U.S. v. Earle

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Lynch
• Citation: U.S. v. Earle, 488 F.3d 537 (1st Cir. 2007)
• Decision Date: 06 June 2007
• Docket Number: No. 06-1727.,06-1727.
• Parties: UNITED STATES of America, Appellee, v. Clarence L. EARLE, a/k/a Eric Allen, a/k/a Theodore Wilson, a/k/a Lemont Tippet, a/k/a Robert Preval, Defendant, Appellant.

488 F.3d 537

UNITED STATES of America, Appellee, v. Clarence L. EARLE, a/k/a Eric Allen, a/k/a Theodore Wilson, a/k/a Lemont Tippet, a/k/a Robert Preval, Defendant, Appellant.

No. 06-1727.

United States Court of Appeals, First Circuit.

Heard February 6, 2007.

Decided June 6, 2007.

Charles W. Rankin, with whom Jonathan Harwell and Rankin & Sultan were on brief, for appellant.

Seth P. Berman, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

In November 2005, a jury convicted Clarence L. Earle on one count of illegal reentry of a deported alien, in violation of 8 U.S.C. § 1326. The district court sentenced Earle to 78 months of imprisonment, 36 months of supervised release, and a $100 special assessment.

On appeal, Earle argues there were two trial errors: (1) that his right to confrontation under the Sixth Amendment, as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), was violated by the admission at trial of a Certificate of Nonexistence of a Record (CNR), and (2) that the district court erred in refusing to instruct the jury that it must find that his prior deportation was lawful beyond a reasonable doubt. The CNR was issued by the Bureau of Citizenship and Immigration Services (CIS), within the Department of Homeland Security (DHS), and it certified that a search of the agency's files demonstrated that there was no record that Earle had obtained consent from the Attorney General or the Secretary of DHS to reapply for admission into the country after having been deported.

Earle also argues there were two sentencing errors: (1) that the district court erred in imposing a 16-level enhancement under the Sentencing Guidelines for a prior deportation after conviction of a "crime of violence," and (2) that his sentence was in excess of the applicable statutory maximum because the fact that he had previously been convicted of an aggravated felony was not found by the jury beyond a reasonable doubt.

We affirm Earle's conviction and his sentence.

I. Facts

The defendant, a citizen of Jamaica, was arrested and detained by the Boston Police Department on November 6, 2003. The defendant was present in the United States despite having been deported twice. On February 12, 2004, he was transferred into federal custody. The following day, he was fingerprinted.

The defendant's first deportation from the United States occurred on January 3, 1991. He was then using the name Clarence Earle, although he has used a number of different names over time. As a regular part of the deportation process, Earle's fingerprint was placed on the 1991 Warrant of Deportation.

Before his first deportation, Earle signed an affidavit stating that he had arrived in the United States sometime in 1986 on a passenger ship, and that he had entered the country illegally without ever having been "issued any documents from the United States Immigration Service." Earle was fingerprinted on the same day that he signed this affidavit.

The defendant attempted to reenter the United States from Canada on September 24, 1992. He presented a Massachusetts identification card bearing the name Lemont Tippet. Fingerprints taken from "Tippet" by the Immigration and Naturalization Service¹ matched those taken from the defendant in February 2004. The defendant was again deported on July 10, 2002, under the name Clarence Earle. Earle's fingerprint was placed on the 2002 Warrant of Deportation.

This case concerns Earle's presence in the United States following the 2002 deportation and the resulting charges against him under 8 U.S.C. § 1326. Section 1326 criminalizes the reentry of any alien who has been deported from the United States unless "prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission."

At trial, the government produced a fingerprint expert who testified that the fingerprints taken from Earle in February 2004 matched those on the 1991 and 2002 Warrants of Deportation, as well as other documents which were found in the defendant's Alien File, or "A-file," at the INS.²

The government also presented two types of evidence showing that Earle had never applied for or received permission from the Attorney General to reenter the United States: in-person testimony and the CNR. Joanne Sassone, a Records Information Services Officer for CIS in Boston, testified that she was responsible for overseeing CIS employees who maintained A-files and updated corresponding computer databases. She explained that an alien who has been deported must file a Form I-212 in order to apply for reentry to the United States. Such an application, if it were made, would appear in the alien's A-file. A record of the filing fee and the final communication regarding the I-212 application would also be entered in various computer indices. Sassone testified that she personally had reviewed Earle's entire A-file and the computer indices, and that there was no document or record that Earle had ever filed a Form I-212. Nor was there any document or record that Earle had ever received permission to reenter the United States.

