United States v. Roberto Lopez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50464

Plaintiff-Appellee,

D.C. No.

v. 2:11-cr-00688-

JAK-1

ROBERTO LOPEZ, AKA Robert

Hernandez, AKA Roberto

Hernandez, AKA Ice, AKA Robert ORDER AND

Lopez, AKA Roberto Lopez, AKA AMENDED

Roberto Lopez-Francisco, AKA OPINION

Mario, AKA Roberto Mendoza,

AKA Roberto Mendoza-Hernandez,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted

October 9, 2013—Pasadena, California

Filed April 2, 2014

Amended August 7, 2014

Before: Harry Pregerson, Kim McLane Wardlaw,

and Richard C. Tallman, Circuit Judges.

Order;

Opinion by Judge Wardlaw

2 UNITED STATES V. LOPEZ

SUMMARY*

Criminal Law

The panel amended an opinion affirming a conviction for

being an alien found in the United States after deportation, in

violation of 8 U.S.C. § 1326.

The panel held that § 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.

The panel held that a Verification of Removal is

nontestimonial, and that its admission thus comports with the

requirements of the Confrontation Clause. The panel also

held that the Verification of Removal is admissible under the

public records exception to the rule against hearsay.

The panel held that the district court clearly erred by

admitting a Border Patrol agent’s lay opinion testimony on

the question of the defendant’s physical removal in the

absence of personal knowledge, as required by Fed. R. Evid.

602 and 701. The panel affirmed the conviction because the

defendant fails to show a reasonable probability that the

exclusion of that testimony would have affected the outcome

of his trial and does not demonstrate that the remaining

evidence was legally insufficient to support the verdict.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. LOPEZ 3

The panel held that the district court did not abuse its

discretion in denying without an evidentiary hearing the

defendant’s motion for a new trial based on an allegation of

false testimony.

COUNSEL

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.

ORDER

The Opinion filed on April 2, 2014 is hereby amended,

and an amended opinion is filed concurrently with this order.

Appellant’s petition for panel rehearing is denied.

No future petitions for rehearing or petitions for rehearing

en banc will be entertained. The mandate shall issue

forthwith.

IT IS SO ORDERED.

4 UNITED STATES V. LOPEZ

OPINION

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 Lopez fails to show a reasonable

probability that the exclusion of that testimony would have

affected the outcome of his trial; nor does he demonstrate that

the remaining evidence was legally insufficient 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.

I.

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.

UNITED STATES V. LOPEZ 5

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.1 The form is

used to record the removal of an individual from the United

States during the expedited removal process.2 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

1

“The Alien File (A-File), Index, and National File Tracking System of

Records is the official record system that contains information regarding

transactions involving an individual as he/she passes through the U.S.

immigration and inspection process.” Privacy Act of 1974; U.S.

Citizenship and Immigration Services, Immigration and Customs

Enforcement, Customs and Border Protection—001 Alien File, Index, and

National File Tracking System of Records, 76 Fed. Reg. 34233, 34234

(June 13, 2011). “The hardcopy paper A-File, which contains the official

record material about each individual for whom DHS has created a record

under the Immigration and Nationality Act such as: Naturalization

certificates; various documents and attachments (e.g., birth and marriage

certificates); applications and petitions for benefits under the immigration

and nationality laws; reports of arrests and investigations; statements;

other reports; records of proceedings before or filings made with the U.S.

immigration courts and any administrative or federal district court or court

of appeal; correspondence, and memoranda.” Id. at 34236.

2

Expedited removal proceedings provide a streamlined process by

which aliens who attempt to gain entry to the United States but are not

admissible can be removed by an immigration officer without further

hearing or review. This process does not apply to those seeking asylum

or expressing a fear of persecution. See 8 U.S.C. § 1225(b)(1)(A)(i).

6 UNITED STATES V. LOPEZ

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

UNITED STATES V. LOPEZ 7

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.

II.

