United States v. Rebon-Delgado, 71-3015.

• Decision Date: 18 August 1972
• Docket Number: No. 71-3015.,71-3015.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco REBON-DELGADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.2d 11 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Francisco REBON-DELGADO, Defendant-Appellant.

No. 71-3015.

United States Court of Appeals, Ninth Circuit.

July 13, 1972.

Rehearing Denied August 18, 1972.

Jo Ann D. Diamos, Tucson, Ariz., (argued), Tom Karas, Phoenix, Ariz., for defendant-appellant.

Sarah Bailey, Asst. U. S. Atty. (argued), James N. Wilkes, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before MERRILL and BROWNING, Circuit Judges, and ZIRPOLI,^* District Judge.

PER CURIAM:

Appellant was convicted for having been found in the United States after being deported. 8 U.S.C. § 1326. We affirm.

1. Appellant argues that certain documentary evidence and admissions received against him were tainted by an illegal stop and interrogation that did not meet constitutional standards. Appellant did not object to the evidence on this ground in the trial court. At best, appellant's point is arguable on the present record, and we cannot assume that the record reflects the circumstances justifying the stop as fully as it would have had the government had notice of the challenge. "The contentions he relies on to support this argument involve issues of fact and law which were neither raised, developed, nor resolved in the trial court. We therefore need not, and do not, reach this question." United States v. Read, 411 F.2d 582, 584 (9th Cir.1969); accord: United States v. Marsh, 451 F.2d 219, 220 (9th Cir.1971); Spahr v. United States, 409 F.2d 1303, 1306 (9th Cir. 1969).

2. Appellant argues that certain documents from the official file of the Immigration and Naturalization Service bearing his name were improperly admitted because the government did not prove that he was the person to whom the documents related. However, "assuming that petitioner is correct in asserting that identity of names was all that was proved, this was sufficient to prove identity of the person, where no effort was made to rebut such proof." Chung Young Chew v. Boyd, 309 F.2d 857, 867 (9th Cir. 1962); see also Bayless v. United States, 381 F.2d 67, 74 (9th Cir. 1967) No such evidence was offered.

3. Appellant's admission that he had visited Nogales, Sonora, Mexico, for a few hours during the day on which he was apprehended was rendered trustworthy by a number of corroborating circumstances, see United States v. Allen, 455 F.2d 509 (9th Cir. 1972). Appellant made the same admission to two different officers at different times and places. The time, place, and other circumstances surrounding appellant's initial detention made truth of the admissions likely. Finally, appellant had in his possession a police citation, written in Spanish, purportedly issued against appellant in Nogales, Mexico, on that date. This document, voluntarily produced by appellant when asked for identification (accepting the government's testimony), was properly admitted without formal authentication as a foreign document, not as proof of the facts it recited, but solely as an object in appellant's possession that tended to corroborate his admission that he had been in Mexico.

4. Appellant's contention that the trial court should have held a hearing on the voluntariness of the admission made by appellant to an Immigration investigator is rejected on the ground that it was not raised below. See United States v. Everett, 457 F.2d 813, 814 (9th Cir. 1972).

5. Assuming that Rule 86 of the district court's local rules applied to this admission, the trial court could excuse noncompliance with the rule. See United States v. Acosta-Garcia, 448 F.2d 395 (9th Cir. 1971) Rule 86 was then numbered Rule 42; United States v. Barnes, 431 F.2d 878 (9th Cir. 1970). Since the testimony regarding this admission was elicited not by the prosecution but by the trial judge, waiver of the rule must be assumed.

6. The government counsel's comment in closing argument that there was "no evidence" contrary to the government's proof on certain issues was not a comment on appellant's failure to testify within Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). In that case, "No one but appellant . . . could have contradicted the government witness." Id. at 227. Here, independent evidence could easily have been available. Leathers v. United States, 250 F.2d 159, 165-166 (9th Cir. 1957).

7. Appellant's contention that a 1960 deportation warrant endorsed to indicate actual deportation was improperly admitted because it was "evidence of another crime" is without merit. Deportation is not a crime. Cf. United States v. Ramirez-Aguilar, 455 F.2d 486, 487 (9th Cir. 1972).

8. The jury was instructed that when a warrant of deportation is outstanding and the accused leaves the United States of his own accord, he is considered as having been deported. See 8 U.S.C. § 1101(g). Appellant did not object to the instruction on any ground. He contends, now, however, that as applied to appellant's brief visit to Mexico, this interpretation of 8 U.S. C. § 1101 (g) denies appellant equal protection of the law in view of the interpretation given to 8 U.S.C. § 1101(a) (13) in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). It would be particularly inappropriate to pass upon this contention raised for the first time on appeal. The government also offered uncontradicted evidence that appellant had been deported in 1960, and might well have...