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United States v. Noria

United States Court of Appeals, Fifth Circuit

December 18, 2019


          Appeal from the United States District Court for the Southern District of Texas

          Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.


         A jury convicted Appellant Fernando Ramirez Noria of illegally reentering the United States following removal. Noria challenges the district court's admission of five partial Form I-213s that documented immigration agents' prior encounters with him. He argues that the admission of the forms violated his Sixth Amendment right to confront the witnesses against him. He also contends the forms were inadmissible hearsay. We conclude that the admitted portions of Noria's Form I-213s do not offend the Confrontation Clause and that they are admissible under Federal Rule of Evidence 803(8)'s hearsay exception for public records. Noria's conviction and sentence are affirmed.


         In October 2018, a federal grand jury indicted Noria on one count of unlawfully reentering the United States following removal.[1] Noria pleaded not guilty and proceeded to trial. Among other exhibits, the Government sought to introduce five Form I-213s through the testimony of United States Citizenship and Immigration Service ("USCIS") section chief Christine Pool.

         An "I-213 is an official record routinely prepared by an [immigration] agent as a summary of information obtained at the time of the initial processing of an individual suspected of being an alien unlawfully present in the United States."[2] Put more simply, it "is a record of an immigration inspector's conversation with an alien who will probably be subject to removal."[3] Typically, an I-213 "includes, inter alia, the individual's name, address, immigration status, the circumstances of the individual's apprehension, and any substantive comments the individual may have made."[4]Each of Noria's five I-213s documented a different encounter with immigration authorities between 2014 and 2018. Four of the forms corresponded to four of the five times Noria had previously been removed from the United States, while the most recent I-213 documented the 2018 immigration encounter that led to Noria's illegal-reentry prosecution.

         Noria moved to exclude the I-213s "unless the agent who questioned [him] is available to testify at trial and the document is redacted to exclude any prior criminal history information." He argued "[i]t would be unreliable hearsay" and a violation of the Confrontation Clause to permit anyone other than the agent who created the document to testify to its contents. Both the court and the Government appeared to agree with defense counsel that because the I-213s contained narrative information about agents' interviews with Noria, they could not be admitted in full unless each of the interviewing officers testified. So, the Government offered only the first page of each I-213, which showed Noria's "routine biographical information," including his name and birthplace. Christine Pool, the USCIS witness, would then be able to testify that each of the I-213s belonged to the same person with the same alien number.

         Conceding that the information was hearsay, the prosecutor argued that it was admissible under Federal Rule of Evidence 803(8)'s exception for public records. The court agreed and permitted the Government to introduce the redacted first page of each of the five I-213s. Pool testified that each form was created by an immigration agent shortly "after an encounter with Mr. Noria" and "kept in the regular course of . . . business of the activities of the Department of Homeland Security and USCIS." Each contained, among other information, Noria's name, basic biometric data, aliases, country of citizenship (Mexico), birthdate, birthplace (Tamaulipas, Mexico), and A-file number.[5] All but the most recent also contained Noria's photograph and fingerprints. Pool testified that taken together, the biographical information in the I-213s "show[ed] Noria as being a . . . citizen of Mexico," not of the United States. Pool also certified that Noria had not applied for permission to reenter the United States. On cross examination, Pool testified that she had not personally prepared any of Noria's I-213s or spoken to the agents who prepared them, but that she had experience creating I-213s in the past.

         The jury also heard the testimony of George Cortes, a supervisory deportation officer for the Department of Homeland Security ("DHS"), who explained how Noria had been located and selected for prosecution. Cortes had met with Noria in person approximately six months before trial, and he was able to identify Noria in the courtroom. Finally, DHS fingerprint examiner Raymond Miller testified that the fingerprints on Noria's prior warrants of removal and the fingerprints on the I-213s were made by the same person. In addition to witness testimony, a Certificate of Nonexistence of Record, two immigration detainers, and the IJ's initial removal order all identified Noria as a citizen of Mexico. The jury found Noria guilty, and the district court imposed the statutory maximum sentence of 24 months.[6] This appeal followed.



