United States Court of Appeals
For the First Circuit
No. 04-1431
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
ROBERTO GARCÍA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Stafford,* Senior District Judge.
James L. Sultan, with whom Jonathan Harwell was on brief, for
appellant.
Nadine Pellegrini, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.
June 28, 2006
* Of the Northern District of Florida, sitting by designation.
Stafford, District Judge. Roberto García ("García")
appeals his conviction for illegal re-entry into the United States
by a deported alien in violation of 8 U.S.C. § 1326. We affirm.
I.
On February 28, 2002, Seth Plumb ("Plumb"), a special
agent with the Bureau of Immigration and Customs Enforcement
("ICE"), arrested García in Quincy, Massachusetts. As an ICE
special agent, Plumb was responsible for locating people who
entered the United States illegally. Plumb took García to the ICE
Office, where, during the booking process, García’s photograph and
fingerprints were taken.
As a result of his encounter with García, Plumb reviewed
the Alien Registration File of an individual named "Roberto
García," assigned Alien Registration Number 876 586 529. That
Alien Registration File contained a number of documents, all with
the same Alien Registration Number, revealing that "Roberto García"
was a native and citizen of Colombia who had entered the United
States illegally and had been deported in 1999 from the United
States to his native country. Among other things, the file
contained a Warrant for Deportation, dated December 13, 1999, which
included a photograph of "Roberto García" along with a print of his
right index finger. Trained in fingerprint comparison, Plumb
compared the fingerprints obtained from García during the 2002
booking process with the fingerprint on the 1999 Warrant of
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Deportation. Plumb concluded that the fingerprints belonged to the
same person. Plumb also recognized the man in the photograph as
the man he arrested in Quincy, Massachusetts.
García was indicted on March 27, 2002, in the United
States District Court for the District of Massachusetts on one
count of illegal re-entry by a deported alien in violation of 8
U.S.C. § 1326. He was convicted on November 4, 2003, after a two
day trial during which the government called three witnesses:
Plumb, Erik Carpenter ("Carpenter") (a forensic examiner for the
Latent Print Unit of the FBI’s Laboratory), and Joanne Sassone
("Sassone") (the Records and Information Services Officer for the
United States Citizenship and Immigration Service of the Department
of Homeland Security). On March 17, 2004, García was sentenced to
30 months in the custody of the Bureau of Prisons, with judgment
entered the following day.
II.
In challenging his conviction, García first argues that
the district court erred in admitting certain documents and
testimony at trial. He then argues that there was insufficient
evidence for a jury to convict him. We are not convinced by either
argument.
A. EVIDENTIARY RULINGS
In general, we review a district court's decision to
admit evidence for abuse of discretion. United States v. Flemmi,
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402 F.3d 79, 86 (1st Cir. 2005). Where no objection was made to
the admission of evidence at trial, we review evidentiary issues
for plain error. Id. To establish plain error, a defendant must
demonstrate that an error occurred which was obvious, which
affected his substantial rights, and which seriously impaired the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Delgado-Hernandez, 420 F.3d 16, 19-20 (1st. Cir.
2005).
1. García’s Affidavit
Roberto García’s Alien Registration File included an
affidavit, dated October 27, 1999, containing the following
statement, handwritten in English:
My true [and] complete name is
Roberto García. I was born on
May 10, 1969 in Colombia and I
am a citizen of Colombia. I
entered the U.S. from Mexico in
1989 illegally. I did not
present myself for inspection
because I did not have a Visa.
The handwritten statement was signed: "Roberto G." The affidavit
indicated that, while an interpreter was not used, the affiant
appeared before a Spanish-speaking officer of what was then the
United States Immigration and Naturalization Service1 ("INS"),
that the affiant was advised of his Miranda rights in Spanish, and
1
The INS has since become ICE, the Bureau of Immigration and
Customs Enforcement, which is part of the Department of Homeland
Security.
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that the affiant willingly made the above sworn statement.
Following the signed handwritten statement was a typewritten
statement indicating that the "foregoing statement" had been read
to the affiant, that the answers made therein were true and
correct, and that the affidavit was a full, true, and correct
record of the affiant’s interrogation by the INS officer. The
typewritten statement was signed: "Robert G."