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

8 UNITED STATES V. LOPEZ

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 (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

UNITED STATES V. LOPEZ 9

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 to the first

element, the government must prove:

First [[the defendant was [removed]

[deported] from the United States]] [[the

defendant departed the United States while an

order of [removal] [deportation] was

outstanding]];

9th Cir. Model Crim. Jury Instr. 9.8 (2010) (all brackets in

original). The separate double brackets indicate that the court

should give the jury either one of the instructions, but not

both. So if the defendant was deported or removed, the court

moves on to the second element of the offense. If he instead

“departed,” the government does not meet its burden with

respect to element one unless it also proves that the defendant

departed “while an order of removal or deportation was

outstanding.” See United States v. Gonzalez-Villalobos,

724 F.3d 1125, 1129 (9th Cir. 2013) (“In a prosecution for

illegal reentry under 8 U.S.C. § 1326(a), the Government

must prove, inter alia, that the defendant was previously

‘denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion,

deportation, or removal [wa]s outstanding.’ 8 U.S.C.

§ 1326(a)(1); see also 9th Cir. Model Crim. Jury Instr. 9.8

(2010).”).

The cases Lopez cites for the proposition that an order of

removal or deportation is an element of the crime that must

10 UNITED STATES V. LOPEZ

be proven to the jury under all circumstances are inapposite.

True, we have said that “[o]ne of the elements of a conviction

under § 1326 is a prior removal order.” United States v.

Vidal-Mendoza, 705 F.3d 1012, 1014 (9th Cir. 2013). But

Vidal-Mendoza—as well as United States v. Barajas-

Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011), and other

cases cited by Lopez—involve collateral challenges to the

validity of an order of deportation under 8 U.S.C. § 1326(d),

not whether a deportation or removal order must be

introduced at trial. These cases stand for the uncontroversial

proposition that the validity of a removal or deportation order

is always a predicate to the crime because the deportation

must be valid, legal, and comport with due process

requirements to sustain a conviction under Section 1326.

This does not necessarily mean that where the government

proves that the alien was actually physically removed, the

government must also prove the existence of a deportation or

removal order.

Indeed, if actual physical removal or deportation is

proven, a valid order of removal or deportation may be

presumed in the absence of a collateral pre-trial challenge in

the form of a motion to dismiss the indictment, or, as here,

the information. Fed. R. Crim. P. 12(b)(3)(B) (requiring “a

motion alleging a defect in the indictment or information” to

be made before trial); see, e.g., United States v. Lopez-

Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc)

(reviewing a district court’s grant of a motion to dismiss an

indictment under Section 1326 based on the invalidation of

the deportation order underlying the indictment). Implicitly

recognizing this rule, Lopez filed a pre-trial motion to dismiss

the information due to unlawful deportation, which

challenged the validity of his underlying removal order. The

district court denied this motion, finding that although Lopez

UNITED STATES V. LOPEZ 11

did not sign the removal order as required by 8 C.F.R.

§ 235.3(b)(2)(I), he suffered no prejudice. Lopez did not

appeal the denial of his motion to dismiss.

Lopez asserts that our decision in United States v.

Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005), requires

the government to prove that an order of removal or

deportation was outstanding as an element of every § 1326(b)

offense. Lopez points us to our description in that case of

what the government must show to prove “physical removal”:

“The Government must prove beyond a reasonable doubt that

Bahena-Cardenas physically left the country sometime

between the time he was ordered removed and the time he

was found in the United States.” Id. at 1074. In Bahena-

Cardenas, the issue was whether the government could meet

its burden of proving actual physical removal by introducing

a warrant of deportation signed by the agent who witnessed

the defendant’s departure from the United States. We

concluded that the warrant of deportation is nontestimonial

and therefore does not implicate Crawford v. Washington,

541 U.S. 36 (2004). 411 F.3d at 1074–75. Because a warrant

of deportation is admissible to prove physical removal in a

deportation case, we upheld the conviction. Bahena-

Cardenas is squarely in line with our holding as to proof of

removal or deportation orders, and does nothing to disturb the

legal requirement that actual physical removal from the

United States must be proven.

III.

It is well-established that the government is required to

prove physical removal from the United States as an element

of the crime under 8 U.S.C. § 1326. See Bahena-Cardenas,

411 F.3d at 1074. We must decide whether the government

12 UNITED STATES V. LOPEZ

presented sufficient evidence of Lopez’s physical removal by

submitting the Verification of Removal along with Officer

Oki’s testimony as the temporary custodian of Lopez’s A-File

and eliciting opinion testimony from Agent Harris. To

determine the admissibility of the Verification of Removal,

we review de novo the district court’s interpretation of the

Federal Rules of Evidence, but once we determine that the

evidence does fall within the given rule, we review the

district court’s decision to admit it for abuse of discretion.

