United States v. Noria

• Decision Date: 18 December 2019
• Docket Number: No. 19-20286,19-20286
• Citation: 945 F.3d 847
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Fernando Ramirez NORIA, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

945 F.3d 847

UNITED STATES of America, Plaintiff - Appellee

v.Fernando Ramirez NORIA, Defendant - Appellant

No. 19-20286

United States Court of Appeals, Fifth Circuit.

FILED December 18, 2019

Paula Camille Offenhauser, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, Catherine Pick, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Kathryn Shephard, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted Appellant Fernando Ramirez Noria of illegally reentering the United States following removal. Noria challenges the district court’s admission of five partial Form I-213s that documented immigration agents’ prior encounters with him. He argues that the admission of the forms violated his Sixth Amendment right to confront the witnesses against him. He also contends the forms were inadmissible hearsay. We conclude that the admitted portions of Noria’s Form I-213s do not offend the Confrontation Clause and that they are admissible under Federal Rule of Evidence 803(8) ’s hearsay exception for public records. Noria’s conviction and sentence are affirmed.

I.

In October 2018, a federal grand jury indicted Noria on one count of unlawfully reentering the United States following removal.¹ Noria pleaded not guilty and proceeded to trial. Among other exhibits, the Government sought to introduce five Form I-213s through the testimony of United States Citizenship and Immigration Service ("USCIS") section chief Christine Pool.

An "I–213 is an official record routinely prepared by an [immigration] agent as a summary of information obtained at the time of the initial processing of an individual suspected of being an alien unlawfully present in the United States."² Put more simply, it "is a record of an immigration inspector’s conversation with an alien who will probably be subject to removal."³ Typically, an I-213 "includes, inter alia , the individual’s name, address, immigration status, the circumstances of the individual’s apprehension, and any substantive comments the individual may have made."⁴ Each of Noria’s five I-213s documented a different encounter with immigration authorities between 2014 and 2018. Four of the forms corresponded to four of the five times Noria had previously been removed from the United States, while the most recent I-213 documented the 2018 immigration encounter that led to Noria’s illegal-reentry prosecution.

Noria moved to exclude the I-213s "unless the agent who questioned [him] is available to testify at trial and the document is redacted to exclude any prior criminal history information." He argued "[i]t would be unreliable hearsay" and a violation of the Confrontation Clause to permit anyone other than the agent who created the document to testify to its contents. Both the court and the Government appeared to agree with defense counsel that because the I-213s contained narrative information about agents’ interviews with Noria, they could not be admitted in full unless each of the interviewing officers testified. So, the Government offered only the first page of each I-213, which showed Noria’s "routine biographical information," including his name and birthplace. Christine Pool, the USCIS witness, would then be able to testify that each of the I-213s belonged to the same person with the same alien number.

Conceding that the information was hearsay, the prosecutor argued that it was admissible under Federal Rule of Evidence 803(8) ’s exception for public records. The court agreed and permitted the Government to introduce the redacted first page of each of the five I-213s. Pool testified that each form was created by an immigration agent shortly "after an encounter with Mr. Noria" and "kept in the regular course of ... business of the activities of the Department of Homeland Security and USCIS." Each contained, among other information, Noria’s name, basic biometric data, aliases, country of citizenship (Mexico), birthdate, birthplace (Tamaulipas, Mexico), and A-file number.⁵ All but the most recent also contained Noria’s photograph and fingerprints. Pool testified that taken together, the biographical information in the I-213s "show[ed] Noria as being a ... citizen of Mexico," not of the United States. Pool also certified that Noria had not applied for permission to reenter the United States. On cross examination, Pool testified that she had not personally prepared any of Noria’s I-213s or spoken to the agents who prepared them, but that she had experience creating I-213s in the past.

The jury also heard the testimony of George Cortes, a supervisory deportation officer for the Department of Homeland Security ("DHS"), who explained how Noria had been located and selected for prosecution. Cortes had met with Noria in person approximately six months before trial, and he was able to identify Noria in the courtroom. Finally, DHS fingerprint examiner Raymond Miller testified that the fingerprints on Noria’s prior warrants of removal and the fingerprints on the I-213s were made by the same person. In addition to witness testimony, a Certificate of Nonexistence of Record, two immigration detainers, and the IJ’s initial removal order all identified Noria as a citizen of Mexico. The jury found Noria guilty, and the district court imposed the statutory maximum sentence of 24 months.⁶ This appeal followed.

II.

A.

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."⁷ In Crawford v. Washington , the Supreme Court held that a defendant’s confrontation right is violated when the prosecution introduces "testimonial statements of a witness who did not appear at trial," unless that witness "was unavailable to testify, and the defendant had a prior opportunity for cross-examination."⁸ Importantly, only testimonial statements "cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause."⁹ Without articulating a comprehensive definition, the Crawford Court described "testimony" as "typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact."¹⁰ This includes, "at a minimum[,] prior testimony at a preliminary hearing, before a grand jury, or at a former trial," as well as "police interrogations."¹¹

Following Crawford , the Supreme Court has explained that "the basic objective of the Confrontation Clause ... is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial."¹² Thus, the high Court has adopted the "primary purpose" test for determining whether a statement is testimonial in nature.¹³ To qualify as "testimonial" under this standard, "a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution."¹⁴ Thus, business and public records are generally not testimonial because they are "created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial."¹⁵ However, if a public record is "prepared specifically for use at ... trial," then it is testimonial and therefore inadmissible absent its creator’s testimony.¹⁶

B.

In general, the rule against hearsay bars the admission of any "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."¹⁷ However, the general rule is littered with exceptions, including one for public records. Federal Rule of Evidence 803(8) provides that public records "are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness." A "record or statement of a public office" qualifies under this exception if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

The public-records exception "is designed to permit the admission into evidence of public records prepared for purposes independent of specific litigation."¹⁸ It is based on the assumption that public documents "recording routine, objective observations" are free of "the factors likely to cloud the perception of an official engaged in ... observation and investigation of crime."¹⁹ Instead, "[d]ue to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter ... such records are [considered] inherently reliable."²⁰

Rule 803(8)(A)(ii) ’s prohibition against public records of "matter[s] observed by law-enforcement personnel" in criminal cases does not prevent the admission of all reports prepared by law enforcement officers. Instead, the Court distinguishes "between law enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the arguably more subjective endeavor of investigating a crime and evaluating the results of that investigation."²¹ The former are admissible, while the latter are not.²²

C.

Noria preserved his confrontation and hearsay claims by objecting to the admission of each I-213 at trial. We "review [an] alleged violation of the Confrontation Clause de novo, subject to a harmless error analysis."²³ We review the district court’s hearsay ruling for abuse of discretion, also subject to a harmless error analysis.²⁴

III.

Althoug...