United States v. Lopez, No. 12-50464 (9th Cir. Aug. 7, 2014) (Wardlaw, J., with Pregerson and Tallman, JJ.) --

 

- Revising a previously issued opinion in this illegal-reentry case, the Ninth Circuit held, on plain-error review, that the district court erred in admitting the lay opinion testimony of a border agent who did not personally witness the defendant's prior removal to show that the defendant had previously been removed, but that the error did not affect the defendant's substantial rights in light of the other evidence presented at the trial.

One of the elements that the government must prove in a § 1326 prosecution is that the defendant has previously been removed from the United States. Here, a removal agent testified that he signed a verification of removal form. But he signed that form in Tucson, Arizona, and the defendant was removed through Nogales, Arizona, some 70 miles away. This removal agent was not qualified as an expert witness and did not personally witness the defendant's removal. The government did not introduce the defendant's removal order at trial, but did introduce the verification form.

Because a warrant of deportation is admissible without violating the Confrontation Clause, see United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. 2010), so is a verification of removal form. The only difference between the two is that the former is issued after there has been a hearing in front of an immigration judge, while the latter is issued during the expedited-removal process (where no hearing is held). Because the verification form was properly authenticated, it was properly admitted.

The trial judge should not, however, have admitted the removal officer's lay opinion testimony about the defendant having actually been removed. He did not have personal knowledge of the removal as required by Rule 602 and by Rule 701. The prosecutor asked the removal agent whether, based on his "training and experience," the defendant had been removed, but never asked questions about what aspect of the agent's "training and experience" led him to conclude that the defendant had been removed. He was not qualified as an expert, so the trial judge should have excluded the testimony on this point. However, the defendant did not object to this testimony, so appellate review was limited to plain error. The court affirmed the conviction because other evidence of the defendant's removal was so overwhelming that there was no reasonable probability of a different outcome if the removal agent's testimony had been excluded.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/07/12-50464.pdf