United States v. Napoleon Bustamante , 687 F.3d 1190 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 11-50075
D.C. No.
NAPOLEON ARTURO BUSTAMANTE,
AKA King Arthur XIII, AKA  5:10-cr-00043-
Arthur Lee Bustamante, AKA VAP-1
Arturo Lim Bustamante, AKA OPINION
Ricardo Arthur Lee Bustamante,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
June 8, 2012—Pasadena, California
Filed August 7, 2012
Before: Betty B. Fletcher and Kim McLane Wardlaw,
Circuit Judges, and John A. Mendez, District Judge.*
Opinion by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by Judge Mendez
*The Honorable John A. Mendez, District Judge for the U.S. District
Court for Eastern California, sitting by designation.
8863
8866 UNITED STATES v. BUSTAMANTE
COUNSEL
Davina T. Chen, Deputy Federal Public Defender, Los Ange-
les, California, for appellant Napoleon Arturo Bustamante.
Dorothy Mclaughlin, Assistant United States Attorney, River-
side, California, for appellee United States of America.
OPINION
B. FLETCHER, Circuit Judge:
Napoleon Arturo Bustamante appeals his convictions for
illegal reentry in violation of 8 U.S.C. § 1326, making a false
statement in a passport application in violation of 18 U.S.C.
§ 1542, and making a false statement in an application for
supplemental security income benefits in violation of 42
U.S.C. § 1383a(a)(1). These convictions rested on the govern-
ment’s allegation that Bustamante is not a United States citi-
zen. To prove that allegation, the government introduced a
document appearing to be a transcription of Bustamante’s
birth certificate from the Philippines. We conclude that the
introduction of this document violated Bustamante’s rights
under the Confrontation Clause of the Sixth Amendment.
Because this error was not harmless beyond a reasonable
doubt, we vacate Bustamante’s convictions and remand for a
new trial.
I.
Bustamante lived in the United States for many years and
on many occasions held himself out as a natural-born U.S. cit-
UNITED STATES v. BUSTAMANTE 8867
izen. He possessed a U.S. passport and a delayed registration
of birth from California stating that he was born in Stockton,
California on February 1, 1945. While Bustamante was serv-
ing in the Air Force in the 1970s, the Air Force became con-
cerned about Bustamante’s claim of citizenship and began an
investigation in 1973. The investigation determined that the
evidence of Bustamante’s citizenship was inconclusive, and
he was honorably discharged in 1976. The government then
initiated immigration proceedings against Bustamante, but
those proceedings were dismissed.
Bustamante continued living and working in the United
States until 2006, when he was arrested for writing counterfeit
checks. The investigation after his arrest found that he had
been born in the Philippines and was thus not a U.S. citizen.
Bustamante was convicted of uttering a counterfeit security,
impersonating a U.S. citizen, and making false statements. He
was sentenced to 21 months in prison and deported to the
Philippines on April 8, 2008.
A few months later, Bustamante went to the U.S. Embassy
in Manila and applied for a U.S. passport. He submitted a
photocopy of his social security card, a photocopy of an old
U.S. passport, and a Department of Veterans Affairs ID card.
Bustamante received a passport and returned to the United
States. After returning, Bustamante applied for social security
benefits, submitting his passport and his delayed registration
of birth from California as proof of citizenship. Bustamante’s
application was denied, and he was arrested in July 2010 and
charged with the present offenses of conviction.
II.
The government introduced several documents at trial to
prove that Bustamante was born in the Philippines and is not
a U.S. citizen. One of these documents, the government’s
Exhibit 1, purported to be a “copy” of Bustamante’s Philip-
pine birth certificate. This document was obtained by the gov-
8868 UNITED STATES v. BUSTAMANTE
ernment in 1975 as part of the Air Force investigation into
Bustamante’s citizenship.1 It is a one-page, typewritten docu-
ment labeled: “Republic of the Philippines, City of Bacolod,
Office of the Local Civil Registrar, Birth Certificate.” It is not
a photocopy or duplicate. It states: “This is to certify that
according to the record of births in this office, the following
is the copy of the birth certificate of: Napoleon Bustamante.”
It then goes on to transcribe the information contained at Page
86, Register No. 401 of the office’s birth records, most nota-
bly that Napoleon Bustamante was born on February 1, 1939,
in the City of Bacolod. It concludes by stating: “The forego-
ing is issued this 14th day of October 1975 in the City of
Bacolod, Philippines, upon the request of Mr. Robert L. Coff-
man for whatever purpose it may serve her/him.” It is signed
by “Demetrio B. Salupisa, Chief, Civil Registrar, For & In the
Absence of the Local Civil Registrar.”
Shortly before trial, the government gave Bustamante docu-
ments it had just received indicating that the Philippine
authorities no longer had any record of Bustamante’s birth.
Both the Philippine National Statistics Office and the Bacolod
City Civil Registry Office confirmed that they had no birth
records for Napoleon Bustamante or any of his aliases. The
City of Bacolod document explained that “our record filed in
this office covering the period from 1939 to 1946 is totally
mutilated,” and emails accompanying the discovery further
explained that “there was poor record keeping for [birth cer-
tificates] prior to World War II.”
Based on this information, Bustamante objected to the
admission of Exhibit 1, arguing that it was not a properly
authenticated foreign public document under Federal Rule of
Evidence 902(3) and that its authenticity was suspect because
1
The government’s witnesses gave inconsistent testimony about
whether Exhibit 1 was requested by the Air Force or by immigration
authorities, but there is no dispute that it was requested as part of the gov-
ernment’s investigation into Bustamante’s citizenship.
UNITED STATES v. BUSTAMANTE 8869
there was no longer any record in the Philippines of Busta-
mante’s birth. At the district court’s direction, the government
took steps to authenticate Exhibit 1, obtaining a chain of certi-
fications establishing that Demetrio B. Salupisa was autho-
rized to issue birth certificates and that Salupisa’s signature
was similar to the record on file with the National Statistics
Office. After the district court ruled that FRE 902(3) had been
satisfied, Bustamante further objected to the admission of
Exhibit 1, arguing that it was testimonial evidence that was
inadmissible under Crawford v. Washington, 541 U.S. 36(2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527(2009). The district court held that the document was not tes-
timonial. After a four-day jury trial, Bustamante was con-
victed on all three counts and sentenced to thirty months
imprisonment.
Bustamante timely appealed, and we have jurisdiction pur-
suant to 28 U.S.C. § 1291. We review de novo whether the
admission of a document violated a defendant’s Confrontation
Clause rights. United States v. Chung, 659 F.3d 815, 832 (9th
Cir. 2011).
III.
[1] The Confrontation Clause of the Sixth Amendment
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” In Crawford v. Washington, the Supreme Court
held that this “bedrock procedural guarantee” prohibits the
admission of “testimonial statements of a witness who [does]
not appear at trial unless [the witness is] unavailable to testify,
and the defendant ha[s] had a prior opportunity for cross-
examination.” 541 U.S. at 42, 53-54. Although the Court
declined “to spell out a comprehensive definition of ‘testimo-
nial,’ ” id. at 68, it provided examples of “various formula-
tions,” including:
[E]x parte in-court testimony or its functional
equivalent—that is, material such as affidavits, cus-
8870 UNITED STATES v. BUSTAMANTE
todial examinations, prior testimony that the defen-
dant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect
to be used prosecutorially; extrajudicial statements
. . . contained in formalized testimonial materials,
such as affidavits, depositions, prior testimony, or
confessions; statements that were made under cir-
cumstances which would lead an objective witness
reasonably to believe that the statement would be
available for use at a later trial.
Id. at 51-52 (internal quotation marks and citations omitted).
Five years later in Melendez-Diaz v. Massachusetts, the
Supreme Court held that “certificates of analysis” reporting
the results of forensic tests showing that certain material was
cocaine were testimonial statements under Crawford, requir-
ing the analysts who completed the certificates to be subject
to confrontation. 129 S. Ct. 2527 (2009). The Court held that
the despite being labeled “certificates,” the documents at issue
were “quite plainly affidavits” that “fall within the ‘core class
of testimonial statements’ ” described in Crawford. Id. at
2532; see also id. (“Our description of that category mentions
affidavits twice.”).
In determining that the certificates of analysis were testi-
monial, the Court emphasized that they were “incontrovert-
ibly a ‘solemn declaration or affirmation made for the purpose
of establishing or proving some fact,’ ” id. (quoting Crawford,
541 U.S. at 51); that they were “functionally identical to live,
in-court testimony, doing ‘precisely what a witness does on
direct examination,” id. (quoting Davis v. Washington, 547
U.S. 813, 830 (2006)); and that they were “made under cir-
cumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a
later trial,” id. (quoting Crawford, 541 U.S. at 52).
The Court also distinguished the certificates of analysis
from ordinary “[b]usiness and public records,” which “are
UNITED STATES v. BUSTAMANTE 8871
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 2539-40. In that
discussion, the Court also indicated that authentications of
existing non-testimonial records do not implicate the Con-
frontation Clause: “A clerk could by affidavit authenticate or
provide a copy of an otherwise admissible record, but could
not do what the analysts did here: create a record for the sole
purpose of providing evidence against a defendant.” Id. at
2539. By contrast, the Court suggested that “a clerk’s certifi-
cate attesting to the fact that the clerk had searched for a par-
ticular relevant record and failed to find it” was a testimonial
statement. Id.
[2] These cases compel us to conclude that Exhibit 1 is a
testimonial statement. In essence, Exhibit 1 is an affidavit tes-
tifying to the contents of the birth records of the City of Baco-
lod and is “functionally identical to [the] live, in-court
testimony” that an employee of the Civil Registrar’s office
might have provided. Id. at 2532. It was also created for the
purpose of the Air Force investigation into Bustamante’s citi-
zenship and was “made under circumstances which would
lead an objective witness reasonably to believe that the state-
ment would be available for use at a later trial.” Id. (quoting
Crawford, 541 U.S. at 52). The admission of Exhibit 1 there-
fore violated Bustamante’s confrontation rights because Bus-
tamante did not have a prior opportunity to examine Salupisa.
Crawford, 541 U.S. at 68-69.
[3] The government argues that Exhibit 1 is not testimonial
because birth certificates are non-testimonial public records.
Our holding today does not question the general proposition
that birth certificates, and official duplicates of them, are ordi-
nary public records “created for the administration of an enti-
ty’s affairs and not for the purpose of establishing or proving
some fact at trial.” Melendez-Diaz, 129 S. Ct. at 2539-40. But
8872 UNITED STATES v. BUSTAMANTE
Exhibit 1 is not a copy or duplicate of a birth certificate. Like
the certificates of analysis at issue in Melendez-Diaz, despite
being labeled a copy of the certificate, Exhibit 1 is “quite
plainly” an affidavit. See id. at 2532. It is a typewritten docu-
ment in which Salupisa testifies that he has gone to the birth
records of the City of Bacolod, looked up the information on
Napoleon Bustamante, and summarized that information at
the request of the U.S. government for the purpose of its
investigation into Bustamante’s citizenship. Rather than sim-
ply authenticating an existing non-testimonial record,
Salupisa created a new record for the purpose of providing
evidence against Bustamante. See id. at 2539. The admission
of Exhibit 1 without an opportunity for cross examination
therefore violated the Sixth Amendment.
IV.
The government argues that even if Bustamante’s confron-
tation rights were violated, the error was harmless. The gov-
ernment bears the burden of proving that a Confrontation
Clause error is harmless beyond a reasonable doubt. United
States v. Nguyen, 565 F.3d 668, 675 (9th Cir. 2009). “In eval-
uating whether a Confrontation Clause violation is harmless,
[this court] considers a variety of factors,” including:
the importance of the witness’ testimony in the pros-
ecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of crossex-
amination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
United States v. Orozco-Acosta, 607 F.3d 1156, 1161-62 (9th
Cir. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986)).
The government maintains that the strength of its other evi-
dence regarding Bustamante’s citizenship renders the admis-
UNITED STATES v. BUSTAMANTE 8873
sion of Exhibit 1 harmless. The government points out that it
also introduced marriage and school records indicating that
Bustamante was born in the Philippines in 1939; the birth cer-
tificate of Bustamante’s daughter, which also indicated that
her father had been born in the Philippines; and a visa appli-
cation and entry document indicating that Bustamante entered
the United States from the Philippines in 1970. The govern-
ment also presented evidence of Bustamante’s previous con-
viction and deportation.
[4] We agree that this evidence was strong, but we cannot
conclude that it made the admission of Exhibit 1 harmless
beyond a reasonable doubt. It is clear that Exhibit 1 was very
important to the prosecution’s case. Trial was continued to
allow the government time to authenticate Exhibit 1 to satisfy
evidentiary requirements. It provided direct testimony on the
central, critical question at trial: Where was Bustamante born?
Without the admission of Exhibit 1, the communications from
the City of Bacolod and the Philippine National Statistics
Office indicating that they had no record of Bustamante’s
birth would certainly have weakened the prosecution’s case,
and strengthened the defense argument that the other records
introduced by the government could have belonged to a dif-
ferent Napoleon Bustamante. That evidence, combined with
Bustamante’s California baptismal certificate, delayed regis-
tration of birth, and U.S. passports, may have significantly
altered the evidentiary picture. We cannot say beyond a rea-
sonable doubt that the jury would have convicted Bustamante
absent introduction of Exhibit 1.
Moreover, this case illustrates the importance of the Sixth
Amendment’s “bedrock procedural guarantee” of confronta-
tion. Crawford, 541 U.S. at 42. The government introduced
Salupisa’s testimonial statement, made in 1975, declaring that
the City of Bacolod had Bustamante’s 1939 birth certificate.
Other evidence indicated that the City of Bacolod’s birth
records from 1939 to 1945 were poorly kept and in any event
had been completely destroyed. This contradiction could only
8874 UNITED STATES v. BUSTAMANTE
be resolved through cross-examination of Salupisa to deter-
mine where his information came from and when the birth
records were destroyed. Without the crucible of cross-
examination guaranteed by the Constitution, Bustamante had
no way to test the reliability of a significant part of the gov-
ernment’s case.
[5] The admission of Exhibit 1 violated Bustamante’s
Sixth Amendment rights, and that error was not harmless
beyond a reasonable doubt. We VACATE Bustamante’s con-
victions and REMAND for a new trial. We need not address
Bustamante’s remaining contentions on appeal.
VACATED and REMANDED.
J. Mendez, District Judge, concurring in part and dissenting
in part:
I concur with the majority’s conclusion that the govern-
ment’s Exhibit 1 was testimonial in nature and therefore
admitted in error because Bustamante did not have the oppor-
tunity to cross-examine the individual who prepared the sum-
mary of Bustamante’s purported birth record. I respectfully
dissent because I believe that the Government met its burden
of showing that the admission of Exhibit 1 was harmless
beyond a reasonable doubt, making reversal and remand to
the district court unnecessary.
“The prosecution bears the burden of proving [that an
admission of evidence in violation of the Confrontation
Clause] was harmless beyond a reasonable doubt.” United
States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 675 (9th Cir.
2009) (citing United States v. Gillam, 167 F.3d 1273, 1277
(9th Cir. 1999)). “The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were
fully realized, a reviewing court might nonetheless say that
UNITED STATES v. BUSTAMANTE 8875
the error was harmless beyond a reasonable doubt.” Delaware
v. Van Arsdall, 475 U.S. 673, 684 (1986). This court exam-
ines a variety of factors to determine if an error is harmless,
including: “whether the testimony was cumulative, the pres-
ence or absence of [evidence] corroborating or contradicting
the testimony on material points, the extent of cross-
examination, and of course, the overall strength of the prose-
cution’s case.” Nguyen, 565 F.3d at 675 (quoting United
States v. Mayfield, 189 F.3d 895, 906 (9th Cir. 1999)).