         The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."[7] In Crawford v. Washington, the Supreme Court held that a defendant's confrontation right is violated when the prosecution introduces "testimonial statements of a witness who did not appear at trial," unless that witness "was unavailable to testify, and the defendant had a prior opportunity for cross-examination."[8] Importantly, only testimonial statements "cause the declarant to be a 'witness' within the meaning of the Confrontation Clause."[9] Without articulating a comprehensive definition, the Crawford Court described "testimony" as "typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact."[10] This includes, "at a minimum[, ] prior testimony at a preliminary hearing, before a grand jury, or at a former trial," as well as "police interrogations."[11]

         Following Crawford, the Supreme Court has explained that "the basic objective of the Confrontation Clause . . . is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial."[12] Thus, the high Court has adopted the "primary purpose" test for determining whether a statement is testimonial in nature.[13] To qualify as "testimonial" under this standard, "a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution."[14] Thus, business and public records are generally not testimonial because they are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial."[15] However, if a public record is "prepared specifically for use at . . . trial," then it is testimonial and therefore inadmissible absent its creator's testimony.[16]


         In general, the rule against hearsay bars the admission of any "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."[17] However, the general rule is littered with exceptions, including one for public records. Federal Rule of Evidence 803(8) provides that public records "are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness." A "record or statement of a public office" qualifies under this exception if:

(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

         The public-records exception "is designed to permit the admission into evidence of public records prepared for purposes independent of specific litigation."[18] It is based on the assumption that public documents "recording routine, objective observations" are free of "the factors likely to cloud the perception of an official engaged in . . . observation and investigation of crime."[19] Instead, "[d]ue to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter . . . such records are [considered] inherently reliable."[20]

         Rule 803(8)(A)(ii)'s prohibition against public records of "matter[s] observed by law-enforcement personnel" in criminal cases does not prevent the admission of all reports prepared by law enforcement officers. Instead, the Court distinguishes "between law enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the arguably more subjective endeavor of investigating a crime and evaluating the results of that investigation."[21] The former are admissible, while the latter are not.[22]


         Noria preserved his confrontation and hearsay claims by objecting to the admission of each I-213 at trial. We "review [an] alleged violation of the Confrontation Clause de novo, subject to a harmless error analysis."[23] We review the district court's hearsay ruling for abuse of discretion, also subject to a harmless error analysis.[24]


         Although "hearsay rules and the Confrontation Clause are generally designed to protect similar values, "[25] they "are not wholly congruent."[26] Even if "evidence [is] sufficiently reliable to qualify for admission under a recognized exception to the hearsay rule," it cannot be admitted if it "offend[s] confrontation values."[27] In other words, if Noria's I-213s are testimonial, they are inadmissible regardless of Rule 803(8)'s hearsay exception. We therefore address Noria's confrontation argument before turning to his hearsay challenge.


         Noria contends that the admission of I-213s prepared by non-testifying agents "violated [his] Sixth Amendment right to confrontation." He characterizes the reports as testimonial statements made by immigration agents "in preparation for litigation in immigration or criminal court." The Government counters that the admitted portions of the I-213s are not testimonial because they were prepared primarily for internal administrative purposes, not in anticipation of a criminal prosecution. The Government points out that the forms "contain[] only biographical information" supplied by Noria himself, along with routine "immigration tracking information," including the "date, location, and manner" of the interviews. In the Government's view, these are merely administrative data points, not evidence recorded for any subsequent trial.


         Although this issue was not raised by the parties in their briefing or at oral argument, we hesitate to proceed to the Sixth Amendment analysis without identifying the declarant of the I-213s. After all, the Confrontation Clause becomes relevant only when a nonparty's statements are admitted against a defendant. Here, it is at least arguable that Noria himself was the declarant of the challenged portions of the I-213s.