Before trial began, García moved in limine to exclude the
affidavit, arguing that the affidavit was untrustworthy because it
was prepared in English and allegedly signed by García, who speaks
only Spanish. The district court rejected García’s argument,
explaining that (1) while the affidavit was written in English, it
was interpreted into Spanish by the INS officer; (2) the affidavit
indicated that García was advised of his rights; and 3) García’s
signature appeared on the affidavit. The district court noted not
only that the signature on the affidavit appeared to be the same as
the signature on a waiver-of-presence form2 signed by García in
open court that very day, but also that García did not challenge
the signature and did not proffer that the affidavit had not been
interpreted for him in Spanish.
At trial, the affidavit was introduced through Sassone,
who testified that Roberto García’s Alien Registration File was
2
García voluntarily absented himself from the courtroom after
jury selection, signing a waiver-of-presence form before he left
the courtroom.
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maintained in the regular course of business. Sassone identified
the various documents contained in the Alien Registration File,
including the 1999 affidavit, but she admitted that she had no
personal knowledge about the events that triggered the preparation
of those documents. García objected to admission of the affidavit
on hearsay and lack-of-authentication grounds.
The district court overruled García’s hearsay objection,
finding that the affidavit was an admission of a party opponent.
The district court again noted that García had adopted the
statements contained in the affidavit as his own and had offered
nothing to challenge the representation that the affidavit was
explained in Spanish.
The district court also overruled García’s objection to
admission of the affidavit on authentication grounds. According to
García, because Sassone had no personal knowledge about García’s
1999 deportation and was not present when the affidavit was
created, she could not establish that the document was, in fact,
signed by García. The district court was unpersuaded, having
itself seen the obvious similarities in the signature placed on the
waiver-of-presence form signed by García in open court and the
multiple signatures found on various documents in Roberto García’s
Alien Registration File.
García now contends that the district court committed
reversible error by admitting the affidavit signed by "Roberto G."
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We find no merit to such contention. Indeed, García has pointed to
nothing in the record that casts doubt upon the district court’s
findings that (1) the statements contained within the affidavit
were translated into Spanish for García’s benefit, (2) García
heard, understood, and acquiesced in those statements, and (3)
García twice signed the affidavit, thereby signaling his adoption
of the affidavit as his own. See McQueeney v. Wilmington Trust
Co., 779 F.2d 916, 930 (3d Cir. 1985) (holding that a seaman's
signature on Sea Service records prepared by others was "an
unequivocal adoption of the contents therein"). Given these
findings, we cannot say that the district court abused its
discretion in admitting the affidavit as a non-hearsay admission of
alienage by a party opponent.
García’s authentication argument is equally unavailing.
Under Federal Rule of Evidence 901(a), "[t]he requirement of
authentication . . . as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims." If the trial
court determines that there is sufficient evidence to allow a
reasonable person to believe the evidence is what it purports to
be, the evidence may be admitted subject to the factfinder’s
assessing what weight will be given to the evidence. United States
v. Alicea-Cardoza, 132 F.3d 1, 4 (1st Cir. 1997). There is no
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single way, moreover, to authenticate evidence. As this court has
recognized on more than one occasion:
[T]he direct testimony of a custodian or a
percipient witness is not a sine qua non to
the authentication of a writing. Thus, a
document's appearance, contents, substance,
internal patterns, or other distinctive
characteristics, taken in conjunction with
circumstances, can, in cumulation, even
without direct testimony, provide sufficient
indicia of reliability to permit a finding
that it is authentic.
E.g., United States v. Holmquist, 36 F.3d 154, 167 (1st Cir. 1994)
(citations and internal quotation marks omitted), cert. denied, 514
U.S. 1084, 115 S. Ct. 1797, 131 L. Ed. 2d 724 (1995); United States
v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994).
Here, given the absence of any evidence to refute what
the affidavit, on its face, revealed, we find no abuse of
discretion on the part of the district court in admitting the
affidavit. The content of the affidavit, the circumstances
surrounding its creation, and its location in an Alien Registration
File containing not only García’s photograph but also several
examples of his signature (a signature that appeared to be the same
as the signature placed on the waiver-of-presence form signed by
García in the presence of the district court) all support the
district court’s decision to admit the affidavit as an authentic
document.
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2. 1999 Fingerprint Card
During trial, García objected to the admission of
Government’s Exhibit 12, a fingerprint card that was signed
"Roberto G." on the front and stamped "USINS, Pittsburgh, PA" on
the back. Although it was included in Roberto García’s Alien
Registration File, the card was otherwise lacking a date, an Alien
Registration Number, and such identifying information as a date of
birth, social security number, height, weight, and FBI number.
García objected that the card was untrustworthy because its only
authentication was the purported signature of "Roberto G."
The district court overruled García’s objection and
admitted the fingerprint card, again noting that the signature on
the card appeared to be the same as the signature on the affidavit.
