U.S. v. Orellana-Blanco

• Decision Date: 26 June 2002
• Docket Number: No. 01-10045.,01-10045.
• Citation: 294 F.3d 1143
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Santos Renan ORELLANA-BLANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

294 F.3d 1143

UNITED STATES of America, Plaintiff-Appellee, v. Santos Renan ORELLANA-BLANCO, Defendant-Appellant.

No. 01-10045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2001.

Filed June 26, 2002.

Jon M. Sands, Assistant Federal Public Defender, Phoenix, AZ, for the appellant.

Joan G. Ruffennach, Assistant United States Attorney, Phoenix, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, District Judge, Presiding. D.C. No. CR-99-01022-RGS.

Before: BRUNETTI, KLEINFELD, and THOMAS, Circuit Judges.

KLEINFELD, Circuit Judge.

This criminal case requires application of the hearsay rule and the confrontation clause to a law enforcement memorandum of an interview.

Facts

Appellant Santos Orellana-Blanco was convicted after a jury trial of marriage fraud¹ and making a false statement on an immigration document.² The theory of the prosecution's case was that he fraudulently married a woman, Beatrice Boehm, to evade restrictions in the immigration laws, and that he lied in his sworn statement and other papers by stating that he was married to her and lived with her when the marriage was actually a sham.

The government didn't charge Boehm, Orellana-Blanco's putative wife. Instead it used her as its star witness against him. She testified that the marriage was, as charged, a sham, and was intended as such by both of them from the beginning. Orellana-Blanco testified that he fully intended to live with Boehm as husband and wife when he married her, did so to the maximum extent that she would allow, and was ultimately frustrated in his attempt to live with her by her leaving him and taking a job elsewhere after cancer surgery made him impotent. At least one of these people was lying, and the jury was not too enthused about Boehm. It sent out a note during deliberations asking "Why wasn't Bobby [Beatrice Boehm] charged with fraud concerning her part in falsifying the records?"

This appeal challenges admission of an exhibit that the government used to prove Orellana-Blanco lied under oath about his marriage. The exhibit purports to be a "Record of Sworn Statement" signed by Orellana-Blanco, in connection with a "Form I-130, Petition For Alien Relative." In the document Orellana-Blanco says he lives with his wife, he is married to her, they lived together before the marriage at the same address (his wife's house), and they've lived together continuously since the marriage. Orellana-Blanco's own testimony at trial established that he had not lived continuously or at all with Boehm, in the sense of regularly sleeping in the same residence. Therefore if the exhibit came in, as it did, then his conviction was nearly assured, at least on the false statement count, and his credibility was severely undercut on the sham marriage count.

Orellana-Blanco came illegally to the United States in 1990 from El Salvador. He worked regularly, making fast food for a chain restaurant, painting airplane parts, and doing other jobs. His membership in a class protected under an injunction in an unrelated civil class action suit kept him from being deported.

In 1994, Orellana-Blanco married Beatrice Boehm at the county courthouse in Prescott, Arizona. Boehm testified that she agreed to marry him, without ever having seen him before, to help legalize him and because Orellana-Blanco's brother and sister-in-law agreed to paint her truck, which she could not otherwise afford. She testified that they met in the car on the way to the ceremony, got married (with a borrowed ring), and had dinner with the brother and sister-in-law (the witnesses). Then Orellana-Blanco dropped her off, alone, at her house. She conceded that she wasn't paid money to marry Orellana-Blanco. She testified that they had agreed they would divorce in three years, and the reason they had not was that he refused because the immigration rules turned out to require five years, and she didn't have the money to hire a divorce lawyer.

Orellana-Blanco's and Boehm's testimony conflicted on the whole course of the relationship, including whether they had ever consummated the marriage or had any sexual relationship at all. He said he'd met Boehm years before the marriage, at his brother's house, and saw her frequently thereafter. Boehm said they met on the day of the wedding. Orellana-Blanco testified that before the marriage they did such things as watch movies and go to dinner together, he helped her clean her house, they drank together, she would tell him about her problems with her son, and they had sexual relations before marriage, sometimes outdoors, sometimes at her house after watching movies if Boehm's son wasn't there. She testified that none of this had happened, except that Orellana-Blanco had helped her clean her house and lay carpet, and had mowed her lawn once. She said she never had sexual relations with him before or after marriage.