On cross-examination, Sassone stated that it was possible for an alien to have more than one A-file (for example, when the alien uses different names), and that multiple files would be consolidated if such a discovery were made. Earle's file had undergone such consolidation. Sassone also confirmed that four pages that pertained to another person had been misfiled in Earle's A-file. Those documents belonged to a different individual who had a deportation action taken against him at a similar time as Earle. When Sassone discovered that several pages had been misfiled in Earle's file, she obtained the A-file of the other individual and searched for any documents concerning Earle. There were none.

Defense counsel also asked Sassone about employee staffing at the five document service centers maintained by CIS.³ Sassone testified that some employees worked for private contractors, rather than for the government. She also confirmed that, several years earlier, employees at a district office in Los Angeles had improperly shredded thousands of immigration-related documents. She was not aware of any similar events at the Vermont service center, which covers the New England area.

On redirect, Sassone testified that even if an alien's I-212 application were somehow misfiled or destroyed, there would still be evidence in the computer indices or in the A-file of the application having been submitted. She reiterated that she had searched the relevant computer indices and had found no notation that Earle had filed an I-212 application.

The government also introduced into evidence, over defense counsel's objection, a CNR signed by Ruth E. Jones, the Chief of the Record Services Branch, Office of Records, CIS. The document stated that

after a diligent search relating to . . . Clarence Lynval Earle, . . . no evidence is found to exist in the records that the defendant obtained consent before March 1, 2003 from the Attorney General . . . to reapply for admission in the United States; and no evidence is found to exist in the records that the defendant obtained corresponding consent after February 28, 2003 from the Secretary of [DHS].

The district court ruled that the evidence was admissible under Federal Rule of Evidence 803(10). Jones did not testify at Earle's trial.

Sassone testified that she did not have personal knowledge of who prepared the CNR for Earle's case. She did describe her understanding of the practice of preparing a CNR. She testified that "[a]ll the A files must be reviewed and all applicable computer indices must also be reviewed and searched before [a CNR] can be prepared." She also stated that Jones, a senior official at CIS, would not have personally reviewed Earle's A-file or searched the computer indices. Sassone stated that whoever performed these tasks to prepare the CNR would have undertaken the same searches that Sassone herself had carried out when she had independently concluded that Earle had not applied for or received permission to reenter the United States.

The defense in this case was that the government had not met its burden of proof beyond a reasonable doubt that Earle had not obtained the permission of the Attorney General to reapply for admission into the country. In its closing, the defense conceded that "there really is no dispute that Mr. Earle is an alien . . . [or] that Mr. Earle was previously deported . . . [or] that in February 2004, Mr. Earle was found in the United States." Defense counsel stressed that Jones was not made available to testify to the accuracy of the CNR; that the government had not provided any printouts from its searches of the relevant computer indices; and that there were uncertainties raised by the history of filing and retention problems at CIS's document service centers.

The jury returned a guilty verdict. At sentencing, the district court imposed a 16-level enhancement under U.S.S.G. § 2L1.2 for a prior deportation after conviction of a crime of violence — namely, assault and battery with a dangerous weapon. The district court sentenced Earle to 78 months, at the upper limit of the applicable Guidelines range. Earle will likely be deported after serving his sentence.

II. Asserted Trial Errors

A. Confrontation Clause Challenge

Before Crawford effected a change in the law concerning Confrontation Clause challenges, this court in United States v. Ventura-Meléndez, 275 F.3d 9 (1st Cir.2001), rejected a Confrontation Clause challenge to the admission of a CNR. Id. at 15-16 (concluding that CNR demonstrated "particularized guarantees...