United States v. Diaz-Lopez
625 F.3d 1198
9th Cir.2010Background
- Diaz-Lopez appeals his conviction for being a removed alien found in the United States without permission under 8 U.S.C. § 1326(a).
- Diaz challenges the admission of documents on Confrontation Clause and hearsay grounds; the government defends admissibility under public records and non-testimonial purposes.
- The challenged items include a warrant of removal, an immigration judge’s order, a fingerprint card, the warning to an alien ordered removed, and an affidavit signed by Diaz.
- The district court admitted these items, and the panel reviews admissibility de novo for Confrontation Clause issues and for abuse of discretion for hearsay rulings.
- The Ninth Circuit previously held warrants of removal and certain immigration-related records are non-testimonial and/or admissible as public records in similar contexts.
- Diaz argues that the affidavit signed by him should have required live testimony from the border patrol agent, not admission via his signature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation and hearsay for warrant of removal | Diaz: warrant is testimonial; violates Confrontation Clause | Diaz: warrant non-testimonial; admissible under Rule 803(8) | Warrant admissible; not testimonial; public record exception applies |
| Admission of immigration judge’s order | Diaz: order is testimonial and hearsay | Diaz: order is a public record, not prepared for litigation | Order not testimonial; admissible as public record; no hearsay error |
| Admissibility of the warning to an alien ordered removed | Diaz: warning contains factual findings; hearsay concerns | Diaz: warning is a standardized form; ministerial observations | Admissible under public records; no testimonial content |
| Fingerprint card as evidence | Diaz: second page contains investigative findings | Diaz: both pages contain ministerial observations; reliable record-keeping | Fingerprint card admissible; observations are ministerial and reliable |
| Affidavit signed by Diaz and adoption of statements | Diaz asserts no adoption; border agent should testify | Diaz adopted the statement by signing, initials, and fingerprint | Affidavit admissible; Diaz adopted the signed statement |
Key Cases Cited
- United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010) (warrants of removal non-testimonial; public records)
- United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir. 2010) (admission of warrants of removability non-constitutional error)
- United States v. Loyola-Dominguez, 125 F.3d 1315 (9th Cir. 1997) (public records exception; warrants as records)
- United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir. 1980) (ministerial observations; admissibility under hearsay rules)
- United States v. Ballesteros-Selinger, 454 F.3d 973 (9th Cir. 2006) (immigration judge memoranda not testimonial; public record form)
- United States v. Orellana-Blanco, 294 F.3d 1148 (9th Cir. 2002) (signature adoption of statements under certain circumstances)
- United States v. Sine, 493 F.3d 1021 (9th Cir. 2007) (public records exception and factual findings context)
- United States v. Boulware, 384 F.3d 794 (9th Cir. 2004) (admission of public records not hearsay)