United States v. Roberto Lopez
2014 U.S. App. LEXIS 15394
| 9th Cir. | 2014Background
- Lopez, a Mexican national, was arrested near Lukeville, AZ in Feb 2010, processed in Tucson, and allegedly removed at Nogales on Feb 11, 2010; he was later arrested in Los Angeles and charged under 8 U.S.C. § 1326 for being an alien found in the U.S. after removal.
- At trial the government introduced a Form I-296 Verification of Removal (Ex. 12) from Lopez’s A-File, showing name, photo, signature, fingerprint, departure date, port (Nogales), and officer signatures (illegible).
- Key contested element at trial was physical removal; the government’s custodian (Officer Oki) authenticated the A-File document and a fingerprint expert matched the print to Lopez.
- Border Patrol Agent Harris (not present at the alleged removal and not qualified as an expert) testified on redirect that based on the Verification of Removal he believed Lopez had been deported; defense did not contemporaneously object to that opinion.
- The district court denied a Rule 29 motion and a pretrial motion to dismiss challenging the removal order; it ruled an underlying removal order need not be proved when physical removal is shown. Lopez was convicted; he appealed raising statutory-element, evidentiary (Confrontation/Hearsay and lay opinion), sufficiency, and Rule 33 arguments.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether §1326 always requires proof of an underlying removal/deportation order | §1326’s clause “while an order ... is outstanding” applies to the whole subsection; thus a removal order is an element in all cases | The statute requires an outstanding order only if the alien “departed” voluntarily; physical deportation/removal suffices where the alien “has been ... deported or removed” | Court held no: an order is required only when the alien “departed” while an order was outstanding; proved physical removal suffices otherwise |
| Admissibility of Verification of Removal (I-296) — Confrontation and hearsay | Verification is testimonial or, if not, falls within the law-enforcement exception and is inadmissible hearsay | Verification is nontestimonial (like a warrant of removal) and admissible under public-records exception | Court held I-296 is nontestimonial and admissible under Fed. R. Evid. 803(8); properly authenticated by A-File custodian |
| Admissibility of Agent Harris’s lay opinion that Lopez was deported | Harris lacked personal knowledge and foundation; opinion violated Rules 602 and 701 | Harris’s training/experience sufficed to give a lay opinion about the form and removal | Court held admitting Harris’s opinion was clear error (violated Rules 602/701) but reviewed for plain error and found no reversible prejudice |
| Sufficiency of evidence & effect of erroneous opinion on substantial rights | Without Harris’s opinion and without an introduced removal order, the Verification alone was insufficient; error affected outcome | The Verification, fingerprint match, and A-File testimony provided legally sufficient proof of physical removal; Harris’s opinion was cumulative | Court held evidence (I-296 + fingerprint + custodian testimony) was sufficient; no reasonable probability the opinion changed the verdict |
Key Cases Cited
- United States v. Havelock, 664 F.3d 1284 (9th Cir.) (statutory interpretation reviewed de novo)
- United States v. Gonzalez-Villalobos, 724 F.3d 1125 (9th Cir.) (model jury instruction and §1326 elements)
- United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir.) (warrant of removal is nontestimonial and admissible to prove physical removal)
- United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir.) (reaffirming warrant-of-removal Confrontation analysis)
- United States v. Estrada-Eliverio, 583 F.3d 669 (9th Cir.) (authentication of A-File documents under Fed. R. Evid. 901)
- United States v. Nevils, 598 F.3d 1158 (9th Cir.) (Jackson sufficiency standard applied in two-step analysis)
- Jackson v. Virginia, 443 U.S. 307 (U.S.) (standard for sufficiency of the evidence)
- Marcus v. United States, 560 U.S. 258 (U.S.) (plain-error review framework)