not guilty. On September 12, 2005, the case proceeded to
trial by jury, and on September 13, 2005, the jury found the defendant guilty as charged.
A pre-sentence report set defendant’s adjusted offense level at 16, and his criminal history
category at VI, resulting in a guideline range of 46 to 57 months imprisonment. The
district court imposed a sentence of imprisonment for 46 months. The defendant then
filed a timely notice of appeal.
At trial, the government called three witnesses, and the defendant called none. A
brief summary of the government’s evidence will place the one issue raised on appeal in
focus.
Officer Buhler of the Casper, Wyoming Police Department testified that he
responded to a report of a “suspicious person” who allegedly had been “lurking” behind a
local Casper service station for some 45 minutes. The officer, upon arrival at the service
station, made contact with the defendant. According to Officer Buhler, the defendant
“evaded” questions about his name, date of birth, and social security number by giving
“conflicting” answers to the officer, whereupon the officer arrested the defendant for
interfering with a police officer.
The defendant was then taken to the local Casper police station and “booked.”
Using the name given the booking officer by the defendant and the several dates of birth
also given by the defendant, the booking officer contacted a local Immigration &
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Customs Enforcement (ICE) officer who determined to his satisfaction that the defendant
was in Casper illegally, and he placed a “verbal hold” order on the defendant.
Shortly thereafter, a local Casper ICE Officer, Agent Marco Rodriguez, began his
investigation of the defendant’s status in the United States. He immediately requested
information and documents that were contained in what the parties referred to as the
defendant’s “A-file.” One of the documents that Rodriguez received was a Warrant of
Removal/Deportation, and, based on his comparison of the defendant’s booking
photograph and the photograph on the Warrant of Deportation, Agent Rodriguez
determined to his satisfaction that the defendant was the person named in the Warrant of
Deportation. Agent Rodriguez further determined, from materials in the A-file, that the
defendant had been previously deported two times from the United States, the most recent
of which had occurred on March 31, 2005. Armed with this information, Agent
Rodriguez questioned the defendant who readily admitted that he was the subject of the
Warrant of Deportation and that he had been twice deported from the United States.
However, the defendant declined to make a written statement to that effect. At Agent
Rodriguez’s request, the defendant provided him with fingerprints for the purposes of
comparing his prints with the prints on the Warrant of Deportation. A final witness for
the government, a fingerprint analyst, compared the prints taken from the defendant with
the prints of the Warrant of Deportation and testified that they matched. There was no
cross-examination of the fingerprint analyst by defense counsel.
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On appeal, the defendant raises one issue, which counsel frames as follows:
“Was Appellant’s right to confrontation violated when hearsay
documents from his immigration file were used against him at
trial?”
In thus arguing, counsel relies entirely on Crawford v. Washington, 541 U.S. 36
(2004). In that case, the defendant and his wife went to the apartment of a man who had
allegedly tried to rape the defendant’s wife. In the ensuing confrontation involving the
defendant, his wife, and the alleged assailant, the defendant stabbed the latter. The police
later took recorded statements from both the defendant and his wife. The defendant was
thereafter charged with assault and attempted murder. The State of Washington at the
time had a marital privilege statute which, generally, barred a spouse from testifying at a
trial of the other spouse without the latter’s consent. The defendant in Crawford did not
consent thereto. Accordingly, the state sought to introduce the defendant’s spouse’s
recorded statement, which, according to the state, tended to contradict the defendant’s
prior testimony given at trial that he had acted in self-defense. On that basis, the trial
court admitted into evidence the recorded statement of defendant’s wife. A jury
convicted the defendant, but the Washington Court of Appeals reversed. However, the
Washington Supreme Court on appeal reinstated defendant’s conviction. On certiorari
the Supreme Court reversed and concluded that admitting the recorded statements of the
defendant’s wife, which the Court characterized as “testimonial hearsay,” violated
defendant’s Sixth Amendment right “to be confronted with evidence against him.”
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Crawford at 68.
At the conclusion of the government’s case, the government moved to admit into
evidence the defendant’s so-called immigration file, which included the defendant’s
warrant of removal and deportation, a Certificate of Nonexistence of a Record, as well as
other matters. Based on Crawford v. Washington, supra, the defendant objected thereto.