         We can safely assume Noria did not dictate the administrative codes on the forms or the notations indicating the subsequent dispositions of his encounters with immigration authorities. However, those are not the data Noria takes issue with. The thrust of his argument concerns only two lines from each I-213: the ones listing his birthplace and his country of citizenship as Mexico. As he admits, all biographical information on the forms came from Noria himself, either "from what [he] told the agent" or from "documents he had with him." In fact, because Noria's A-file contained no documents indicating his citizenship or birthplace, Noria concedes that the interviewing agents obtained all information from Noria's own oral responses to their questions. These facts indicate that Noria is the sole declarant of the I-213 data he challenges.

         Case law further supports this conclusion. In two cases discussed at greater length below, the Ninth and Eleventh Circuits both assumed that an alien is the declarant of all biographical information recorded on his I-213.[28] In fact, in the Eleventh Circuit case, the immigration agent who prepared the contested I-213s did testify, but the defense argued that the agent's testimony was insufficient to satisfy the Confrontation Clause because he was not the declarant, only the transcriber of the information supplied to him by the alien.[29] The Eleventh Circuit rejected this argument by concluding that I-213s are not testimonial, but it did not dispute the defendant's characterization of the aliens as the only relevant declarants.[30]

         This Court's own persuasive authority lends further support to the alien-as-declarant theory. In United States v. Montalvo-Rangel, an unpublished 2011 decision, we rejected the defendant's Confrontation Clause challenge to the admission of a Form I-215B.[31] An I-215B, formally titled a Record of Sworn Statement in Affidavit Form, is a report memorializing an alien's statements to an immigration agent made under oath and with the benefit of Miranda warnings.[32] The I-215B was signed by Montalvo-Rangel and contained an affirmation that its contents were accurate and honest.[33] The Court explained:

Montalvo-Rangel argues that because the agent who filled out the 2008 Form I-215B did not testify, Montalvo-Rangel was denied his constitutional right to "confront" a witness. The "form" in question, however, is actually an affidavit executed by Montalvo-Rangel. Although it was typed by an immigration officer, it was signed and attested to by Montalvo-Rangel. In that respect, it is no different from a person's dictating an affidavit to an assistant before signing it-the "witness" in such a situation is the individual dictating and signing the affidavit, not the one who transcribed it. . . . The form is nothing more than a statement by Montalvo-Rangel; accordingly, the only witness he has the right to confront is himself.[34]

         Noria's I-213s are distinguishable from Montalvo-Rangel's I-215Bs in several respects: Noria was not Mirandized, [35] he did not sign the I-213s, and they contain processing codes and disposition information that must have been supplied by the interviewing officer, not Noria. However, the key information Noria contests-his country of citizenship-was supplied by Noria. At least as to that data, the logic of Montalvo-Rangel would situate Noria as the "witness" and the interviewing officer as a mere transcriber.

         Given these precedents, it is quite possible the Confrontation Clause is not implicated in this case. However, because the issue was not briefed or argued, we will proceed to the merits of the Confrontation Clause issue by assuming, without deciding, that the immigration agents who prepared Noria's I-213s were the declarants of the statements contained therein.


         The Sixth Amendment status of Form I-213s is a question of first impression in this Circuit. However, two of our sister circuits have addressed the question, and we agree with them that I-213s are not testimonial. Their reasoning is instructive. In United States v. Caraballo, the defendant was convicted of alien smuggling after a marine patrol officer discovered eleven undocumented immigrants on board his fishing boat.[36] Immigration agents interviewed the aliens and recorded their "routine biographical information" on I-213s.[37] At trial, the district court admitted the first page of each I-213 over Caraballo's objection "to demonstrate that the aliens found on Caraballo's boat were deportable and inadmissible."[38]

         The Eleventh Circuit rejected Caraballo's Confrontation Clause challenge. The court reasoned that the forms were not testimonial because they contained only "basic biographical information," such as name, birthplace and birthdate, and citizenship, "gathered . . . from the aliens in the normal course of administrative processing."[39] The Eleventh Circuit concluded that "[t]he I- 213 form is primarily used as a record . . . for the purpose of tracking the entry of aliens," and it emphasized that "[t]he Supreme Court has instructed us to look only at the primary purpose of . . . questioning in determining whether the information elicited is testimonial."[40] Thus, although an I-213 might eventually ...

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