Case o' The Week: FRE-dom's Just Another Word for Nothing Left to Lose -- Estrada-Eliverio

Another slow week in the Ninth gives us a chance to reach back to the recent, and disappointing, illegal reentry decision in United States v. Estrada-Eliverio, __ F.3d __, No. 07-05191, 2009 WL 3163526 (9th Cir. Oct. 5, 2009), decision available here.

Players: Decision by Judge Paez (right). Hard-fought case by San Diego Assistant Defender Vince Brunkow.

Facts: Estrada-Eliverio went to trial on one count of illegal reentry, 8 USC § 1326. Id. at *1. One element of this offense is that the defendant had previously been deported. Id. To prove Estrada-Eliverio’s prior deportation, the government submitted three A-file documents: “a notice of intent to issue a final administrative removal order, a final administrative removal order, and a warrant of removal or deportation.” Id. The seal that normally authenticates these documents was not visible, and they were therefore inadmissible as self-authenticating documents under FRE 902. Id.

To get around this problem, the government called a Border Patrol agent who testified that i) such documents are kept in A-files, ii) these documents were copies of documents of Estrada-Eliverio’s A-file, iii) this agent was the custodian of this A-file, and iv) the documents admitted were true and correct copies of the documents in the A-file, which the agent had personally seen. Id. The documents were admitted (over defense objection) under FRE 901 – “Requirement of Authentication or Identification.” Id. Estrada-Eliverio was convicted, and appealed.

Issue(s): “Estrada-Eliverio argues that the district court erroneously admitted documents from his immigration file (‘A-file’) that were not properly authenticated at trial. He contends that the district court erred by allowing authentication under Federal Rule of Evidence (‘FRE’) 901 and that, even if Rule 901 applied, the government did not satisfy the rule’s requirement. We must determine whether the Federal Rules of Criminal Procedure permit authentication of official documents under FRE 901.” Id. at *1.

Held: “We conclude that they do. In addition, we hold that the district court did not abuse its discretion in admitting the A-file documents under Rule 901.” Id.

Of Note: As always, San Diego mounts a clever and creative argument in this appeal. Ticking backwards through the Federal Rules of Civil and Criminal Procedure, the defense argues that Federal Rule of Civil Procedure 44 applies in the case – and that rule limits the ways that an “official record” can be authenticated. Id. at *2. FRE 901 is not one of those ways. Id. Judge Paez, unfortunately, doesn’t bite, and holds that an official record can be authenticated under FRE 901 in a criminal case.

Unfortunately, the decision continues on and holds that a “custodian” can authenticate an official record under FRE 901, even if the custodian has no personal knowledge of the records’ creation. Id.

How to Use: Estrada-Eliverio adds – or rather affirms – another California Penal Code section to the list of offenses that are categorical “crimes of violence” triggering the sixteen-level specific offense adjustment under USSG § 2L1.1(b)(1)(A)(ii): assault with a deadly weapon or by means likely to produce great bodily injury, California Penal Code § 245(a)(1). Id. at *3 (citing United States v. Grajeda, No. 07-50387, slip op. at 13647, 13668 (9th Cir. Sept. 21, 2009)).

For Further Reading: Estrada-Eliverio makes it clear that any document authenticated under FRE 901 would satisfy Fed. R. Civ. Pro. 44. Is the reverse true? Probably not. For a discussion of the asymmetric relationship of these rules, visit the Federal Evidence Review blog here.


Image of the Hon. Richard Paez from http://www.law.washington.edu/GatesScholar/speakers.aspx

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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