After only a very short argument, the district court overruled defendant’s objections and
received into evidence defendant’s immigration file. In so doing, the district court relied
on Fed. R. Evid. 803(8) and (10), which provide as follows:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(8) Public records and reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth
(A) the activities of the office or agency, or (B) matters observed
pursuant to duty imposed by law as to which matters there was a duty
to report, excluding, however, in criminal cases matters observed by
police officers and other law enforcement personnel, or (C) in civil
actions and proceedings and against the Government in criminal
cases, factual findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of information or
other circumstances indicate lack of trustworthiness.
* * * * * * * * *
(10) Absence of public record or entry. To prove the absence
of a record, report, statement, or data compilation, in any
form, or the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data compilation, in any
form, was regularly made and preserved by a public office or
agency, evidence in the form of a certification in accordance
with rule 902, or testimony, that diligent search failed to
disclose the record, report, statement, or data compilation, or
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entry.
As indicated, on appeal the defendant’s only argument is that under Crawford,
supra, the district court erred in admitting into evidence over timely objection his
immigration files and admitting Agent Rodriguez’ testimony regarding such. As concerns
Crawford, supra, we would note at the outset, that, in reversing, Justice Scalia, writing
for the Court, noted, at page 56, “There were always exceptions to the general rule of
exclusion of hearsay evidence.” The foregoing comment was recognized by Justice
Rehnquist in his concurring opinion in Crawford when he said “To its credit, the Court’s
analysis of ‘testimony’ excludes at least some hearsay exceptions, such as business
records and official records. See Ante at 56.”
By way of background, in United States v. Figueroa, an unpublished opinion
appearing at 2000 WL 963346 (10th Cir. 2000) which predated Crawford, we spoke as
follows:
FN5. Figueroa suggests in his brief that the warrant of
deportation or removal which stated that an INS agent had
witnessed the deportation in 1997 was not sufficient evidence
that he had been deported in 1997. Other courts have found
that this warrant is admissible in trial as proof that a defendant
was arrested and deported. See United States v. Quezada, 754
F.2d 1190, 1193-94 (5th Cir. 1985) (holding that warrant of
deportation is admissible hearsay under Fed. R. Evid.
803(8)(B) to prove defendant was deported); United States v.
Hernandez-Rojas, 617 F.2d 533, 534-35 (9th Cir. 1980)
(same). We agree with these courts that the warrant of
deportation is admissible to prove a defendant was in fact
deported.
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Figueroa at **5, n.5.
In Figueroa, we relied on United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir.
1985 ) and United States v. Hernandez-Rojas, 617 F.2d 533, 534-35 (9th Cir. 1980), both
of which hold that a warrant of deportation is admissible under Fed. R. Evid. 803(8) to
prove a defendant’s prior deportation. And subsequent to Crawford, both those circuits
have since held that a warrant for deportation, being “non-testimonial,” is admissible
against a defendant in a criminal case based on reentry after deportation. United States v.
Bahena-Cardenas, 411 F. 3d 1067, 1075 (9th Cir. 2005) and United States v. Valdez-
Maltos, 443 F. 3d 910, 911 (5th Cir. 2006). See also United States v. Cantellano, 430 F.
3d 1142, 1145 (11th Cir. 2005).
The defendant’s immigration file also contained a certificate signed by one Mike
Quinn, stating that no record exists that the defendant had ever sought, let alone obtained,
a certificate to reenter the United States. In this regard the indictment charged, inter alia,
that the defendant had reentered the United States after deportation even though he had
“not obtained the consent of the Attorney General of the United States or his successor,
the Secretary for Homeland Security, Title 6, United States Code §§ 202(3), (4) and 557
to reapply for admission into the United States.” A Certificate of No Existence of Record
(CNR) has also been held to come within the exception to the hearsay rule as set forth in
Fed. R. Evid. 803(10). See, for example, United States v. Cervantes-Flores, 421 F.3d
825, 830-834 (9th Cir. 2005), where the 9th Circuit held “that the CNR was properly
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admitted as nontestimonial evidence under Crawford.”
Judgment affirmed.
Submitted for the Court,
Robert H. McWilliams
Senior Circuit Judge
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