Both also testified that they never lived together. Orellana-Blanco said Boehm wouldn't let him move in, because she was hiding the marriage from her son for the first year, and after that she was still uncomfortable because of her son and asked Orellana-Blanco "to give her some time." Boehm testified that the reason they never lived together was because the marriage was intended to be a sham.

They established a joint bank account, and Boehm filed tax returns as a married person. They exchanged gifts. Orellana-Blanco also said he gave Boehm money for household expenses, which Boehm did not deny.

Three years after the marriage, Orellana-Blanco was hospitalized for surgery to remove a large cancerous tumor in his colon. The surgeon testified that he remembered talking to Boehm during this period and she was "appropriately concerned, as anybody would be if their close family member had a major operation." Boehm testified that she was at the hospital when Orellana-Blanco had his surgery and visited him once after he was released.

According to Orellana-Blanco, the marriage, such as it was, deteriorated when Boehm objected to his having withdrawn money from their joint account, although he had put money in. He testified that after his surgery, in which seventy percent of his stomach and intestine were removed, and his year of chemotherapy following it, he could no longer perform sexually, and that changed their relationship. Boehm moved to New Mexico for a new job living with a blind rancher and his senile wife and said she wanted a divorce.

The exhibit at issue, Exhibit 3, was generated in 1998, after the surgery but before Boehm moved to New Mexico. The INS interviewed Orellana-Blanco and Boehm as part of the process by which Orellana-Blanco hoped to receive his "green card," or permanent resident alien status. Boehm had already signed an I-130 Petition for Alien Relative on Orellana-Blanco's behalf, in which she swore they were married. An INS agent testified that "at a certain stage of the process, the husband and wife, in these cases, are brought in for separate interviews." Boehm and Orellana-Blanco drove together to Phoenix for their interview. Boehm testified that on their drive down to Phoenix, they agreed on what lies to tell, and she testified, she told them under oath in her separate interview. Her signed statement under oath was not introduced into evidence.

Orellana-Blanco was interviewed by INS Adjudications Officer Brett Kendall. But Officer Kendall did not testify at the trial. There was testimony that he was on leave and was living with his parents, but the government did not produce him as a witness. Instead it offered what purported to be a sworn statement by Orellana-Blanco, described above, through the testimony of another INS agent, Adjudications Officer Radke. But Officer Radke testified that he wasn't in the room for the whole interview. The reason he was in there at all was that Kendall called him in to translate from English to Spanish and Spanish to English, because Kendall felt that his own "knowledge of the Spanish language was not adequate to find out what he needed to find out." Officer Radke gave Orellana-Blanco the oath in Spanish, translated Officer Kendall's questions, and translated Orellana-Blanco's answers when given in Spanish (Orellana-Blanco gave some answers in each language). The interview was not taped. Orellana-Blanco testified that Radke used a Spanish English dictionary during the interview, but Radke testified that he didn't. Officer Radke testified that "[p]art way through the interview Officer Kendall was satisfied that the applicant could understand English, and at that point I did not participate in the interview anymore, other than to come in to witness the signature."

The form shows answers, apparently written by Officer Kendall, usually of just a word or two, such as "11/03/47 Victoria Texas" in answer to "What is your spouse's date and place of birth?" Because Kendall did not testify, and Radke was not there for the whole interview, there is no direct evidence on whether the answers were a verbatim record of what Orellana-Blanco said, or Kendall's formulation of what he understood Orellana-Blanco to have said. Officer Radke conceded that the answers were not verbatim and would not reflect questions by Orellana-Blanco, such as his asking what a question meant. The statement is signed by Orellana-Blanco and witnessed by Officer Kendall and Officer Radke. Orellana-Blanco testified that he and the INS officers sometimes used Spanish, sometimes English, and "really we didn't quite understand each other." Officer Kendall wasn't called as a witness, so he didn't testify to the contrary, and Officer Radke wasn't at all of the interview. Officer Radke did not see Officer Kendall read the form with the answers back to Orellana Blanco, and testified that "generally it's not read." Although Orellana-Blanco testified that he signed the form, no one asked him whether he read it before he...