USA v. Mateo-Mendez

• Decision Date: 05 April 2000
• Docket Number: D,No. 99-50394,MATEO-MENDE,99-50394
• Citation: 215 F.3d 1039
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCISCOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1039

215 F.3d 1039 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCISCO MATEO-MENDEZ, Defendant-Appellant.

No. 99-50394

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 5, 2000--Pasadena, California

Filed June 21, 2000

Leslie S. Daniels (argued), Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Bruce R. Castetter and Kevin J. Kelly (argued), Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding. D.C. No. CR-98-02157-JSR

Before: Stephen Reinhardt and Diarmuid F. O'Scannlain, Circuit Judges, and William W Schwarzer,^* Senior District Judge.

O'SCANNLAIN, Circuit Judge:

We must decide whether a "Certificate of Nonexistence of Record" issued on behalf of the Attorney General was appropriately admitted into a criminal trial for illegal reentry by an alien as evidence of lack of permission despite the fact that the document was not executed by an officer to whom the Attorney General had expressly delegated such authority.

I

On July 6, 1998, an agent of the U.S. Border Patrol who was patrolling near Jamul, California, discovered Francisco Mateo-Mendez ("Mateo") and two other individuals hiding under a large pipe under the road. Border patrol agents at the checkpoint to which Mateo was taken discovered that Mateo had an extensive criminal history, including prior convictions for rape and burglary, and had been previously deported. Mateo admitted at that time that he was an illegal alien and that he had entered without inspection the day before.

One week later, Mateo was indicted on one count of illegal reentry in violation of 8 U.S.C. S 1326. At Mateo's jury trial, the government offered a "Certificate of Nonexistence of Record" ("CNER"), executed on July 23, 1998, by Karen A. Malveaux Joy. Joy certified that she was a "management analyst" in the "Records Services Branch, Office of Records" of the Immigration and Naturalization Service ("INS"), that she was authorized under Section 290(d) of the Immigration and Nationality Act and 8 C.F.R. S 103.7(d)(4)"to certify the nonexistence in the records of the [INS] of an official . . . record pertaining to a specified person or subject," and that she had failed to discover any "evidence of the filing of an application for permission to reapply for admission to the United States" from Mateo. This CNER, the parties agree, bore both the signature of Ms. Malveaux Joy and the seal of the INS. Mateo objected to the admission of the CNER, however, on the ground, among others, that it had not been properly authenticated because the individual who executed the CNER was not among the class of individuals to whom the Attorney General had expressly delegated the authority to make such a certification. The district court overruled Mateo's objections, and Mateo was convicted.

The district court granted a two-level downward departure to Mateo for acceptance of responsibility pursuant to section 3E1.1(a) of the United States Sentencing Guidelines ("U.S.S.G.") because Mateo "timely provide[d] complete information to the government concerning his own involvement in the offense." The district court concluded that this departure left Mateo with an offense level of twenty-two and sentenced Mateo to a prison term of ninety-four months.

Mateo timely appealed both his conviction and his sentence. He argues, first, that the CNER should not have been admitted and thus that there was insufficient evidence to support his conviction of illegal reentry and, second, that the district court erred in failing to reduce his sentence with an additional one-level downward departure under U.S.S.G. S 3E1.1.

II

We first address Mateo's assertion that the CNER should not have been admitted into evidence at his trial. The parties differ on the standard under which this court should review the district court's admission of the CNER. Mateo, citing United States v. Walker, 117 F.3d 417, 419 (9th Cir. 1997) ("The District Court's construction or interpretation of the Federal Rules of Evidence is a question of law subject to de novo review."), contends that the appropriate standard is de novo. The government, however, relies on our decision in United States v. Wood, 943 F.2d 1048, 1055 (9th Cir. 1991), and contends that we should review the district court's ruling only for an abuse of discretion.

In United States v. Owens, 789 F.2d 750, 753 (9th Cir. 1986), rev'd on other grounds, 484 U.S. 554 (1988), we emphasized that the selection of the applicable standard of review is contextual: The de novo standard applies when issues of law predominate in the district court's evidentiary analysis, and the abuse-of-discretion standard applies when the inquiry is "essentially factual."

