F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

L U I S R U I Z

- L O P E Z , D efendant-Appellant

. No. 13-10093

D.C. No. 5:11-cr-00749-L HK-1

OPI NI ON

Appeal from the United States District Court for the Northern District of California L ucy Koh, District J udg e, Presiding

Arg ued and Submitted March 12, 2014—San F rancisco, California

F iled April 25, 2014

B efore: M. Marg aret McKeown and Ronald M. Gould, Circuit J udg es, and Gordon J . Quist, Senior District J udg e. *

O pinion by

J udg e Gould

* T h e Ho n o rab le Go rd o n J

. Q u i st, S en io r D istrict J u d g e f or th e U .S. District C o urt f

o r th e W estern D istrict o f Mich ig an , sittin g b y d esig n atio n

.U N I T E D S T A T E S V

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U I Z -L O P E Z 2

SUMMARY * *

Crim inal Law

The panel affirmed the district court’s denial of a motion for judg ment of acquittal in a case in w hich the defendant was convicted of illeg al reentry following deportation.

The p anel h eld that the evidence presented was sufficient
to prove alienag e bey o nd a reasonable doubt. The panel h eld that so long as the documents in an A-file, including a F orm I -213, have been properly admitted, and t h e jury has been instructed as to the “bey ond a reasonable doubt” st an dard, such documents may be considered by the j u r y a n d, depending o n their contents, may constitute sufficient proof of alienag e if the jury so c oncludes. Reg a rding the defenda n t ’s challeng e to the reliability of the F orm I -213 in this case, the panel held that a rational trier of f act c ould

come to the concl u s ion that the F orm I

- 213 accurately captured the defendant’s interview with a DHS ag ent.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Karen L

. L andau (arg ued), Oakland, California, f o r Defendant-Appellant.

Susan B

. Gray ( argued), A s s i s t ant U nited States Attorney
, Melinda Haag
, United States Attorney
, B arbara J

. Va l l iere, Chief, A p p ellate Division, D epartment of J ustice, San F rancisco, California, for Plaintiff-Appellee.

OP INION

GOUL D, Circuit J udg e :

L uis Ruiz -L opez , c onvicted of ille ga l reentry following deportation under 8 U .S.C. § 1326(a) and (b )
, s e e ks a judg ment of acquittal. He claims that the g overnment did not present evidence sufficient to prove his alien a ge bey ond a

reasona b le doubt. B ecause we conclude that sufficient evidence supported the jury ’s finding of alienag e, we affirm the district court’s denial of a judg ment of acquittal.

I

I n December 2002, Ruiz -L opez was interviewed in the Solano County J ail in F airfield, California by Department o f Homeland Security (“DHS”) Ag ent Ax el Sauter. F rom 1997
to 2002, A g e nt Sauter was assig ned “to inter view a liens

e n c o untered in the United States to determine their status, ” and he conducted about 600 interviews a y ear. Althoug h not fluent in S p a n i s h, Ag ent Sauter received Spanish lessons a s part of his training and did “more than half” of his interviews
at the Solano County jail in Sp a n ish. I t was his “reg ularU N I T E D S T A T E S V

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practice” to terminate the interview if lang uag e proved to be

a barrier to c ommunication. Ag ent Sauter co n d u cted e ach interview the same w ay a ccording to his “pa ttern a nd
p r actice.” H e would take handwritten notes during t h e i nterview, and then ty

pe those n otes and enter them o n t o a Record of Deportable/I

nadmissible A lien form (“F o rm I

213”) within a day

. None of the information entered onto the F orm I -213 was taken from state o r federal i n d i ces o r filled in before the interview, althoug h Ag ent Sauter would look at such indices before an interview to confirm any relevant information.

Ruiz -L opez was arrested in 2011 in Northern California. During Ruiz -L opez ’ s jury trial fo r illeg al reentry , Ag ent Sauter testified that he could not remember Ruiz -L opez , but Ag ent Sauter recog niz ed his o w n s ig nature and n ame on Ruiz -L opez ’s F orm I -213. The F orm I -213 relating to Ruiz

L opez w as created following Ag e nt Sauter’s usual pattern a nd practice.

Ag ent Sauter testif

i e d that Ruiz

- L opez told him that: (1) he “was bo r n i n Z amora, Michoacan, Mex ico”; ( 2) in 1997, Ruiz -L opez entered the United States near Noga l e s, Ariz ona, without inspection after h aving used the services o f

a “coyo te,” o r smug g ler, f or the price o f $ 800; a

nd (3) his father a nd mother were both born in Mex ico, but they were in the United States as lawful permanent residents. Ruiz -L opez said that he did not fear persecution if he returned to Mex ico, that he had n o pending application for status in the United States, and that his parents had not applied for any kind o f benefit on his behalf.

