Argued and Submitted, Pasadena, California: October
Appeal from the United States District Court for the Central District of California. D.C. No. 2:11-cr-00688-JAK-1. John A. Kronstadt, District Judge, Presiding.
Davina T. Chen (argued), Law Office of Davina T. Chen, Glendale, California, for Defendant-Appellant.
L. Ashley Aull (argued), Office of the United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
Before: Harry Pregerson, Kim McLane Wardlaw, and Richard C. Tallman, Circuit Judges. Opinion by Judge Wardlaw.
WARDLAW, Circuit Judge:
Roberto Lopez Francisco (" Lopez" ) appeals his conviction following a jury trial for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We agree with the district court that 8 U.S.C. § 1326 does not require the government to prove the existence of an order of deportation as an element of the crime in cases where the defendant has been deported or removed. We affirm Lopez's conviction despite the erroneous admission of lay opinion testimony by a key government witness because the remaining evidence of physical removal, including Lopez's Verification of Removal (Form I-296), is legally sufficient to support the jury's verdict. We also conclude that the district court did not abuse its discretion in denying Lopez's motion for a new trial.
On February 9, 2010, Lopez, a native and citizen of Mexico, was arrested outside Lukeville, Arizona and transferred to the Border Patrol Station in Tucson for processing. Lukeville is on the United States--Mexico border. The following day, Border Patrol Agent Craig Harris interviewed and fingerprinted Lopez at the
Tucson station. On February 11, 2010, according to the government, Lopez was transported by bus to the Nogales, Arizona port of entry and removed from the United States across the border to Mexico. On June 22, 2011, an ICE officer arrested Lopez outside his home in Los Angeles.
During the one-day trial, the government introduced as Exhibit 12 a Notice to Alien Ordered Removed/Departure Verification (Form I-296) from Lopez's A-File. The form is used to record the removal of an individual from the United States during the expedited removal process. This form has two parts. The top half of the form, the " Notice to Alien Ordered Removed," warns that if the removed alien attempts to enter, enters, or is found in the United States he can be prosecuted for a felony under 8 U.S.C. § 1326 and could face severe penalties. The officer who serves this warning enters his signature on that portion of the form. In Lopez's case, Agent Harris served the warning. Agent Harris's name is typed on the signature line next to his signature along with his title, Border Patrol Agent, and his office location, Tucson, Arizona.
The bottom half of the form, the " Verification of Removal," is the portion designed to record the physical removal of the alien across the border. The verification of removal includes the following information about the alien's departure: departure date, port of departure, manner of departure, and signature and title of the verifying officer. In addition, it bears a photograph of the alien removed, his signature, his right index fingerprint, and the signature of the official taking that fingerprint. Here, all portions of the form were completed. Thus, Lopez's name, photograph, signature, and fingerprint appear on his Verification of Removal. The departure date is listed as February 11, 2010, the manner of departure is described as " afoot," and the port of departure is identified as Nogales, Arizona. The form bears signatures from two officers: a border patrol agent who verified the removal and the official who took Lopez's fingerprint. Neither of these signatures is legible, however, and none of the government's witnesses could identify the officers who signed the form.
Agent Harris was the government's key witness to Lopez's physical removal, an element of the offense the government is required to prove beyond a reasonable doubt. Removal was the only element seriously contested at trial. Agent Harris testified that the alien's fingerprint is
placed on the verification of removal in Nogales as the alien " step[s] off the bus [from Tuscon] and right before [he is] removed back . . . to Mexico." After the alien is fingerprinted, he is walked to the border. On cross, defense counsel questioned Agent Harris about his inability to decipher the signatures on Lopez's Verification of Removal or otherwise identify the agents who signed it. On redirect, the prosecutor asked Agent Harris, " based upon your training and experience by looking at [Lopez's Verification of Removal,] do you believe he was actually deported from the United States?" Agent Harris responded, " Yes. I believe he was." It is undisputed that Agent Harris was not at the Nogales border when Lopez was removed; nor was Harris qualified as an expert under Federal Rule of Evidence 702.
Although Lopez unsuccessfully challenged the validity of his removal order in a pre-trial motion to dismiss the information, the government did not introduce the order of removal (Form I-860) at trial. At the close of the government's case, Lopez moved for a directed verdict under Federal Rule of Criminal Procedure 29 in part because the government failed to introduce a removal order. The district court denied the motion, ruling that an order of deportation or removal is not a necessary element of a Section 1326 offense so long as evidence of physical removal has been introduced.
Lopez raises several issues: whether 8 U.S.C. § 1326 requires proof of an order of removal or deportation as an element of the offense when the defendant has been deported or removed; whether the Verification of Removal and Agent Harris's opinion testimony that Lopez was in fact deported were properly admitted; and, if not, whether those errors require us to reverse Lopez's conviction and vacate his sentence.
The district court ruled that 8 U.S.C. § 1326 does not require the government to prove that an order of removal or deportation was issued where the alien has been deported or removed. We agree. We review de novo a district court's interpretation of a statute, and we begin with the text of the statute. See United States v. Havelock, 664 F.3d 1284, 1289 (9th Cir. 2012) (en banc). The statute provides that an alien who enters, attempts to enter, or is at any time found in the United States shall be guilty of a crime if he previously " has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding." 8 U.S.C. § 1326(a)(1). Lopez argues that the last clause, " while an order of exclusion, deportation, or removal is outstanding," applies to the entire subsection. As the district court concluded, however, the statutory language requires as an element of the offense an outstanding order of exclusion, deportation, or removal only when an alien has " departed" the United States. If the alien " has been denied admission, excluded, deported, or removed," then no order is required. The phrase is worded in the passive voice because the alien is the subject of the enforcement action. The second clause presupposes that the alien departed on his own initiative, in which case, the fact of his return alone cannot support a conviction under Section 1326 because returning alone is not the criminal act punished by Section 1326(a)(1). Indeed, " As a general rule, it is not a crime for a removable alien to remain present in the United States." Arizona v. United States, 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012). Rather, the criminal act is returning to the United States after the government has ordered the alien excluded, deported, or removed. Hence, the order of deportation, removal, or exclusion
becomes a necessary element that the government must prove beyond a reasonable doubt if the alien returns after he " has departed" on his own. Adducing sufficient proof that the order was issued is the only way to demonstrate that the government has, in fact, ordered the alien removed and that his return without permission violates the statute.
The Ninth Circuit's Model Criminal Jury Instruction 9.8 supports this interpretation. The model instruction, properly given to the jury here, identifies five elements. As ...