The district court's construction of the Federal Rules of Evidence is a question of law subject to de novo review. Questions of admissibility of evidence which involve factual determinations, rather than questions of law, are reviewed for abuse of discretion. When a mixed question of law and fact is presented, the standard of review turns on whether factual matters or legal matters predominate. If an "essentially factual" inquiry is present, or if the exercise of the district court's discretion is determinative, then we give deference to the decision of the district court; otherwise, we conduct a de novo review.

Id. (citations omitted); see also United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir. 1991) (quoting Owens).

In the evidentiary ruling that is the subject of the instant appeal, neither party raises a substantial issue pertaining to the existence or characterization of facts, and the district court did not seem to rely on any controverted (or credibly controvertible) facts in rendering its decision. The issue is thus primarily of law, and the standard of review is thus de novo.

A

Mateo was indicted and tried for violating 8 U.S.C. S 1326. That provision makes it a criminal offense punishable by up to ten years in prison for a person, after his removal from the United States, either to be found or to attempt to enter therein "without the permission of the Attorney General." 8 U.S.C. S 1326(b)(3)-(4). "To establish a case of attempted illegal reentry after deportation, the government must prove that the Attorney General had not consented to the alien's application for reentry." United States v. Blanco-Gallegos, _______ F.3d _______, _______, 1999 WL 635749 at *4 (9th Cir. Aug. 23, 1999). In order to carry its burden, the government introduced the CNER.

Mateo argues that the CNER should not have been admitted and thus that the government has failed to introduce sufficient evidence to support his conviction. Mateo specifically objects to the admission of the CNER because it was not properly authenticated pursuant to Fed. R. Evid. 902 and thus was admitted despite failing to comply with the requirements of Fed. R. Evid. 803 (hearsay) and 401 (relevance) and the Confrontation Clause of the Sixth Amendment.

Notwithstanding the variety of his objections, Mateo concedes that his argument hinges in full on the alleged authentication failure. At any rate, it is plain that Mateo's other objections are weightless in the face of the proper admission of the CNER as a public document under seal pursuant to Rule 902.

With regard to the hearsay objection, Rule 803 expressly provides, inter alia, that "a certification in accordance with Rule 902 . . . that diligent search failed to disclose the record" offered for the purpose of "prov[ing] the absence of [the] record" is "not excluded by the hearsay rule." Fed. R. Evid. 803.10. Mateo argues that Rule 803.10 (which requires only compliance with Rule 902) imports requirements of "trustworthiness" and "duty imposed by law " from Rule 803.8 (which addresses not official certifications of the absence of public records but public records themselves). Neither legal authority nor logic supports Mateo's effort to analogize the subjects of Rule 803.10 and Rule 803.8. Mateo relies on two observations: (1) both rules contain the phrase "public record[ ]" and (2) both "are premised on the principles of necessity and trustworthiness." Neither of these observations, however, compels reliance on factors listed under Rule 803.8 in determining the admissibility of documents that satisfy Rule 803.10. The fact that Rule 803.10 shares a phrase with Rule 803.8 cannot sensibly be understood to overwhelm the plain meaning of Rule 803.10, and nothing in the observation that Rule 803.10 derives from concern for "trustworthiness" supports the inference that the documents whose admission that rule allows must be found "trustworthy" on precisely the same bases that Rule 803.8 contemplates. If the CNER satisfies Rule 902, it satisfies ipso facto the exception to the hearsay rule in Rule 803.10.

Regarding Mateo's relevance objection, our decision in Blancos-Gallegos, _______ F.3d at _______, indicating that a CNER from the INS is sufficient evidence to support a jury's conclusion that the Attorney General has not consented to an alien's reentry, rebuts Mateo's argument that the CNER is not "relevant" under Rule 401. That rule indicates that evidence is "relevant" if it enhances the probability "of any fact that is of consequence to the determination of the action." Id. The CNER must satisfy this standard if, as settled in Blanco-Gallegos, it is adequate to support a jury's inference of a fact that is the subject of a sufficiency-of-the-evidence claim.

Regarding Mateo's Confrontation Clause claim, it has not been briefed or argued by Mateo but merely asserted in conclusory terms. "We `will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant's opening brief,' " Riverside-Linden Investment Co. v. Crake, 945...