"Indeed, nothing in Melendez-Diaz is clearly irreconcilable with [the] holding that a warrant of removal is nontestimonial because it was not made in anticipation of litigation."
How later courts described this case
- "Indeed, nothing in Melendez-Diaz is clearly irreconcilable with [the] holding that a warrant of removal is nontestimonial because it was not made in anticipation of litigation."
Written by the judges who cited it.
The opinion
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-2758
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Lorenzo Pedro Lorenzo-Lucas
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: December 11, 2014
Filed: December 30, 2014
____________
Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
____________
BRIGHT, Circuit Judge.
Appellant Lorenzo Pedro Lorenzo-Lucas (“Lorenzo-Lucas”) was convicted by
jury of one count of illegal reentry into the United States in violation of 8 U.S.C.
§ 1326(a). Over Lorenzo-Lucas’s objection, the Government introduced at trial a
form I-205, also known as a warrant of deportation, to establish that Lorenzo-Lucas
had been previously deported in 2005. On appeal, Lorenzo-Lucas argues that the
district court’s1 admission of the warrant violated his Sixth Amendment right to be
confronted by adverse witnesses. We disagree and therefore affirm.2
I. Background
On January 9, 2014, Lorenzo-Lucas was arrested on suspicion that he had
reentered the United States illegally. As part of the developing investigation, the
arresting officer requested Lorenzo-Lucas’s alien file (A-file) which contained a
signed warrant of deportation. “A warrant of deportation is a document that
commands an immigration official to take custody of the deportee and to remove him
from the United States.” United States v. Torres-Villalobos, 487 F.3d 607, 612 (8th
Cir. 2007). “A signed warrant indicates that the attesting witness observed the
deportee leaving the country.” Id.
The district court denied Lorenzo-Lucas’s pretrial motion to suppress the
warrant. At trial, the Government sought to admit the contents of Lorenzo-Lucas’s
A-file into evidence, including the warrant of deportation which indicated that
Lorenzo-Lucas had been deported on May 4, 2005, pursuant to an order of removal.
Lorenzo-Lucas objected on the ground that the admission of the warrant violated his
Sixth Amendment confrontation rights. The district court overruled the objection and
admitted the warrant into evidence.
The jury found Lorenzo-Lucas guilty of one count of illegal reentry in violation
of 8 U.S.C. § 1326(a). The district court sentenced him to time served with no
supervised release to follow. Lorenzo-Lucas filed a timely notice of appeal.
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291.
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II. Discussion
Lorenzo-Lucas argues that the district court violated his Sixth Amendment
right to be confronted by witnesses against him when it admitted the warrant of
deportation over his objection. Lorenzo-Lucas contends that the warrant is
testimonial evidence under Crawford v. Washington, 541 U.S. 36 (2004). Thus, he
argues, in order to admit the warrant at trial, the Government was required to either
produce the individuals that signed and executed the warrant or demonstrate that he
had a prior opportunity to cross examine those individuals if they were unavailable.
We review Confrontation Clause objections to the admission of evidence de novo.
United States v. Dale, 614 F.3d 942, 955 (8th Cir. 2010).
Lorenzo-Lucas’s argument is foreclosed by our decision in Torres-Villalobos,
487 F.3d at 612, in which we held, post-Crawford, that a warrant of deportation is not
testimonial evidence that implicates the Confrontation Clause of the Sixth
Amendment. We reasoned:
Warrants of deportation are produced under circumstances objectively
indicating that their primary purpose is to maintain records concerning
the movements of aliens and to ensure compliance with orders of
deportation, not to prove facts for use in future criminal prosecutions.
They are properly characterized as non-testimonial official records that
were prepared independent of this litigation.
Id. (citations omitted).
Undeterred, Lorenzo-Lucas argues that the Supreme Court’s decision in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), calls into question the
viability of Torres-Villalobos. We disagree. Lorenzo-Lucas fails to cite to any
language in Melendez-Diaz that would suggest that Torres-Villalobos was decided
incorrectly. If anything, Melendez-Diaz confirms our holding in Torres-Villalobos
-3-
by emphasizing that “[b]usiness and public records are generally admissible absent
confrontation not because they qualify under an exception to the hearsay rules, but
because—having been created for the administration of an entity’s affairs and not for
the purpose of establishing or proving some fact at trial—they are not testimonial.”
Id. at 324. Indeed, “nothing in Melendez-Diaz is clearly irreconcilable with [the]
holding that a warrant of removal is ‘nontestimonial because it was not made in
anticipation of litigation.’” United States v. Orozco-Acosta, 607 F.3d 1156, 1164 (9th
Cir. 2010) (quoting United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.
2005)).
Finally, Lorenzo-Lucas argues that the recent increase in illegal reentry
prosecutions is evidence that warrants of deportation are prepared in anticipation of
litigation. But Lorenzo-Lucas fails to account for the number of illegal reentry
prosecutions relative to the number of removal proceedings. Even with rises in
illegal reentry prosecutions, recent statistics show that only a small fraction of
removal cases in which a warrant of deportation is created actually results in a
criminal prosecution.3 See also id. at 1163-64, 1164 n.5 (same). Thus, we reject
Lorenzo-Lucas’s argument that warrants of deportation are prepared in anticipation
of litigation.
3
In 2013, while the United States removed 438,421 aliens pursuant to final
orders of removal, see U.S. Dep’t of Homeland Sec., Yearbook of Immigration
Statistics, tbl. 39 (2013), available at http://www.dhs.gov/yearbook-immigration-
statistics-2013-enforcement-actions, approximately 20,500 illegal reentry
prosecutions were commenced from March 2012 to March 2013, see United States
Co u rts , Ca s elo ad S ta tis tics , t b l . D - 3 (2 01 3 ), a va ila ble a t
http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/caseload-
statistics-2013.aspx.
-4-
III. Conclusion
For the foregoing reasons, we affirm.
______________________________
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