United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006).

Because Lopez failed to object to Agent Harris’s opinion

testimony at trial, we review its admission for plain error.

Puckett v. United States, 556 U.S. 129, 135 (2009).

A.

The district court did not err by admitting Lopez’s

Verification of Removal. A verification of removal comports

with the requirements of the Confrontation Clause and is

admissible under the public records exception to the rule

against hearsay.

We have previously held that “a warrant of removal is

nontestimonial.”3 Bahena-Cardenas, 411 F.3d at 1075;

United States v. Orozco-Acosta, 607 F.3d 1156, 1163 (9th

Cir. 2010) (reaffirming Bahena-Cardenas after Melendez-

Diaz v. Massachusetts, 557 U.S. 305 (2009)).

We have not yet addressed a Confrontation Clause

challenge to the admissibility of a verification of removal as

3

Form I-205 is entitled “Warrant of Removal/Deportation.” It is

referred to interchangeably in our previous cases and in federal regulations

as a warrant of removal or a warrant of deportation.

UNITED STATES V. LOPEZ 13

opposed to a warrant of removal. However, reasoning by

analogy to Bahena-Cardenas and Orozco-Acosta, we

conclude that like a warrant of removal, a verification of

removal is nontestimonial. Both documents record the alien’s

physical removal across the border and are made for the

purpose of recording the movement of aliens. Compare

Orozco-Acosta, 607 F.3d at 1162–63 (describing a warrant of

removal), with Form I-296. The only functional difference

between the two is that a verification of removal is used to

record the removal of aliens pursuant to expedited removal

procedures, while the warrant of removal records the removal

of aliens following a hearing before an immigration judge.

See 8 C.F.R. § 241.2 (2005) (noting that a Form I-205,

Warrant of Removal, is “based upon the final administrative

removal order in the alien’s case”); 8 U.S.C. § 1229a

(explaining that removal proceedings shall in general be

conducted by an immigration judge, and that such

proceedings “shall be the sole and exclusive procedure for

determining whether an alien may be admitted to the United

States or, if the alien has been so admitted, removed from the

United States[,]” except where otherwise specified in the

chapter).

In Bahena-Cardenas, we concluded that a warrant of

removal/deportation is nontestimonial because it is “not made

in anticipation of litigation, and because it is simply a routine,

objective cataloging of an unambiguous factual matter.”

411 F.3d at 1075. In Orozco-Acosta, we reaffirmed our

holding in Bahena-Cardenas, once again reasoning that

warrants of removal/deportation are nontestimonial because

they are “not made in anticipation of litigation,” they are

“simply a routine, objective, cataloguing of an unambiguous

factual matter,” and they “have inherent reliability because of

the Government’s need to keep accurate records of the

14 UNITED STATES V. LOPEZ

movement of aliens.” Orozco-Acosta, 607 F.3d at 1163

(internal quotation marks omitted).

These same considerations lead us to conclude that a

verification of removal is nontestimonial in nature as well.

First, there is no evidence that a verification of removal is

completed in anticipation of litigation. Second, a verification

of removal is “simply a routine, objective, cataloguing of an

unambiguous factual matter.” Id. A verification of removal

records the fact that an individual alien was removed from the

United States. The alien’s name, photograph, fingerprint, and

signature all appear on the form, as do the departure date, the

port of departure, and the manner of departure. It is signed by

a “verifying officer” and requires that officer to indicate his

title as well. That it is the removed alien’s fingerprint on the

form is evidenced by the signature of the officer who took the

fingerprint. Thus, a verification of removal catalogues the

unambiguous factual matter—whether an alien has been

removed—just as a warrant of removal/deportation does.

Verifications of removal are also routine. They are

completed for all aliens removed pursuant to expedited

removal procedures. Third, a verification of removal has the

same “inherent reliability because of the Government’s need

to keep accurate records of the movement of aliens” as a

warrant of removal/deportation. It is equally important for

the government to record which aliens have been removed

under expedited removal procedures as it is to record which

aliens have been removed in other circumstances. Both

documents are placed in the alien’s A-File. There is no

daylight between the function of these two documents that

would suggest one should be deemed nontestimonial while

the other is deemed testimonial.

