United States v. Carlos Fajardo-Fajardo ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1845
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Carlos Javier Fajardo-Fajardo, *
*
Appellant. *
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Submitted: November 20, 2009
Filed: February 12, 2010
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Carlos Javier Fajardo-Fajardo (“Fajardo”) appeals his conviction of being found
unlawfully within the United States after deportation, in violation of 8 U.S.C. §
1326(a). We affirm.
I.
On May 24, 2008, a Springfield, Missouri police officer initiated a traffic stop
for a vehicle driving erratically and without headlights. The driver identified himself
as Pedro Duran and presented a Mexico driver’s license and Mexico voter registration
card. After the driver failed a field sobriety test, the officer arrested him and
transported him to the Greene County, Missouri jail. During this encounter, the driver
told the officer that “he thought he was an illegal,” and that he was “waiting on his
green card.” The police obtained the driver’s fingerprints while he was in custody and
contacted Immigration and Customs Enforcement (“ICE”). Shortly thereafter, ICE
Agent Max Pulley interviewed the driver, who admitted that his true name was Carlos
Javier Fajardo-Fajardo, that he was a citizen of Honduras, and that he was present in
the United States illegally. Additionally, Fajardo reported that he was deported from
Denver, Colorado in 2004 and that he last entered the United States on February 5,
2007 on foot near El Paso, Texas without inspection or admission from any
immigration officer.
On July 9, 2008, the Government charged Fajardo with being an alien found
unlawfully within the United States after deportation, in violation of 8 U.S.C.
§ 1326(a). The only contested issue at trial was whether the government provided
sufficient proof that Fajardo had not received the consent of the Attorney General of
the United States before March 1, 2003, or the Secretary of the Department of
Homeland Security after February 28, 2003, to apply for readmission to the United
States since the time of his deportation.1 On that issue, the Government elicited
testimony from Agent Pulley regarding Fajardo’s Alien File (“A-File”), which
contains records of all contact between an individual and ICE and its predecessor
agency, the Immigration and Naturalization Service (“INS”). Agent Pulley testified
further that he was a custodian of Fajardo’s A-File, that he looked at every piece of
paper in Fajardo’s A-File, and that there was no record that Fajardo applied for or was
granted permission to re-enter the United States after deportation. The Government
also introduced a sworn statement from Fajardo, dated June 2, 2008. After being
1
In 2002, Congress transferred the authority to grant such consent from the
Attorney General to the Secretary of Homeland Security. See Homeland Security Act
of 2002, Pub. L. No. 107-296, §§ 402, 442, 116 Stat. 2135, 2177–78, 2193 (2002)
(codified at 6 U.S.C. §§ 202, 257).
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advised of and waiving his rights, Fajardo stated that he had not obtained permission
from the Attorney General or the Secretary of Homeland Security to re-enter the
United States after deportation. Lastly, ICE Agent Andrew Mitchell testified that he
searched the Citizenship and Immigration Service central index system (“CIS
database”), which contains records of aliens’ applications for benefits. Agent Mitchell
explained that ICE has “look-only” access to the CIS database. He also reported that
when he searched the CIS database using Fajardo’s name, date of birth, and alien
registration number, there was no record that Fajardo had received any benefit or
permission for any purpose, including a permanent resident alien card, also known as
a “green card.”
The jury found Fajardo guilty of the one count. Fajardo then moved for a
judgment of acquittal, arguing that the evidence was legally insufficient to prove the
lack-of-consent element of the charge. Specifically, Fajardo argued that the
Government was required to introduce a Certificate of Nonexistence of Record
(“CNR”), signed by an official authorized under federal regulations, to prove the
absence of consent to re-entry. The district court2 denied the motion for acquittal and
sentenced Fajardo to sixty-three months’ imprisonment. Fajardo appeals his
conviction, arguing that the evidence was insufficient to support the guilty verdict.
II.
In order to show a violation of 8 U.S.C. § 1326(a), the Government must
establish: (1) the defendant is an alien; (2) the defendant was previously denied
admission, excluded, removed, or deported from the United States or departed the
United States while an order of exclusion, deportation, or removal was outstanding;
(3) the defendant knowingly entered or was found in the United States; and (4) the
2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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defendant did not receive the consent of the Attorney General of the United States
before March 1, 2003 or the Secretary of Homeland Security after February 28, 2003,
to apply for readmission to the United States since the time of the defendant’s
deportation. 8 U.S.C. § 1326(a); see also United States v. Rodriguez-Arreola, 270
F.3d 611, 619 n.15 (8th Cir. 2001) (citation omitted); United States v. Diaz-Diaz, 135
F.3d 572, 575 (8th Cir. 1998). Only the evidence regarding the fourth element, the
absence of consent for re-entry, is at issue in this appeal. In reviewing the district
court’s denial of a motion for acquittal, we view the evidence “in the light most
favorable to the guilty verdict, resolving all evidentiary conflicts in favor of the
government, and accepting all reasonable inferences supported by the evidence.”
United States v. No Neck, 472 F.3d 1048, 1052 (8th Cir. 2007). “A jury verdict will
not lightly be overturned and ‘we will reverse only if no reasonable jury could have
found the defendant guilty beyond a reasonable doubt.’” United States v. Thompson,
533 F.3d 964, 970 (8th Cir. 2008) (quoting No Neck, 472 F.3d at 1052).
First, Fajardo contends that the Government’s proof was insufficient without
a CNR from an authorized immigration official. We recognize that prosecutors often
introduce a CNR as an official agency statement as to the nonexistence of an
application for readmission. See, e.g., United States v. Provencio-Sandoval, 272 F.
App’x 683, 684 (10th Cir. 2008) (unpublished); United States v. Urqhart, 469 F.3d
745, 747 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825, 830–31
(9th Cir. 2005); United States v. Martus, 138 F.3d 95, 97 (2d Cir. 1998) (per curiam).
Furthermore, there is case law stating that a jury may reasonably conclude from a
CNR that a defendant did not receive consent to apply for readmission to the United
States from the Attorney General or Secretary of Homeland Security. See United
States v. Sanchez-Milam, 305 F.3d 310, 313 (5th Cir. 2002) (per curiam); United
States v. Mateo-Mendez, 215 F.3d 1039, 1045 (9th Cir. 2000). However, we have not
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held that a CNR is required for the government to satisfy its burden of proof.3 Indeed,
we are aware of no such authority. Therefore, we will examine the sufficiency of the
evidence despite the absence of a CNR.
At Fajardo’s trial, the government accomplished what it could otherwise do
with a CNR by eliciting testimony from ICE Agents. Agents Pulley and Mitchell
testified that they searched Fajardo’s A-File and the CIS database, respectively, and
did not find a record indicating Fajardo applied for re-entry into the United States.
Fajardo argues that the testimony from Agents Pulley and Mitchell “should have been
stricken” because 8 C.F.R. § 103.7(d) does not authorize ICE Agents to certify records
or the non-existence of records. We disagree with Fajardo’s interpretation of that
regulation.
Section 103.7(d) governs who may certify information from immigration
records “[w]henever authorized under [the Freedom of Information and Privacy Act]
or any other law . . . .” The INS delegated certification duties under § 103.7(d) “[i]n
order to provide more efficient management and expeditious responses to the
requester.” Availability of Service Records, 52 Fed. Reg. 3–01 (Jan. 2, 1987)
(codified at 8 C.F.R. § 103.7(d)). Section 103.7(d) does not regulate who may access
an A-File, who may search the CIS database, or who may testify about the contents
of an A-File or the results of a search in the CIS database. Indeed, immigration agents
regularly testify about the absence of records in the CIS database and A-Files in their
custody. See, e.g., United States v. Mendez, 514 F.3d 1035, 1040 (10th Cir.), cert.
denied, 128 S. Ct. 2455 (2008); United States v. Valdez-Maltos, 443 F.3d 910, 911
(5th Cir. 2006) (per curiam); Gonzalez Ramirez, 156 F. App’x at 686. As such, the
testimony from Agents Pulley and Mitchell was proper and sufficient for a jury to
3
Cf. United States v. Gonzalez Ramirez, 156 F. App’x 686, 687 (5th Cir. 2005)
(unpublished per curiam) (holding that CNR is sufficient to prove non-consent from
the Attorney General but noting, “we have not held that such a certificate is required
for the Government to meet its burden of proof.”).
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reasonably conclude that Fajardo did not receive permission to re-enter the United
States.4
Alternatively, the Government satisfied its burden of proof on the
lack-of-consent element by introducing Fajardo’s sworn statement, in which he
admitted he had not obtained permission from the Attorney General or the Secretary
of Homeland Security to re-enter the United States after deportation. Fajardo argues
that his inculpatory statements are legally insufficient because they were not
corroborated by “substantial independent evidence which would tend to establish the
trustworthiness of the statement.” Opper v. United States, 348 U.S. 84, 93 (1954).
Fajardo’s confession, however, was corroborated by plenty of evidence—his use of
a false name, his counterfeit identification documents, his false statement to the
arresting officer about waiting on a green card, and the testimony from the ICE agents.
As such, Fajardo’s corroborated confession was sufficient evidence to support the jury
verdict.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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4
In passing, Fajardo challenges the Government’s proof as hearsay. The Agents
testified about what they observed when they searched Fajardo’s A-File and the CIS
database. Such statements are not hearsay. See Mendez, 514 F.3d at 1044 (holding
that as long as an immigration official testifies at trial about the absence of entry
documents and the relevant circumstances indicate an adequate search was performed,
the testimony is not hearsay); Valdez-Maltos, 443 F.3d at 911 (same).
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