Case o' The Week: Gov't Alien-ates with Hearsay Statements - Morales, Confrontation Clause, and Hearsay Exceptions
It’s a perfect evidence decision – the Ninth methodically grinds through and flatly rejects one theory after another as the government tries to defend its use of impermissible hearsay.
Everything the defense could want (except, of course, a reversal). United States v. Kaleena Leah Morales, 2013 WL 3306395 (9th Cir. July 2, 2013), decision available here.
Players: Decision by Judge Ikuta, joined by Judges McKeown and Callahan.
Facts: Kaleena Morales brought her friend Jakaub to transport aliens in the US. Id. at *1. When the pair were stopped five aliens were discovered hiding in the backseat of the truck. Id. The aliens were interviewed by Border Patrol agents who completed a “Field 826” form. Id. In that form the aliens signed a statement admitting that there were in the US illegally. Id. at *2. The aliens were removed to Mexico, were not called to testify at the alien-transportation trial of Morales, and their depositions were excluded. Id. at *2. Instead, over defense objection the government relied on the Field 826 forms to establish alienage – along with testimony of Border Agents and of the friend Jakaub. Id. Morales was convicted.
Issue(s): “[Morales] challenges the admissibility of certain forms filled out by Border Patrol agents in the field, which included statements by the smuggled aliens that they were in the United States illegally.” Id. at *1 (fn. omitted).
Held: 1. Confrontation Clause: “The nature and use of the Field 826 makes clear that its primary purpose is administrative, not for use as evidence at a future criminal trial. Even though statements within the form may become relevant to later criminal prosecution, this potential future use does not automatically place the statements within the ambit of ‘testimonial.’ Accordingly, we hold that neither the Field 826 itself, nor the statements within it, implicate the Confrontation Clause.” Id. at *4 (internal quotations and citations omitted). 2. Hearsay: “The district court admitted the Field 826s under the business record exception to the rule against hearsay. See Fed. R. Evid. 803(6). This was an error, because this exception does not apply to records of government agencies, which are public records for purposes of Rule 803.” Id. at *5. “Here, the aliens’ statements that they were in the United States illegally do not qualify as public records under Rule 803(8), because they do not describe ‘activities’ of the government, and the government does not argue that aliens under a ‘duty to report’ their immigration status.” Id. at *6.
Of Note: Judge Ikuta works carefully through several hearsay objections, and concludes that nothing saves the admission of these forms to prove alienage. So why doesn’t Morales end up with a new trial? Harmless error. Judge Ikuta lists the other evidence introduced at trial that “demonstrates beyond a reasonable doubt” that the aliens were in the US illegally. Id. at *7. Among this evidence was a Border Patrol agent’s testimony that the aliens “were not legal citizens.” Id. On what facts did this agent base this legal conclusion? The inadmissible statements from the aliens that the Ninth now excludes! There is admittedly other evidence as well (like “the fact that the aliens in question had encountered immigration officials and were given Field 826s”, id. at *7) but the Court’s assurances in this harmless-error “save” of the conviction aren’t terribly reassuring.
How to Use: The Confrontation Clause holding is disappointing, the harmless-error save is frustrating, but Morales remains a good evidence decision. Id. at *5. The opinion illustrates a growing trend: the government scrimping on evidence and seeking convictions, without paying to do it right. The USAO in Morales didn’t bother to bring the aliens back to the US, didn’t use mat-wit detainers to keep them around for a quick trial, and instead patched-together some shoddy evidence on alienage by smuggling in inadmissible hearsay. Use Judge Ikuta’s evidence primer in Morales to battle this economization temptation – tighter USAO budgets in FY ’14 will tempt AUSAs to dodge the expenses of live witnesses and rely on inadmissible hearsay.
For Further Reading: The Ninth’s Defenders are all warning of the draconian budget cuts heading our way in Fiscal ’14. For a good recent AP article chronicling the devastation on the horizon, see “Public defenders warn of dire budget cuts,” available here.
Defender Tom Hillier’s expression in this piece worth a thousand words on sequestration . . .
Image of “hearsay” from https://si0.twimg.com/profile_images/63502603/hearsay.jpg
Steven Kalar, Federal Public Defender N.D. Cal FPD. Website at www.ndcalfpd.org