UNITED STATES V. LOPEZ 15

Although Lopez recognizes that the Confrontation Clause

analysis applies equally to a warrant of removal/deportation

and a verification of removal, he contends that a verification

of removal is, nevertheless, inadmissible hearsay. Under

Federal Rule of Evidence 803(8), a record or statement of a

public office is admissible as an exception to the hearsay rule

if it sets out “a matter observed while under a legal duty to

report, but not including, in a criminal case, a matter observed

by law-enforcement personnel.” Fed. R. Evid. 803(8)(A)(ii).

We review de novo whether a verification of removal falls

into the public records exception to the hearsay rule. United

States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir.

2009).

Again, reasoning by analogy to our precedent permitting

admission of warrants of removal/deportation, we reject

Lopez’s assertion that the general prohibition against

admitting records created by law enforcement personnel

codified in Federal Rule of Evidence 803(8)(A)(ii) applies to

verifications of removal. In United States v. Loyola-

Dominguez, 125 F.3d 1315, 1317–18 (9th Cir. 1997), we

reaffirmed that warrants of deportation are admissible in

Section 1326 prosecutions even though they describe a matter

observed by border patrol agents. See United States v.

Hernandez-Rojas, 617 F.2d 533, 534–35 (9th Cir. 1980)

(holding the same). Because warrants of deportation reflect

“ministerial, objective observation[s] and do not implicate the

concerns animating the law enforcement exception to the

public records exception,” they are not precluded by that

exception. Loyola-Dominguez, 125 F.3d at 1318 (internal

quotation marks omitted). We have noted that the purpose of

the law enforcement exception is to “exclude observations

made by officials at the scene of the crime or apprehension,

because observations made in an adversarial setting are less

16 UNITED STATES V. LOPEZ

reliable than observations made by public officials in other

situations.” United States v. Hernandez-Rojas, 617 F.2d 533,

535 (9th Cir. 1980). Excluding a verification of removal

would not further this purpose because the observation made

by a law enforcement officer in verifying the removal of an

alien is not made at the scene of a crime or apprehension nor

made in an adversarial setting. Rather, like a warrant of

deportation, a verification of removal records the movement

of aliens across the United States border. The form thus

shares the same “inherent reliability because of the

Government’s need to keep accurate records of the movement

of aliens,” id., that we found important to our conclusion that

warrants of deportation are not inadmissible hearsay.

Lopez misplaces his reliance on slight differences in the

two types of forms, arguing that the observations recorded on

a verification of removal are more subjective. While it is true

that subjective observations of law enforcement officers are

excluded as inadmissible hearsay, the slight differences in the

two forms cannot obscure the plain fact that neither form

leaves room for subjectivity. Both forms require law

enforcement agents to verify the removal of aliens from the

United States and attest to that verification. The question

answered by the officer signing either form is the same

objective one: whether or not the alien was removed.

Lopez also argues that the differences between the two

forms are relevant to the first prong of the public records

exception: whether the matter was “observed while under a

legal duty to report.” Fed. R. Evid. 803(8). He argues that

because a warrant of deportation includes a signature line for

the officer who “witnessed” the removal, while a verification

of removal does not, any removal recorded on the latter form

cannot be said to have been “observed” and is therefore

UNITED STATES V. LOPEZ 17

inadmissible. Lopez’s argument falters, however, when one

considers that warrants of deportation, which are admissible,

provide an option for an officer to indicate that he either

“witnessed” the removal or that he “verified the removal.” If

verifying the removal constitutes an “observation” sufficient

to satisfy the requirements of Rule 803(8), the same principle

applies to verifications of removal, rendering them also

admissible under Rule 803(8).

