United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1845

___________

United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Carlos Javier Fajardo-Fajardo, *

*

 Appellant. *

___________

Submitted: November 20, 2009

 Filed: February 12, 2010

___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

___________

MELLOY, Circuit Judge.

Carlos Javier Fajardo-Fajardo (“Fajardo”) appeals his conviction of being found

unlawfully within the United States after deportation, in violation of 8 U.S.C. §

1326(a). We affirm.

I.

On May 24, 2008, a Springfield, Missouri police officer initiated a traffic stop

for a vehicle driving erratically and without headlights. The driver identified himself

as Pedro Duran and presented a Mexico driver’s license and Mexico voter registration
card. After the driver failed a field sobriety test, the officer arrested him and

transported him to the Greene County, Missouri jail. During this encounter, the driver

told the officer that “he thought he was an illegal,” and that he was “waiting on his

green card.” The police obtained the driver’s fingerprints while he was in custody and

contacted Immigration and Customs Enforcement (“ICE”). Shortly thereafter, ICE

Agent Max Pulley interviewed the driver, who admitted that his true name was Carlos

Javier Fajardo-Fajardo, that he was a citizen of Honduras, and that he was present in

the United States illegally. Additionally, Fajardo reported that he was deported from

Denver, Colorado in 2004 and that he last entered the United States on February 5,

2007 on foot near El Paso, Texas without inspection or admission from any

immigration officer. 

On July 9, 2008, the Government charged Fajardo with being an alien found

unlawfully within the United States after deportation, in violation of 8 U.S.C.

§ 1326(a). The only contested issue at trial was whether the government provided

sufficient proof that Fajardo had not received the consent of the Attorney General of

the United States before March 1, 2003, or the Secretary of the Department of

Homeland Security after February 28, 2003, to apply for readmission to the United

States since the time of his deportation.1

 On that issue, the Government elicited

testimony from Agent Pulley regarding Fajardo’s Alien File (“A-File”), which

contains records of all contact between an individual and ICE and its predecessor

agency, the Immigration and Naturalization Service (“INS”). Agent Pulley testified

further that he was a custodian of Fajardo’s A-File, that he looked at every piece of

paper in Fajardo’s A-File, and that there was no record that Fajardo applied for or was

granted permission to re-enter the United States after deportation. The Government

also introduced a sworn statement from Fajardo, dated June 2, 2008. After being

1

In 2002, Congress transferred the authority to grant such consent from the

Attorney General to the Secretary of Homeland Security. See Homeland Security Act

of 2002, Pub. L. No. 107-296, §§ 402, 442, 116 Stat. 2135, 2177–78, 2193 (2002)

(codified at 6 U.S.C. §§ 202, 257).

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advised of and waiving his rights, Fajardo stated that he had not obtained permission

from the Attorney General or the Secretary of Homeland Security to re-enter the

United States after deportation. Lastly, ICE Agent Andrew Mitchell testified that he

searched the Citizenship and Immigration Service central index system (“CIS

database”), which contains records of aliens’ applications for benefits. Agent Mitchell

explained that ICE has “look-only” access to the CIS database. He also reported that

when he searched the CIS database using Fajardo’s name, date of birth, and alien

registration number, there was no record that Fajardo had received any benefit or

permission for any purpose, including a permanent resident alien card, also known as

a “green card.”

The jury found Fajardo guilty of the one count. Fajardo then moved for a

judgment of acquittal, arguing that the evidence was legally insufficient to prove the

lack-of-consent element of the charge. Specifically, Fajardo argued that the

Government was required to introduce a Certificate of Nonexistence of Record

(“CNR”), signed by an official authorized under federal regulations, to prove the

absence of consent to re-entry. The district court2

 denied the motion for acquittal and

sentenced Fajardo to sixty-three months’ imprisonment. Fajardo appeals his

conviction, arguing that the evidence was insufficient to support the guilty verdict. 

II.

In order to show a violation of 8 U.S.C. § 1326(a), the Government must

establish: (1) the defendant is an alien; (2) the defendant was previously denied

admission, excluded, removed, or deported from the United States or departed the

United States while an order of exclusion, deportation, or removal was outstanding;

(3) the defendant knowingly entered or was found in the United States; and (4) the

2

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

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defendant did not receive the consent of the Attorney General of the United States

before March 1, 2003 or the Secretary of Homeland Security after February 28, 2003,

to apply for readmission to the United States since the time of the defendant’s

deportation. 8 U.S.C. § 1326(a); see also United States v. Rodriguez-Arreola, 270

F.3d 611, 619 n.15 (8th Cir. 2001) (citation omitted); United States v. Diaz-Diaz, 135

F.3d 572, 575 (8th Cir. 1998). Only the evidence regarding the fourth element, the

absence of consent for re-entry, is at issue in this appeal. In reviewing the district

court’s denial of a motion for acquittal, we view the evidence “in the light most

favorable to the guilty verdict, resolving all evidentiary conflicts in favor of the

government, and accepting all reasonable inferences supported by the evidence.” 

United States v. No Neck, 472 F.3d 1048, 1052 (8th Cir. 2007). “A jury verdict will

not lightly be overturned and ‘we will reverse only if no reasonable jury could have

found the defendant guilty beyond a reasonable doubt.’” United States v. Thompson,

533 F.3d 964, 970 (8th Cir. 2008) (quoting No Neck, 472 F.3d at 1052). 

First, Fajardo contends that the Government’s proof was insufficient without

a CNR from an authorized immigration official. We recognize that prosecutors often

introduce a CNR as an official agency statement as to the nonexistence of an

application for readmission. See, e.g., United States v. Provencio-Sandoval, 272 F.

App’x 683, 684 (10th Cir. 2008) (unpublished); United States v. Urqhart, 469 F.3d

745, 747 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825, 830–31

(9th Cir. 2005); United States v. Martus, 138 F.3d 95, 97 (2d Cir. 1998) (per curiam). 

Furthermore, there is case law stating that a jury may reasonably conclude from a

CNR that a defendant did not receive consent to apply for readmission to the United

States from the Attorney General or Secretary of Homeland Security. See United

States v. Sanchez-Milam, 305 F.3d 310, 313 (5th Cir. 2002) (per curiam); United

States v. Mateo-Mendez, 215 F.3d 1039, 1045 (9th Cir. 2000). However, we have not

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held that a CNR is required for the government to satisfy its burden of proof.3

 Indeed,

we are aware of no such authority. Therefore, we will examine the sufficiency of the

evidence despite the absence of a CNR. 

At Fajardo’s trial, the government accomplished what it could otherwise do

with a CNR by eliciting testimony from ICE Agents. Agents Pulley and Mitchell

testified that they searched Fajardo’s A-File and the CIS database, respectively, and

did not find a record indicating Fajardo applied for re-entry into the United States. 

Fajardo argues that the testimony from Agents Pulley and Mitchell “should have been

stricken” because 8 C.F.R. § 103.7(d) does not authorize ICE Agents to certify records

or the non-existence of records. We disagree with Fajardo’s interpretation of that

regulation. 

Section 103.7(d) governs who may certify information from immigration

records “[w]henever authorized under [the Freedom of Information and Privacy Act]

or any other law . . . .” The INS delegated certification duties under § 103.7(d) “[i]n

order to provide more efficient management and expeditious responses to the

requester.” Availability of Service Records, 52 Fed. Reg. 3–01 (Jan. 2, 1987)

(codified at 8 C.F.R. § 103.7(d)). Section 103.7(d) does not regulate who may access

an A-File, who may search the CIS database, or who may testify about the contents

of an A-File or the results of a search in the CIS database. Indeed, immigration agents

regularly testify about the absence of records in the CIS database and A-Files in their

custody. See, e.g., United States v. Mendez, 514 F.3d 1035, 1040 (10th Cir.), cert.

denied, 128 S. Ct. 2455 (2008); United States v. Valdez-Maltos, 443 F.3d 910, 911

(5th Cir. 2006) (per curiam); Gonzalez Ramirez, 156 F. App’x at 686. As such, the

testimony from Agents Pulley and Mitchell was proper and sufficient for a jury to

3

Cf. United States v. Gonzalez Ramirez, 156 F. App’x 686, 687 (5th Cir. 2005)

(unpublished per curiam) (holding that CNR is sufficient to prove non-consent from

the Attorney General but noting, “we have not held that such a certificate is required

for the Government to meet its burden of proof.”).

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reasonably conclude that Fajardo did not receive permission to re-enter the United

States.4

Alternatively, the Government satisfied its burden of proof on the

lack-of-consent element by introducing Fajardo’s sworn statement, in which he

admitted he had not obtained permission from the Attorney General or the Secretary

of Homeland Security to re-enter the United States after deportation. Fajardo argues

that his inculpatory statements are legally insufficient because they were not

corroborated by “substantial independent evidence which would tend to establish the

trustworthiness of the statement.” Opper v. United States, 348 U.S. 84, 93 (1954). 

Fajardo’s confession, however, was corroborated by plenty of evidence—his use of

a false name, his counterfeit identification documents, his false statement to the

arresting officer about waiting on a green card, and the testimony from the ICE agents. 

As such, Fajardo’s corroborated confession was sufficient evidence to support the jury

verdict. 

III.

For the foregoing reasons, we affirm the judgment of the district court. 

______________________________

4

In passing, Fajardo challenges the Government’s proof as hearsay. The Agents

testified about what they observed when they searched Fajardo’s A-File and the CIS

database. Such statements are not hearsay. See Mendez, 514 F.3d at 1044 (holding

that as long as an immigration official testifies at trial about the absence of entry

documents and the relevant circumstances indicate an adequate search was performed,

the testimony is not hearsay); Valdez-Maltos, 443 F.3d at 911 (same). 

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