Ag ent Cou r t n ey Norris of the I mmig ration and Customs Enforcement (“I CE”) testified about the documents in Ruiz

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L opez ’s A-file, which i s the “official record for an individual” recording “all of that i ndividual’s contacts o r encount e rs with I mmig ration Customs Enforcement, Citiz enship and I mmig r a t ion Services, Custom and B order Protection, and the L eg acy I NS.” R u iz -L opez ’s A-file contained the following documents: (1) the F orm I -213; (2) a Not ice of I ntent to I ssue a F inal Administrative Removal Order ( “ Fo r m I -851”); (3) a F inal A dministrative Removal Order (“F o rm I -85 1 A ” ) ; (4) a W arning to Alien Ordered Removed or Deported, in En g lish and Spanish (“F orm I

294”); and (5) a W a

r rant of Removal/Deportation ( “F orm I

205”).

The F orm I -851 was served on Ruiz -L opez nineteen day s before his removal

. I t notified him that the I NS h ad determined that he was subject to ex p edite d a d m inistrative removal b ased on alleg a tions that he w as not a citiz en o r national of the United States, was a native and citiz en o f Mex ico, had entered the United States near Nog ales, Ariz ona, without inspection, and was not elig ible for any statutory relief from deportation. That form also had a section titled “Your Rig hts and Responsibilities” t h a t t old Ruiz -L opez o f his rig hts, and he acknowledg e d receipt of t h at notice b y sig ning it at the t o p o f the second pag e, using h is a lias Luis Rodrig uez

. At the bottom of that pag e, the box admitting the alleg ations and waivi n g h is rig ht to c ontest the charg es o r petition for review of the F inal Removal Order had b een prechecked. Ru i z

- L opez ’s sig nature and fing erprint o n that F orm I -851 were witnessed by a detention officer.

The other forms were also served on Rui z

- L opez

. The F orm I -294 was served o n Ruiz

- L opez in both Eng lish a nd Spanish, and it told h im that he had been found deportable, that he was time barred from reapply ing f or permissio n t oU N I T E D S T A T E S V

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enter the U nited S t a t e s , and of the leg al consequences if he

were to ree n t er i l leg ally

. On both the E ng lish and Spanish forms, Ruiz -L opez h and-mark e d and initialed box e s

a c k n o w l ed g i n g r eceipt, sign e d t h e m , a n d a t t a c h e d fing erprints. A g ent Norris admitted that sometimes the box e s detailing that the form had been e x plained d o not g et checked, but “the pattern and practice is to ex plain [ the form] .”

Ruiz -L opez ’s Record of Sworn Statement, taken after his
arrest in 2011, was also admitted in evidence with redaction. Ag ent Norris testified t h a t in the area d escribing languag e s spoken by Ruiz -L opez , the Spanish b ox had been pre-printed

as checked, but the E n g lish box was checked by hand and the form specified that an interpreter was not used.

At the close of the g overnment’s case, Ruiz -L opez moved for judg ment of acquittal under F e de r a l R u le of Criminal Procedure 29 based on insufficient evidence e stablishing that he was an alien. The district court denied this motion. After the g uilty verdict, the motion was renewed and ag ain denied.

II

W e review de novo the district court’s denial of a motion for judg ment of acquittal based on insufficie n t evidence. United S tates v. Acosta-Sierra
, 690 F .3d 1111, 1117 (9th Cir. 2012). U nder Jackson v

. Virginia
, 443 U.S. 307, 319 (1979),

we view the e vidence in the lig ht most favorable to the prosecution, and then determine whether any rational trier o f fact c ould have found the e ssential elements of th e c rime bey ond a reasonable doubt. United S tates v. Nevils
, 598 F .3d 1158, 1167 (9th Cir. 2010) (en banc). This standard,
p r o t e c ting the key role of the jury in determining g uilt o rU N I T E D S T A T E S V

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i n n o ce n ce of crime, cannot be met by a person c onvicted i n jury trial, when the jury heard evidence that would p er m i t it
to find guilt bey ond a reasonable doubt on all the essential elements of the crime.

Ruiz -L opez contends that the evidence presented at trial

was insufficient for a jury to f ind h is alienag e bey ond a reasonable doubt

. To be c o n victed of illeg al reentry under 8 U.S .C. § 1326, the g o vernment must prove that “the defendant was an alien a t the time of the defendant’s entry into the United States.” Ninth Cir c u i t Criminal J ury I nstruction 9 .8 (2010). “ [N] either a deportation order, nor the defendant’s own admissions, standing alone,” is sufficient to prove alienag e

. United States v. Ramirez-Co rtez , 213 F .3d 1149, 1 158 (9th Cir. 2000) ( internal c itations omitted); see

a lso United States v. Sotelo
, 109 F .3d 1446, 1449 ( 9 t h C i r. 1997).