The verification of removal also meets the requirement

that “the document was a record of matters observed pursuant

to a duty imposed by law.” United States v. Pintado-Isiordia,

448 F.3d 1155, 1157 (9th Cir. 2006) (internal quotation marks

omitted). We have not interpreted the “duty imposed by law”

requirement to mean that a statute or regulation expressly

imposes duties to observe, report, and keep records. Rather,

it suffices if the nature of the responsibilities assigned to the

public agency are such that the record is appropriate to the

function of the agency. 4 Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence § 8.88 (3d ed. 2012)

(collecting cases). Recording and maintaining verifications

that an individual has been deported falls under the rubric of

responsibilities assigned to the Department of Homeland

Security; therefore, completing the verification of removal

form is appropriate to the function of the agency.

Having determined that a verification of removal falls

within the public records exception to the hearsay rule, we

examine whether it was an abuse of discretion for the district

court to admit it here. It was not. At trial, the prosecution

properly authenticated the Verification of Removal by calling

deportation officer Ron Oki, the temporary custodian of

Lopez’s A-File, as a witness. In United States v. Estrada-

Eliverio, 583 F.3d 669 (9th Cir. 2009), we squarely held that

18 UNITED STATES V. LOPEZ

documents from an A-File may be authenticated under

Federal Rule of Evidence 901,4 which requires “the proponent

[to] produce evidence sufficient to support a finding that the

item is what the proponent claims it is.” Fed. R. Evid. 901(a).

Specifically, under Rule 901(b)(7), public records may be

authenticated based on evidence that “a) a document was

recorded or filed in a public office as authorized by law; or

b) a purported public record or statement is from the office

where items of this kind are kept.” Fed. R. Evid. 901(b)(7).

In Estrada-Eliverio, we held that the district court did not

abuse its discretion in admitting several A-File documents,

including the defendant’s warrant of removal or deportation,

under Rule 901(b)(7). There, a Border Patrol Agent testified

“that such documents are kept in A-files, that the documents

offered were copies of documents from [defendant’s] A-file,

that [the Agent] was the custodian of that A-file, and that the

documents admitted were true and correct copies of the

documents in the A-file, which [the Agent] had personally

seen.” 583 F.3d at 671. In Lopez’s case, Officer Oki testified

to the same—that he was the temporary custodian of Lopez’s

A-File, that a verification of removal is a document that is

included customarily in A-Files, and that the Verification of

4

In Estrada-Eliverio we considered the interplay between Federal Rule

of Civil Procedure 44 and Federal Rule of Evidence 901. Under Rule 44,

made applicable in a criminal case by Federal Rule of Criminal Procedure

27, “an official record is admissible if it is an official publication of the

record or a copy of the record attested by the officer with legal custody of

the record and accompanied by a certificate, made under seal, that the

officer has custody. In addition, the Rule allows a party to prove that a

document is an official record by any other method authorized by law.”

Estrada-Eliverio, 583 F.3d at 672 (internal quotation marks and citations

omitted). We held, “[a]lthough the government could have relied on Rule

44 to authenticate the A-file documents, it was not so restricted . . . FRE

901 provided an alternative basis for establishing the documents’

authenticity.” Id.

UNITED STATES V. LOPEZ 19

Removal introduced as Exhibit 12 was a true and correct copy

of a document from Lopez’s A-File. Moreover, as we

explained in Estrada-Eliverio, “FRE 901 does not require

personal knowledge of a document’s creation, but rather only

personal knowledge that a document was part of an official

file.” 583 F.3d at 673. Officer Oki’s testimony indicates that

he had the requisite personal knowledge, and therefore his

“testimony was sufficient to make a prima facie case for

authenticity.” Id.

B.

The district court clearly erred by admitting Agent

Harris’s lay opinion on the question of Lopez’s physical

removal. However, the erroneous admission of that

testimony does not warrant reversal. Under plain error

review, “an appellate court may, in its discretion, correct an

error not raised at trial only where the appellant demonstrates

that (1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error

affected the appellant’s substantial rights, which in the

ordinary case means it affected the outcome of the district

court proceedings; and (4) the error seriously affects the

fairness, integrity or public reputation of judicial

proceedings.” United States v. Marcus, 560 U.S. 258, 262

(2010) (internal quotation marks and alteration omitted).

Lopez has met the first two requirements, but not the

remaining two.

On redirect, the prosecutor asked Agent Harris, “[B]ased

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.”

