FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30011 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00085-a-JMF

DAL VAN NGUYEN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, District Judge, Presiding

Argued and Submitted

May 1, 2006—Seattle, Washington

Filed October 18, 2006

Before: Stephen Reinhardt, M. Margaret McKeown, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

17631
COUNSEL

Kevin F. McCoy, United States Assistant Federal Defender,

Anchorage, Alaska, for the appellant. 

Deborah M. Smith, Acting United States Attorney; Todd

Mikolop, Special Assistant United States Attorney; Thomas

C. Bradley (argued), Assistant United States Attorney,

Anchorage, Alaska, for the appellee.

17634 UNITED STATES v. NGUYEN
OPINION

CLIFTON, Circuit Judge: 

Defendant Dal Van Nguyen appeals his conviction under 8

U.S.C. § 1253(b) for willful failure to comply with terms of

release under supervision. The term in question required that

Nguyen not “commit any crimes.” His conviction was based

solely upon proof that he had previously been convicted of

two Alaska state misdemeanors following pleas of nolo contendere. Nguyen argues on appeal that, because a nolo contendere plea is not an admission of guilt to the underlying

crime, a conviction based on such a plea does not prove that

he “commit[ted] any crimes.” He further argues that his state

convictions should not have been admitted into evidence in

his trial on the federal charge. We agree and reverse the conviction. 

I. Background

Nguyen, a citizen of Vietnam, lawfully immigrated to the

United States in 1990, when he was a teenager. A decade

later, he was convicted as an adult of a misdemeanor drug

possession offense and ordered removed to Vietnam. Because

the United States and Vietnam do not have a repatriation

agreement, however, the Government has not been able to

remove Nguyen. Consequently, the Bureau of Immigration

and Customs Enforcement (“ICE”) released Nguyen from

immigration custody but imposed upon him an order of supervision, pursuant to 8 U.S.C. § 1231(a)(3). One of the conditions of this order states that Nguyen is to “not commit any

crimes while on this Order of Supervision.” 

Two years later, in state court, Nguyen pleaded nolo contendere to, and was convicted of, two misdemeanors: criminal

mischief in the fourth degree, in violation of Alaska Statutes

§ 11.46.484, and assault in the fourth degree, in violation of

Alaska Statutes § 11.41.230(a)(3). Thereafter he was charged

UNITED STATES v. NGUYEN 17635
with willful failure to comply with the terms of release under

supervision, in violation of 8 U.S.C. § 1253(b), a criminal

statute under the Immigration and Naturalization Act

(“INA”). Nguyen was tried before a jury.

At trial, to prove that Nguyen violated his order of supervision by committing crimes, the Government presented as its

only evidence certified copies of the two state court judgments of conviction resulting from the pleas of nolo contendere. Nguyen objected, arguing that the judgments were

hearsay and were also inadmissible under Federal Rule of

Evidence 410, which provides that pleas of nolo contendere

are ordinarily not admissible into evidence. The district court

overruled the objections and admitted the judgments, without

explaining the basis for doing so. At the close of the Government’s case, Nguyen moved for a judgment of acquittal, arguing that the misdemeanor nolo contendere convictions were

legally insufficient to prove that he committed the underlying

crimes, in willful violation of his order of supervision. The

district court denied the motion. The jury found Nguyen

guilty of violating 8 U.S.C. § 1253(b), and the district court

sentenced him to one year in prison. Nguyen timely appealed.

II. Discussion

This court reviews the district court’s evidentiary determinations for an abuse of discretion. See United States v. Beltran, 165 F.3d 1266, 1269 (9th Cir. 1999). The district court

abuses its discretion when its evidentiary rulings are based on

“an erroneous view of the law or a clearly erroneous assessment of the facts.” United States v. Morales, 108 F.3d 1031,

1035 (9th Cir. 1997). We review de novo the district court’s

denial of a Fed. R. Crim. P. 29 motion for judgment of acquittal. See United States v. Lombera-Valdovinos, 429 F.3d 927,

928 (9th Cir. 2005). Specifically, we review de novo the legal

question of whether a misdemeanor conviction based on a

nolo contendere plea is sufficient proof that the underlying

17636 UNITED STATES v. NGUYEN
crime was committed. See United States v. Poellnitz, 372 F.3d

562, 565 (3d Cir. 2004). 

