United States v. Jasso, 21-40790

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: PER CURIAM.
• Parties: United States of America, Plaintiff-Appellee, v. Rolando Jasso, Defendant-Appellant.
• Docket Number: 21-40790
• Decision Date: 10 February 2023

United States of America, Plaintiff-Appellee,
v.
Rolando Jasso, Defendant-Appellant.

No. 21-40790

United States Court of Appeals, Fifth Circuit

February 10, 2023

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:20-CR-1143-1

Before STEWART, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM. ^[*]

Rolando Jasso appeals from his conviction for illegal reentry after removal. To prove Jasso was a native and citizen of Mexico, the Government offered into evidence a Mexican birth certificate issued seven years after Jasso's birth. The district court admitted the certificate over objection. The jury found Jasso guilty. We AFFIRM.

1

FACTUAL AND PROCEDURAL BACKGROUND

Rolando Jasso was charged in a one-count indictment with illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b). The complaint and indictment alleged Jasso was a native and citizen of Mexico, had been removed from the United States in 1999, and had been found in Texas without proper documentation in 2020. The Government's evidence included Jasso's Mexican birth certificate that was part of his alien file ("A-file"). Jasso, though, contended he was born in 1971 in Los Arrieros, Texas, near the Mexican border.

Jasso filed a motion in limine seeking to bar the introduction of the Mexican birth certificate and a certified English translation.^[1] He objected to the authenticity of the document and contended the birth certificate was inadmissible hearsay. At a pretrial conference, his counsel relied on the fact that Jasso's birth was not registered contemporaneously. Jasso's father allegedly obtained the birth certificate in 1978 while the family prepared to relocate to the United States, as his father believed it would be easier to obtain a birth certificate in Mexico rather than in Jasso's alleged birthplace in Texas. Counsel argued the birth certificate was inadmissible hearsay and inherently unreliable because it was not prepared on or near Jasso's 1971 birthdate.

The Government argued the birth certificate was admissible under hearsay exceptions as an ancient document, a public record, or a record of vital statistics. See FED. R. EVID. 803(16), 803(8), 803(9). The district court admitted the birth certificate pursuant to Federal Rule of Evidence 803(9) as a public record of vital statistics.

2

At trial, the Government introduced evidence to show Jasso had no legal status in the United States when he was apprehended in October 2020. The Government introduced the Mexican birth certificate as well as several statements by Jasso saying he was born in Mexico and was a Mexican citizen. The Government argued in its rebuttal that Jasso had made numerous inconsistent statements about his birthplace and citizenship to authorities and used false names on several occasions. Further, no birth certificate from Starr County, Texas, could be found.

The defense introduced the testimony of Jasso's mother, Magdalena Jasso. She testified that, in 1971, she worked as a housekeeper for a midwife in Los Arrieros and that Jasso was born at her employer's home. Magdalena testified she did not register Jasso's birth in Texas because she did not know how to do so. She claimed her husband decided to obtain Jasso's birth certificate in Mexico as part of the family's preparations to move to the United States. She stated she did not tell Jasso he was born in Texas until 1997.

Jasso requested a jury instruction that referred to his claim of being born in Texas and that emphasized the Government had the burden of proving beyond a reasonable doubt he was not born in the United States. The Government objected to the inclusion of the burden of proof language. The district court offered to include only the part of the proposed instruction that Jasso argued he was born in Texas and was, therefore, a United States citizen. Defense counsel did not agree, and the proposed instruction was not given to the jurors. The jury found Jasso guilty.

The district court sentenced Jasso to time served and three years of supervised release. Jasso filed a timely notice of appeal.

3

DISCUSSION

Jasso's appellate arguments all concern the Mexican birth certificate: (1) the birth certificate was inadmissible hearsay and the Government, therefore, therefore did not meet its burden to prove Jasso was born in Mexico; (2) the birth certificate did not fall under any of the claimed hearsay exceptions; and (3) the birth certificate was inherently untrustworthy because it was made seven years after Jasso's birth. Finally, Jasso challenges the district court's decision to refuse his proposed jury instruction regarding the burden of proof and his assertion that he was born in Texas.

Generally, this court reviews a district court's evidentiary rulings for an abuse of discretion, subject to harmless error review. United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). "A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence." Id. (quotation marks and citation omitted). A different standard of review applies, though, if the claimed error was waived or forfeited. United States v. Rodriguez, 602 F.3d 346, 350-51 (5th Cir. 2010). Waived error occurs when a defendant knows of an issue and chooses to forgo or abandon it and is thus unreviewable. Id. Forfeited error occurs when a right is not timely asserted and is reviewed for plain error only. Id.

To preserve an evidentiary issue for appellate review, a party must timely object to the admission of the evidence and specifically state the grounds for the objection. FED...