20 UNITED STATES V. LOPEZ

Lopez argues that this testimony was inadmissible under

Federal Rule of Evidence 602 because Agent Harris lacked

personal knowledge. He also argues it was inadmissible

under Federal Rule of Evidence 701 because it could not have

been “rationally based on Agent Harris’s perception,” nor

was it established that Agent Harris had any training or

experience removing persons at the border or with the form

itself.

The district court clearly erred by admitting Agent

Harris’s lay opinion testimony. Agent Harris’s testimony

does not satisfy the personal knowledge requirement of

Federal Rule of Evidence 602. Under Rule 602, a “witness

may testify to a matter only if evidence is introduced

sufficient to support a finding that the witness has personal

knowledge of the matter.” Personal knowledge means

knowledge produced by the direct involvement of the senses.

See 3 Mueller & Kirkpatrick, Federal Evidence § 6.6 (3d ed.

2012) (collecting cases). Agent Harris was not in Nogales

when Lopez was deported, and he did not witness the

deportation. In fact, Agent Harris last saw Lopez before

Lopez’s alleged departure on the bus from Tucson to

Nogales. Nor could Agent Harris identify either of the

signatures on the Verification of Removal, and he certainly

had not witnessed those signatures. Indeed, Agent Harris

admitted that he could not even remember Lopez, testifying

that Lopez was “a pretty common name.” He could not have

testified as to his personal knowledge as required by Rule

602.

Agent Harris’s lay opinion testimony is also inadmissible

under Federal Rule of Evidence 701. A lay person may offer

testimony in the form of an opinion if it is “(a) rationally

based on the witness’s perception; (b) helpful to clearly

UNITED STATES V. LOPEZ 21

understanding the witness’s testimony or to determining a

fact in issue; and (c) not based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.”

Rule 701(a) contains a personal knowledge requirement. The

advisory committee notes to Rule 701 clarify that 701(a) is

“the familiar requirement of first-hand knowledge or

observation,” Fed. R. Evid. 701 advisory committee notes

(1972), and we have held that the personal knowledge

requirement under Rule 602 is the same as that under Rule

701(a), see United States v. Simas, 937 F.2d 459, 464–65 (9th

Cir. 1991).

In presenting lay opinions, the personal knowledge

requirement may be met if the witness can demonstrate first-

hand knowledge or observation. As described above, Agent

Harris neither witnessed Lopez’s deportation nor could he

identify the people who signed the form. Although the

prosecution could have elicited Agent Harris’s lay opinion

testimony had it laid a proper foundation for Harris’s

familiarity and experience, if any, with verifications of

removal or the removal of aliens at the border, the

prosecution failed to do so. See United States v. Martinez,

657 F.3d 811, 818–19 (9th Cir. 2011) (upholding admission

of lay testimony on the meaning of coded communications by

a former member of the Mexican Mafia after establishing the

member’s “long experience in writing notes for the

organization”); see also United States v. Durham, 464 F.3d

976, 982 (9th Cir. 2006) (“[C]ourts have permitted lay

witnesses to testify that a substance appeared to be a narcotic

so long as a foundation of familiarity with the substance is

established.”) (quoting Fed. R. Evid. 701 advisory committee

notes (2000)). But see United States v. Figueroa-Lopez,

125 F.3d 1241, 1246 (9th Cir. 1997) (holding that testimony

by law enforcement agents that defendant’s conduct was

22 UNITED STATES V. LOPEZ

consistent with that of a drug trafficker violated Federal Rule

of Evidence 701 because permitting such testimony subverts

the requirements of Federal Rule of Criminal Procedure

16(a)(1)(E)); United States v. Peoples, 250 F.3d 630, 641 (8th

Cir. 2001) (holding inadmissible lay opinion testimony by an

FBI agent about recorded conversations because “when a law

enforcement officer is not qualified as an expert by the court,

her testimony is admissible as lay opinion only when the law

enforcement officer is a participant in the conversation, has

personal knowledge of the facts being related in the

conversation, or observed the conversations as they

occurred,” none of which occurred in this case).

The prosecution laid no foundation for Agent Harris’s

opinion that the Verification of Removal meant Lopez had

actually been physically removed. The prosecutor never

elicited the supposed “training and experience” he asked

Agent Harris to rely upon for his opinion testimony. Nor did

he ask whether Agent Harris ever used the form, worked at a

port of entry, removed anyone, or received training on the use

of the form. What was established is that Harris had been a

border patrol agent for four and a half years and at the time of

trial was assigned to the Naco Border Patrol Station, but had

been temporarily detailed to Three Points, west of Tucson.

Harris further testified that in February 2010, he was

temporarily detailed to the Tucson station, forty to fifty miles

from Nogales, for a period of six months. The Tucson station

is a processing center where individuals are brought after they

are arrested to be fingerprinted, photographed, and

interviewed. Tucson is not a place from which Mexican

citizens are actually removed or deported.

Based on the evidence admitted at trial, no possible

scenario exists under which Agent Harris’s lay opinion

UNITED STATES V. LOPEZ 23

testimony was “predicated upon concrete facts within [his]

own observation and recollection—that is facts perceived

from [his] own senses, as distinguished from [his] opinions or

conclusions drawn from such facts.” Durham, 464 F.3d at

982 (internal quotation marks omitted).

C.

We must next determine whether the error affected

Lopez’s substantial rights, “which in the ordinary case means

he must demonstrate that it affected the outcome of the

district court proceedings.” Puckett, 556 U.S. at 135 (internal

quotation marks omitted); see also United States v. Anguiano-

Morfin, 713 F.3d 1208, 1210 (9th Cir. 2013), cert. denied,

134 S. Ct. 543 (2013). Lopez has not met his burden of

demonstrating that there is a “reasonable probability that the

error affected the outcome of the trial.” Marcus, 560 U.S. at

262.

The other evidence of Lopez’s physical removal

introduced at trial was not only legally sufficient to support

the jury’s verdict, it was also strong enough that there is not

a reasonable probability that but for Agent Harris’s

testimony, the outcome of the trial would have been different.

As an initial matter, Lopez argues that the Verification of

Removal alone was legally insufficient to support the jury’s

finding that he had been physically removed. We clarified

our two-step approach to evaluating sufficiency of the

evidence claims in United States v. Nevils, 598 F.3d 1158

(9th Cir. 2010) (en banc). First, we are required to “construe

the evidence at trial in the light most favorable to the

prosecution.” Id. at 1161 (internal quotation marks omitted).

Only then may we determine whether “any rational trier of

24 UNITED STATES V. LOPEZ

fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). Evidence will therefore be

“insufficient to support a verdict where mere speculation,

rather than reasonable inference, supports the government’s

case.” Id. at 1167.

We have repeatedly held that a warrant of removal is

“sufficient alone to support a finding of removal beyond a

reasonable doubt.” United States v. Zepeda-Martinez,

470 F.3d 909, 913 (9th Cir. 2006); see United States v.

Salazar-Lopez, 506 F.3d 748, 755 (9th Cir. 2007) (“We noted

in Zepeda-Martinez that this warrant is sufficient alone to

support a finding of removal beyond a reasonable doubt.”)

(internal quotation marks and alteration omitted); Bahena-

Cardenas, 411 F.3d at 1075 (“We hold that the warrant of

deportation in this case is nontestimonial and thus admissible.

Accordingly, the government provided sufficient evidence of

physical removal.”).

Similarly, a properly authenticated verification of removal

is legally sufficient to support a finding of physical removal

beyond a reasonable doubt. As with warrants of removal, the

Verification of Removal “bore [defendant’s] name,

immigration identification number, photograph, signature,

and fingerprint.” Salazar-Lopez, 506 F.3d at 755. At no time

during trial did Lopez argue that the photograph, signature,

and fingerprint on the Verification of Removal did not belong

to him.5

5

Lopez’s counsel did argue that the government failed to prove that the

A-File was linked to Lopez in conjunction with his Rule 29 motion. The

district court properly rejected this argument based on the parties’ pretrial

UNITED STATES V. LOPEZ 25

In addition, during trial, the government called a

fingerprint expert who testified that the fingerprint on

Lopez’s Verification of Removal belonged to Lopez, and

Lopez never contested that fact. Nor did Lopez contend that

the photograph on the Verification of Removal was not of

him; and the jury could simply compare the photograph to the

defendant to determine whether it was his. Similarly, Lopez

did not challenge the authenticity of his signature on the

form.

In closing Lopez argued, “This entire case is built on a

piece of paper . . . . This is Exhibit 12. You will have this

exhibit back with you in the jury room.” Lopez also made the

most he could of the government’s inability to identify, much

less call, the border agents who took his fingerprint and

verified his removal, urging the jury to conclude that there

was not proof beyond a reasonable doubt that Lopez was

actually physically removed.6

stipulations and other documents introduced during trial from the A-File,

which established that the A-File belonged to Lopez.

6

Although Officer Oki testified that verifications of removal are

completed when an alien is physically removed, he did not testify about

the specific procedures followed at the border. Indeed, even in cases

holding warrants of removal sufficient alone to support a finding of

physical removal, the government has elicited testimony from the agent

who signed the warrant of removal or testimony from an agent with the

requisite experience and training about the custom and practice of

completing these forms. See Salazar-Lopez, 506 F.3d at 755 (explaining

that although a warrant of removal is sufficient evidence of removal

standing alone, the evidence of physical removal was bolstered by the

testimony of the officer who signed defendant’s warrant of removal);

Bahena-Cardenas, 411 F.3d at 1072 (noting that the agent who signed the

warrant of deportation did not testify, but another agent “testified that the

26 UNITED STATES V. LOPEZ

In addition to authenticating the Verification of Removal,

Officer Oki’s testimony provided the jury with a framework

in which to view the form. He testified that he has reviewed

“[t]housands” of A-Files in his career, which began in June

1996 as a special agent with INS. He testified that a

verification of removal is completed when a person is

physically removed from the United States, and it is

principally used by U.S. Customs and Border Patrol agents

because it is a document that is used at the borders. Finally,

he stated that he has seen “hundreds” of these documents, all

of which had the “exact format” as the one introduced in this

case.

Two distinct conclusions arise from our review of the

evidence introduced at trial. First, a “rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Nevils, 598 F.3d at 1164 (quoting

Jackson, 443 U.S. at 319). Second, we cannot conclude that

the erroneous admission of Agent Harris’s lay opinion

affected Lopez’s substantial rights or that it “seriously

affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Anguiano-Morfin, 713 F.3d at

1210–11 (quoting Puckett, 556 U.S. at 135).

IV.

Lopez argues that the district court abused its discretion

when it denied his Rule 33 motion for a new trial without an

evidentiary hearing. See United States v. Young, 17 F.3d

1201, 1202 (9th Cir. 1994). Lopez moved for a new trial on

the basis that Agent Harris testified falsely when he stated

normal practice is for deportation officers to sign the warrant of

deportation when they see the alien leave the United States”).

UNITED STATES V. LOPEZ 27

that an alien is fingerprinted as he steps off the bus in

Nogales, immediately before being removed across the

border. The day after the jury convicted Lopez, defense

counsel, accompanied by an investigator for the public

defender’s office, Alonzo Garcia, interviewed Customs and

Border Protection Supervisor George Schmid. According to

Lopez, Officer Schmid confirmed that Agent Harris testified

falsely, asserting that someone who is removed across the

border at Nogales is not fingerprinted as he gets off the bus;

instead, he is fingerprinted at the processing station.

The district court did not abuse its discretion in denying

Lopez’s motion for a new trial. The district court correctly

found Lopez’s motion for an evidentiary hearing to cross-

examine Agent Harris and Officer Schmid untimely under

Local Rule 7-8. However, the district court also considered

the merits of Lopez’s argument and did not clearly err when

it found insufficient evidence of false testimony. The signed

declarations of Officer Schmid and Investigator Garcia upon

which Lopez relies do not directly contradict Agent Harris’s

testimony at trial; the unsigned declaration that did contradict

Agent Harris’s testimony was subsequently signed only after

the contradictory language had been excised. And, even if

Agent Harris testified falsely about the location at which the

fingerprint is taken, that point is so tangential that Lopez

cannot meet his burden of showing “there is a reasonable

probability that without the evidence the result of the

proceeding would have been different.” United States v.

Inzunza, 638 F.3d 1006, 1020 (9th Cir. 2011) (internal

quotation marks omitted).

28 UNITED STATES V. LOPEZ

V.

Accordingly, we find no reversible error and therefore

affirm.

AFFIRMED.