W e conclude that the evidence presented was sufficient to find the requisite alienag e. Ruiz -L ope z arg ues that United States v. Ortiz-Lop e

z , 24 F .3d 5 3 (9th Cir. 1994), is controlling

. I n that case, we h e l d that a deportation order alone was not sufficient to support a finding of alienag e. Id

. W e declined t o shift the burden of p r oof by requiring a defendant to overcome a presumption of alienag e created by

a d eportation order. Id

. at 56; see United States v

. NoriegaPerez , 670 F .3d 1033, 1039 n.5 (9th Cir. 2012) (finding that “the circu m s tantial evidence r elied on by the Government ‘does not implicate the burden-shifting or standards o f proof problems of Ortiz-Lopez ’” (quoting United States v. BarajasM ontiel
, 1 85 F .3d 947, 955 (9th Cir. 1999))). Rel y i n g o n Ortiz-Lopez
, Ruiz -L opez co n t en ds that the only evidence o f his alienag e is the deportation order, which, he a ss e r ts, includes the F o rm I -213 and all of the documentation in t heU N I T E D S T A T E S V

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A-file because those documents relied upon and flowed from the F orm I -213. At the same time, R u i z

- L o p ez seeks to undermine the credibil i t y o f the F orm I -213 b y sug g esting that Ag ent Sauter’s r en d e ring of the interview was f lawed because of practices or potential lang uag e issues.

W e reject these ar g uments. A lthoug h we have consistently barred reliance on a deportat i o n order alone to prove alienag e, the F orm I -213 a n d other documentation included in Ruiz -L opez ’s A-file are n ot a “deportation order.” The F orm I -213 starts the d ep o r t ation process, but is not an “order.” See U

nited States v. Garcia-Villegas
, 575 F .3d 949, 951 (9th Cir. 2009) (describing information similar to that in the F orm I -213, including method of illeg al entry , as evidence of alienag e ); United States v

. Bahena-Cardenas
, 411 F .3d 1067, 1076 (9th Cir. 2 005) ( referring to “evidence o f deportation” rather than all of the evidence leading to t h at deportation). This v iew is supported b y U n i ted States v

. Hernandez
, 105 F .3d 1330, 1 333 ( 9th Cir

. 1 9 9 7 )
, where we concluded that, along with a deportation order, “the fact that Hernandez entered the U nited States by s caling the border fence rather than via an establi shed border checkpoint is an indication that Hernandez entered the United States illeg ally

as an alien.” I nformation l i k e t h at p resented in Hernandez

was included in Ruiz

- L opez ’ s F orm I

- 213,which said that he had employ e d a coy o te to smug g le him into the country for the sum of $800. T his is more information than the mere fact of Ruiz -L opez ’s prior deportation. Ruiz -L opez ga v e other information c orroborating his likely alienag e during the

course of the in terview, and tog ether this evidence is sufficient to p rove alienag e. See United State s v

. GalindoGallegos
, 244 F .3d 728, 732 (9th Cir. 2001) (“A defendant’s

a d m issions that he is a

n alien, tog ether with a deportation order, suffice to establish a lienag e.”); R amirez-Cortez
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213 F .3d at 1158 (finding sufficient t h e “prior deportation order, admis sions Ramirez -Cortez made in his underly ing deportation p roceeding, a n d the testimony of an I NS ag ent that his rev i e w o f

. . . [ the] records reflected that Ramirez

C o rtez was a

n alien”). Ruiz -L opez ’s premise that the Fo r m I -213 is equivalent to the order o f deportation is mistaken. So l o n g as the documents in an A-file have been p roperl y admitted in the criminal case, and the jury has been instructed

as to the “ b e y ond a reasonable d oubt” standard, which is hig her tha n the standard required in a deportation hearing
, such documents m a y b e considered by the jury and, depending o n their con t e n ts, may constitute sufficient proof of alienag e if the jury

so concludes.

Additionally
, under Jackson
, we must consider evidence in t he lig h t most f

avorable to the prosecution. 443 U.S. at 319. “[ A] c ourt of appeals may not u s u r p t h e r ole of the finder of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial.” Nevils
, 598 F .3d a t 1164. The g overnment presented evidence rebutting lang uag e barrier or inaccuracy issues, including A ge nt Sauter’s standard practices and the presentation o f F orm I -294 in both E n gl i s h and Spanish, a s well as Ruiz -L opez ’s sig nat u r e s and fing erprints o n several of the f orms. Viewed in the lig ht most favorable to the prosecution, this evi d ence is sufficient to find that Ruiz

L opez spoke at least some Eng lish and that the F orm I -213

was accurate. Ruiz -L o pez argu es that the facts “undermine the reliability of the F orm I -213 in this case.” B ut w h ile the evidence could support a d i ff e r ent result, a rational trier o f fact could certainly come to the conclusion tha t the F orm I

213 a ccurately captured Ruiz -L o pez ’s interview with A g ent Sauter.U N I T E D S T A T E S V

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I n this ca s e, the jury could have decided that alienag e was, or was n o t, e stablished bey ond a reasonable doubt. U n d e r Jackson
, the jury verdict must stand where, as he r e, af t e r r eceiving proper instructions, the jury concluded that Ruiz -L opez was g u ilty on all elements of illeg al reentry a nd the verdict is supported with sufficient evidence. 443 U .S. at 319. F or the re a s o n s ex pressed above, the district court did not err in deny

ing a judg ment of acquittal.

AF F IRMED.