* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 11 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 02-2027

v. (D.C. No. CR-01-628-LH) BERNARDO TORRES-REYES, (D. New Mexico)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore orde red submitted without oral argument. Appellant was found guilty of reentry of a deported alien previously convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a)(1), (2), and (b)(2). He was sentenced to eighty-six months’ imp risonment. Appellant now-2-

appeals his conviction, contending that: 1) the Me xican birth certificate should not have been admitted into evidence because it had not been properly authenticated; 2) the INS forms used as evidence we re hearsay; 3) the district court erred in ruling that Appellant’s testimony re garding his birthplace was hearsay; 4) there was insufficient evidence to supp ort his conviction; and 5) he received ineffective assistance of counsel. Appellant’s first three contentions are evidentiary challenges which are reviewed for an abuse of discretion. United States v. Lugo , 170 F.3d 996, 1005 (10th Cir. 1992). Appellant first contends that th e district court erred in admitting his Mexican birth certificate into evidence withoutproper authentication of foreign documents as set forth in Federal Rule of E vidence 902(3). First, he alleges that the document was not self-authenticati ng. Appellant further argues that, because the Government did not produce a cert ification of genuineness made by a diplomatic or consular official, the birth certificate was not authenticated. The Government maintains that the document was self -authenticating and was then further authenticated by the testimony of Agent Heinlein who established ample foundation for its authenticity. Additionally, the document was provided to Appellant before trial to enable him to investigate the document’s accuracy and authenticity. After hearing testimony from Agent Heinlein that he believed the document-3-

was genuine and that the Mexican government produce d an updated document with identical information (but refused to certify the document for fear of Vienna Convention repercussions), the district court judge allowed the birth certificate to be entered into evidence. Federal Rule of Evidence 902(3) provides that docum ents produced by foreign governments are self-authenticating if executed or attested in an official capacity by a p erson authorized by the laws of a foreign country to make the execution or attestation . . . [when] accompanied by a final certification as to t he genuineness of the signature and official position (A) of the exec uting or attesting person, or (B) of any foreign official whose certif icate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the exe cution or attestation . . . . If reasonable opportunity has been given t o all parties to investigate the authenticity and accuracy of offici al documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or withoutfinal certification. Since reasonable opportunity was given to all parti es to investigate the authenticity and accuracy of Appellant’s Mexican bi rth certificate, we hold that the district court did not err in ordering that it be treated as presumptively authentic. Appellant next contends that the district court err ed in admitting into evidence the documents from the “A” file of Appella nt maintained by the INS because the documents contained hearsay. While the documents that Appellant-4-

contests do contain hearsay, they are admissible be cause they fall under an exception to the hearsay rule as records of regular ly conducted activity pursuant to Fed. R. Evid. 803(6). We find no abuse of discr etion in the district court’s decision to admit the documents. Appellant further argues that the district court er red in refusing to let Appellant testify about what his deceased mother ha d told him regarding his place of birth because such information is an exception t o the hearsay rule pursuant to Fed. R. Evid. 803(19) as a declaration of family hi story. The Government maintains that the district court properly excluded the hearsay statements of Appellant’s mother because there was no basis for the admission of such inherently unreliable hearsay. Rule 803(19) provides that “[t]he following are notexcluded by the hearsay rule, even though the declarant is available as a w itness: . . . Reputation among members of a person’s family . . . concerning a per son’s birth . . . .” We cannot find any authority that specifically allows or disa llows hearsay in Appellant’s distinct situation. Appellant cites to United Stat es v. Jean-Baptiste , where the Second Circuit held that “members of a family may t estify with regard to the common understanding as to the birth of another fam ily member.” 166 F.3d 102, 110 (2d Cir. 1999). This case provides little guid ance. Appellant’s mother was never identified and could not testify at trial bec ause she is deceased. However, it-5-

is unnecessary for us to decide if the exclusion of Appellant’s mother’s hearsay statements was error because the statements would h ave been cumulative. Appellant testified that he was born in the United States. If there were any error on the part of the district court, it was harmless. See United States v. Porter , 881 F.2d 878, 884 (10th Cir. 1989). Appellant states, without support, that there was i nsufficient evidence to support his conviction. We review claims of insuff icient evidence de novo. United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Since Appell ant failed to provide any support for his claim, and af ter a thorough review of the record, we hold that the evidence supported the jury’s guilty verdict. The Government introduced ample evidence that Appellantwas an alien who had been deported to Mexico in 1999 and had subsequently bee n found in the United States without seeking permission to re-enter from the Att orney General as required by 8 U.S.C. § 1326. Appellant argues that he received ineffective assis tance of counsel due to a lack of effective communications. We are reluctant to hear claims of ineffective assi stance [of counsel which are] advanced for the first time in this court because we work at a distinct disadvantage when we operate without the factual development and judicial reasoning afforded by lowe r court proceedings. Therefore, only in the very rare inst ance that a claim of ineffective assistance is fully developed in the re cord will we hear it for the first time on appeal.-6-

United States v. Boigegrain , 155 F.3d 1181, 1186 (10th Cir. 1998) (citations omitted). This is not one of those “rare instances” that woul d permit consideration of Appellant’s ineffective assistance claims on directappeal. A review of the record reveals that the district court made no factual fin dings regarding Appellant’s claim; therefore, there is no record for us to revi ew. We will not consider an appeal until the record is reviewed and developed i n the trial court through an action brought pursuant to 18 U.S.C. § 2255. See id. For the above reasons, the conviction and sentence are AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge