United States v. Alfredo Alvarez , 580 F. App'x 571 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50192
Plaintiff - Appellee, D.C. No. 2:12-cr-00761-GAF-1
v.
MEMORANDUM*
ALFREDO VILLEGAS ALVAREZ, AKA
Alfredo Villegas, AKA Alfredo Villegas-
Alvarez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted May 16, 2014
Pasadena, California
Before: PREGERSON and NGUYEN, Circuit Judges, and TIGAR, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
Alfredo Villegas Alvarez (“Villegas”) appeals from his conviction following
a jury trial on one count of being an illegal alien found in the United States
following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. Villegas argues that the district court erred in admitting an alleged
Mexican birth certificate found in his certified A-file because the document is
hearsay and lacks sufficient authenticity under Rule 901 of the Federal Rules of
Evidence. We need not address Villegas’s argument because, even assuming the
district court erred in admitting the document, any such error was harmless in light
of the overwhelming evidence that Villegas is a native and citizen of Mexico.
United States v. Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (“An error is harmless
if it is more probable than not that the error did not materially affect the verdict.”
(internal quotation marks omitted)).
In addition to the disputed Mexican birth certificate, the government
introduced the following: Villegas’s admission during his 1997 deportation
proceedings and in statements made to immigration officers that he was a native
and citizen of Mexico; the multiple warrants of removals and deportation
verification that indicated that Mexico was the country to which he should be
removed; his statement during his most recent arrest in June 2012 that he was a
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citizen and national of Mexico; and his testimony at trial, on both direct and cross-
examination, that he had previously told authorities on prior occasions that he was
born in Mexico, and that he would not have signed a sworn statement to that effect
if that had not been true. See United States v. Ramirez-Cortez, 213 F.3d 1149,
1158 (9th Cir. 2000) (recognizing that neither a deportation order nor the
defendant’s own admissions, standing alone, would support the conclusion that the
defendant was an alien, but concluding that a rational trier of fact could find
“beyond a reasonable doubt” that the defendant was an alien based on his prior
deportation order, admissions he made in his underlying deportation proceeding,
and an INS agent’s testimony that his review of the defendant’s immigration
records reflected that the defendant was an alien).
2. The district court did not abuse its discretion in excluding the testimony
and birth certificates of defense counsel’s brother-in-law under Rule 401 of the
Federal Rules of Evidence. The ability of a third-party to obtain a fake birth
certificate in Mexico was not relevant to the issue of whether Villegas’s own
Mexican birth certificate was authentic. And, any relationship between Villegas’s
birth certificate and a third-party’s ability to obtain a fake birth certificate in
Mexico was purely speculative. Further, in order for these birth certificates to have
some relevance, defense counsel’s brother-in-law would have had to testify to the
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hearsay statements of his father. Villegas does not offer any applicable exception
to the hearsay rule, and we see none. Even if Villegas’s proffered evidence had
some relevance, it nevertheless may be properly excluded under Rule 403 of the
Federal Rules of Evidence, because admission of a third-party birth certificate
would have confused the jury and created a mini-trial. Moreover, even if the
district court erred in failing to admit the proffered birth certificates, any such error
was harmless in light of the overwhelming evidence of Villegas’s alienage
discussed above.
3. Villegas contends that the district court committed constitutional error by
excluding the birth certificates of defense counsel’s brother-in-law because the
ruling deprived him of an opportunity to present a complete defense. We disagree.
Not only were the documents inadmissible, Villegas in fact had an opportunity to
present a complete defense—he extensively cross-examined Officer Oki regarding
the authenticity and accuracy of the disputed birth certificate, and he testified on
his own behalf regarding his alienage.
AFFIRMED.
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