I believe that a cross-examination of Mr. Salupisa, the per-
son who created the 1975 Filipino birth record, had limited
potential to damage the government’s case. The parties dis-
puted the authenticity of the birth certificate at trial, cross-
examining two Government witnesses as to the authenticity of
the document, and Bustamante’s attorney argued at closing
that the document was not credible. Accordingly, the question
of the authenticity of the 1975 birth record was already before
the jury, making the potential damage from cross-examining
Salupisa duplicative of other evidence regarding the 1975
birth record’s authenticity. See United States v. Larson, 495
F.3d 1094, 1108 (9th Cir. 2007) (holding that limiting cross
examination of a witness is harmless error when a defendant
has other opportunities to elicit testimony on similar issue).
Beyond the 1975 birth record, the government presented
overwhelming evidence to corroborate its contention that
Bustamante was born in 1939 in Bacolod City, the Philip-
pines. Id. (finding that admission of evidence in violation of
Confrontation Clause is harmless where the government
offers significant corroborating evidence). The majority sum-
marizes the government’s evidence above, but fails to men-
tion that the exhibits used by the government were provided
by Bustamante to the Social Security Administration (“SSA”)
in support of his application for benefits. The documents pro-
vided by Bustamante to the SSA included his marriage con-
tract, his extensive school records, and a birth certificate for
his daughter. All of the documents list his birthplace as the
8876 UNITED STATES v. BUSTAMANTE
Philippines and his nationality as Filipino. Additionally, the
immigration forms presented by the government not only
indicated that Bustamante entered the United States from the
Philippines, as the majority notes, but the forms, completed
by Bustamante, also indicate that he was born in the Philip-
pines.
Bustamante contends that admission of the 1975 birth
record was not harmless beyond a reasonable doubt for two
reasons. First, Bustamante argues that the 1975 record was
central to the government’s case because the government 1)
sought a continuance in order to have the record admitted; 2)
used it in its opening statement and closing statements; and 3)
introduced the record through its first witness. Second, Busta-
mante argues that without the 1975 birth record, the only birth
record in evidence was Bustamante’s California delayed reg-
istration of birth.
Bustamante’s first argument is not persuasive because of
the sheer weight of evidence showing that he was born in the
Philippines. As discussed in detail above, this evidence con-
sisted of statements made by Bustamante himself both when
applying for SSA benefits and when he first entered the
United States. Even if the 1975 birth record is not considered,
the overwhelming evidence in the record indicates that Busta-
mante was born in the Philippines. There is no other reason-
able conclusion to be drawn from the evidence contained in
the record.
Bustamante’s reliance on the California delayed registra-
tion of birth is not persuasive because the government pres-
ented testimony at trial from Reverend Masters, the senior
pastor of the Holman United Methodist Church, that the
church did not own the building listed on the delayed registra-
tion of birth until 1951, 5 years after Bustamante’s purported
baptism at that location. Additionally, the government pro-
duced evidence from the church’s records that Bustamante
was baptized in 1971, not 1946 as listed on the baptismal cer-
UNITED STATES v. BUSTAMANTE 8877
tificate relied upon for his delayed registration of birth. Busta-
mante does not point to any evidence in the record that
contradicts Reverend Masters’s testimony or calls it into ques-
tion. Thus, the only reasonable conclusion that a jury could
draw based on the evidence is that Bustamante’s California
delayed registration of birth was invalid because it was based
entirely on a fraudulent baptismal certificate.
For the foregoing reasons, I believe that the error of admit-
ting the 1975 birth record was harmless beyond a reasonable
doubt. The potential damage of cross examining Mr. Salupisa
was minimal because the issue of the record’s authenticity
was already before the jury. The evidence of Bustamante’s
birth in the Philippines is overwhelming, and any contradic-
tory evidence was shown to be fraudulent by the government.
Finally, the overall strength of the prosecution’s case was
very high because of the uncontradicted evidence of Busta-
mante’s birth in the Philippines. Since the evidence in the
record shows that admission of the 1975 birth record was
harmless beyond a reasonable doubt, I respectfully dissent
from the majority’s holding on this issue.