United States v. Lopez

A “properly authenticated verification of removal is legally sufficient to support a finding of physical removal beyond a reasonable doubt”; and, the government is required to show physical removal but not to show that before removal of an alien an order of removal was issued.

Roberto Lopez Francisco was convicted for violating 8 U.S.C. § 1326. Lopez was found near his home in Los Angeles and was arrested after having been removed from the United States in February of 2010. Lopez’s information was on a Verification of Removal form, including his photograph and fingerprint. On appeal, Lopez contested whether evidence was properly admitted regarding his deportation and if an order of deportation or removal proof is required. The Ninth Circuit agreed with the district court ruling that the government is not required to “prove that an order of removal or deportation was issued where the alien has been deported or removed” for 8 U.S.C. § 1326, but the government must show physical removal. A verification of removal is admissible under the hearsay public records exception and meets the Confrontation Clause requirements. It is also nontestimonial because it is “not made in anticipation of litigation and because it is simply a routine, objective cataloging of an unambiguous factual matter.” The panel held that the district court did not abuse its discretion when the court admitted the verification of removal because it was properly authenticated by Ron Oki, a deportation officer. However, Agent Harris’s lay opinion was admitted by the district court and there the court clearly erred. Agent Harris did not have personal knowledge under Federal Rule of Evidence 602 and 701 in order to meet the personal knowledge requirement and testify. The panel stated that a “properly authenticated verification of removal is legally sufficient to support a finding of physical removal beyond a reasonable doubt.” The panel concluded that Lopez’s rights were not seriously affected by the error of admitting Agent Harris’s lay opinion because a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” AFFIRMED.