US v. Lopez, No. 12-50464 (4-2-14) (Wardlaw with Pregerson and Tallman). 

In this appeal from a 1326 conviction, the 9th finds error but deems it harmless.  The error was the testimony by the border patrol agent that he was sure the defendant was previously deported based on the Verification of Removal form.  The agent who was not qualified as an expert and who did not personally see the defendant removed gave an opinion on the ultimate issue which violates FRE 602 and 701.  Yet, the other evidence (fingerprint, form etc.) made it harmless.

In another important issue, the 9th held that admission of the Verification of Removal was proper as a "public record" and did not violate the confrontation clause.  The removal verification was an "observation," that recorded the movement of an alien across the border.  It was ministerial.  Thus, it did not violate FRE 803 nor confrontation.  It was not created at a crime scene, nor upon questioning.  This holding follows the precedent allowing warrants of deportation to be entered into evidence and not violating the right to confrontation.

The 9th holds that an order of deportation is not an element in a 1326 prosecution, when the focus is on having been removed.  If the defendant had departed, under an order of deportation, then the government would have to produce an order.  Here, the notice of removal and verification satisfied the elements.  Sufficient evidence was produced to affirm the conviction.  The court also did not abuse its discretion in denying an evidentiary hearing on defendant's new trial motion alleging false testimony.

This was a spirited appeal by CJA panel lawyer Davina Chen, former AFPD from the California Central (L.A.), raising a number of interesting issues.  Of special note is the error of the agent giving his opinion on the ultimate issue.