Indeed, the similarity in signatures was not the only factor
supporting the district court’s ruling. The fingerprint card was
contained in an Alien Registration File that included a photograph
of García. In addition, the stamp appearing on the back of the
card, "USINS, Pittsburgh, PA," was consistent with other documents
in the file indicating that the Roberto García whose photograph was
in the file had been in INS custody in Pittsburgh, Pennsylvania,
after he was encountered, but before he was deported, in 1999.
There was thus sufficient evidence before the district court to
warrant a reasonable person in believing that Government’s Exhibit
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12 was what it purported to be: namely, a card containing the
fingerprints of García.
3. Warrant of Deportation
The Warrant of Deportation, commanding any INS officer to
take custody of Roberto García and to remove him from the United
States, was introduced through Sassone. She testified that a
Warrant of Deportation, when complete with an alien’s photograph
and fingerprint, reveals that an INS official witnessed the alien’s
departure from the United States on a given date. As explained by
Sassone, the Warrant of Deportation contained in Roberto García’s
Alien Registration File, complete with photograph and fingerprint,
revealed that Roberto García was actually placed on a plane in
Newark, New Jersey, on December 13, 1999, for deportation out of
the United States. Sassone further explained that, had Roberto
García been granted permission to re-enter the United States
subsequently, such permission would be reflected not only in his
Alien Registration File but also in the INS’s computer indices.
Sassone testified that she found no evidence, either in the Alien
Registration File or the agency’s computer indices, that permission
to re-enter had ever been granted to Roberto García.
Relying on Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004), García contends on appeal that
the district court violated his confrontation rights by admitting
the 1999 Warrant of Deportation when the officer who signed the
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warrant was not made available for cross-examination. Because
García did not object to the admission of the Warrant of
Deportation at trial, we review for plain error.
In Crawford, 541 U.S. at 68, the Supreme Court held that
the Confrontation Clause prohibits the admission of out-of-court
statements that are testimonial in nature unless the declarant is
unavailable and the defendant had a prior opportunity to
cross-examine the declarant concerning the statements. García
argues that the Warrant of Deportation admitted in this case falls
within the "core class" of testimonial statements described by the
Supreme Court in Crawford.
At least three circuit courts have rejected the very
argument being made here by García. In United States v.
Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006), the Fifth Circuit
held that warrants of deportation do not constitute testimonial
hearsay under Crawford. The Ninth and Eleventh Circuits have
likewise held that defendants have no right to confront and
cross-examine the agents who routinely record warrants of
deportation because warrants of deportation are "non-testimonial"
and, therefore, not subject to the confrontation clause. See
United States v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir.
2005), cert. denied, 126 S. Ct. 1652, 164 L. Ed. 2d 398 (2006);
United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005),
cert. denied, 126 S. Ct. 1604, 164 L. Ed. 2d 325 (2006); see also
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United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005)
(stating generally that documents in a defendant's immigration file
are analogous to non-testimonial business records); United States
v. Quezada, 754 F.2d 1190, 1194-95 (5th Cir. 1985) (holding that a
warrant of deportation contained in an alien's INS file was
reliable and admissible because the official preparing the warrant
had no motivation to do anything other than "mechanically register
an unambiguous factual matter").
Because we find no reason to disagree with the Fifth,
Ninth, and Eleventh Circuits, we conclude that García has
established no error at all, much less plain error, with regard to
the admission of the 1999 Warrant of Deportation.
4. Plumb’s Identification of García
At trial, Agent Plumb testified, without objection, that
he recognized the person whose picture appeared on the 1999 Warrant
of Deportation as the same person he encountered in 2002 under the
name "Roberto García." Plumb also testified that he recognized
this person as the individual--referring to García--who was in the
courtroom during jury selection earlier that morning. García now
contends that the district court committed plain error by admitting
Plumb’s opinion testimony regarding the identity of the person in
the photograph on the Warrant of Deportation. According to García,
Plumb’s testimony was improper because it was based on Plumb’s one-
time "scant exposure" to García.
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Although Plumb encountered García only once, it was not
a fleeting encounter. In fact, Plumb encountered García in Quincy,
Massachusetts, transported García from Quincy to Boston, booked
García into the ICE system, filled in García’s fingerprint card,
and served García with several documents. There is nothing in the
record to suggest that Plumb was unable to fully observe García
during the 2002 arrest and booking, that Plumb did not remember
García, or that Plumb had any difficulty in identifying García,
either in person or by photograph. Under the circumstances, we
find no plain error in the district court’s decision to admit
Plumb’s identification testimony.
5. Plumb’s Expert Testimony on Fingerprint Comparison
García contends that the district court abused its
discretion in permitting Agent Plumb to testify--over García’s
objection--as an expert with respect to fingerprint comparison.
García maintains that Plumb’s purported expertise was inadequate in
that it rested on a mere two days of training. We disagree.
In essence, Plumb testified that his training in
fingerprint comparison began with a 16-hour course taught by a
representative of the Massachusetts Bureau of Criminal
Investigations. Plumb further explained that he received a
certification in fingerprint comparison after he completed the 16-
hour course, that he conducted more than 80 fingerprint comparisons
over the course of the next two years, that his comparisons were
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sometimes verified by another INS officer or by the Federal Bureau
of Investigation, that the results of his comparisons had never
differed from those of the person verifying his comparisons, and
that he had testified as a fingerprint expert in federal court on
several occasions.
This court may reverse the district court’s decision
regarding expert testimony only if the ruling "was so wide of the
mark as to constitute an abuse of discretion." Macaulay v. Anas,
321 F.3d 45, 51 (1st Cir. 2003); see also United States v. Valle,
72 F.3d 210, 214 (1st Cir. 1995) (explaining that the trial court
has discretion to admit or reject expert testimony and its
determination is reviewable only for an abuse of that discretion).
Here, there was no abuse of discretion. To be sure, some experts
are more qualified than others, and Plumb--in his capacity as a law
enforcement officer--may not have had the same expertise as someone
whose sole occupation is to compare latent prints. Plumb’s
training and experience were sufficient, however, to permit the
district court, in its discretion, to admit Plumb’s testimony. It
was up to the jury to weigh that testimony, given what the jurors
heard on direct and cross-examination about Plumb’s training and
experience.
B. SUFFICIENCY OF THE EVIDENCE
This court reviews sufficiency of the evidence claims de
novo. United States v. Cruzado-Laureano, 404 F.3d 470, 480 (1st
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Cir.), cert. denied, 126 S. Ct. 639, 163 L. Ed. 2d 517 (2005). The
court must determine "whether the evidence, taken in the light most
favorable to the government--a perspective that requires us to draw
every reasonable inference and resolve credibility conflicts in a
manner consistent with the verdict--would permit a rational trier
of fact to find each element of the crime charged beyond a
reasonable doubt." United States v. Patel, 370 F.3d 108, 111 (1st
Cir. 2004).
To convict a defendant of a section 1326 violation, the
government must prove that (1) the defendant is an alien; (2) he
was arrested and deported; and (3) he thereafter entered, or
attempted to enter, the United States without the express consent
of the Attorney General of the United States to apply for
readmission to the United States since the time of his previous
arrest and deportation. United States v. Cabral, 252 F.3d 520,
522-23 (1st Cir. 2001). Here, García maintains that the
government’s "paltry evidence" was insufficient to prove, beyond a
reasonable doubt, that the person who was deported in 1999 was
García. According to García, the probative value of the
government’s evidence was "virtually nil" for the same reasons that
the evidence--including the affidavit, the Warrant of Deportation,
and the identification testimony--was purportedly inadmissible. We
are not persuaded.
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To the contrary, we find that the evidence adduced at
trial--all properly admissible--was more than ample to establish,
beyond a reasonable doubt, all three elements of the section 1326
charge against García. The signed statement admitting alienage,
the Warrant of Deportation--with photograph and fingerprint--
indicating that García was seen departing the United States in
1999, Plumb’s testimony regarding his 2002 encounter of García,
Plumb’s testimony regarding García’s identity, and Sassone’s
testimony regarding the absence of evidence establishing that
García had permission to re-enter the United States, could lead a
rational trier of fact to conclude, beyond a reasonable doubt, that
García was guilty as charged. That the government failed to call
any witness who personally saw García sign the affidavit or depart
from the United States does not lead us to think otherwise. See
United States v. Melendez-Torres, 420 F.3d 45, 49 (1st Cir. 2005)
(explaining that "circumstantial evidence, if it meets all the
other criteria of admissibility, is just as appropriate as direct
evidence and is entitled to be given whatever weight the [fact
finder] deems it should be given") (quoting United States v.
Gamache, 156 F.3d 1, 8 (1st Cir. 1998)).
III.
Having concluded that the evidence was not only
admissible but also sufficient to establish García’s guilt beyond
a reasonable doubt, we AFFIRM the judgment in this case.
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