A. The Proof Necessary to Sustain a Conviction under 8

U.S.C. § 1253(b)

[1] The Government charged Nguyen with violating 8

U.S.C. § 1253(b), which states: “An alien who shall willfully

fail to comply with regulations or requirements issued pursuant to section 1231(a)(3) of this title . . . shall be fined not

more than $1,000 or imprisoned for not more than one year,

or both.” The “regulation or requirement” incorporated by reference was the ICE order of supervision, specifically the

requirement that Nguyen “not commit any crimes.” Thus, to

convict Nguyen, the Government had to prove that he had

committed one or more crimes. That is not quite the same as

proving that he had been convicted on criminal charges. Even

if Nguyen had not been previously convicted on the underlying state court charges, for instance, he could be convicted on

the federal charge based upon proof that he had, in fact, actually committed the crimes of assault and criminal mischief. 

[2] The Government’s evidence consisted solely of the two

certified judgments of conviction. The judgments were

offered to provide the jury with a basis to infer that Nguyen

actually committed the underlying crimes, in violation of his

order of supervision. But the law does not support that inference. Each conviction resulted from a plea of nolo contendere, which is a special creature under the law. It is, first

and foremost, not an admission of factual guilt. See North

Carolina v. Alford, 400 U.S. 25, 36 (1970). It merely allows

the defendant so pleading to waive a trial and to authorize the

court to treat him as if he were guilty. See also id. at 37 (“An

individual accused of crime may voluntarily, knowingly, and

understandingly consent to the imposition of a prison sentence

even if he is unwilling or unable to admit his participation in

the acts constituting a crime.”). The availability of the nolo

contendere plea to the criminally accused reflects society’s

UNITED STATES v. NGUYEN 17637
“desire to encourage compromise resolution of criminal

cases.” Olsen v. Correiro, 189 F.3d 52, 60 (1st Cir. 1999). For

these reasons, “the nolo plea does not bear the same indicia

of reliability as a guilty plea when used as evidence of underlying culpability.” Id. at n.8 (citing Fed. R. Evid. 410 advisory

committee notes, 1972 proposed rules). A conviction resulting

from a nolo contendere plea under these circumstances is not

by itself sufficient evidence to prove a defendant committed

the underlying crime. 

B. Admissibility of the Evidence

Our understanding of the inferences which may properly be

drawn from nolo contendere convictions is supported by the

limitations imposed on their admissibility under the Federal

Rules of Evidence. Those judgments should not have been

admitted into evidence in Nguyen’s trial. 

Our review of the evidentiary challenge is complicated by

the fact that the district court admitted the judgments without

explaining the evidentiary basis for doing so. We examine in

turn each of the three grounds upon which the parties agree

the district court could have attempted to justify admitting the

evidence: Rules 410, 803(8), and 803(22). We conclude that

the admission of the evidence under any of these rules was an

abuse of discretion. 

1. Federal Rule of Evidence 410

[3] Rule 410 states, in relevant part: “Except as otherwise

provided in this rule, evidence of the following is not, in any

civil or criminal proceeding, admissible against the defendant

who made the plea or was a participant in the plea discussions: . . . a plea of nolo contendere . . . .” The Government

points out that the language of Rule 410 bars only the admission of “nolo contendere pleas,” not the convictions resulting

from them. The First Circuit has suggested, though, that the

rule should prohibit the admission of the nolo contendere con17638 UNITED STATES v. NGUYEN
viction if it “were offered for the purpose of demonstrating

that the pleader is guilty of the crime pled to.” Olsen, 189

F.3d at 60. In that situation, which is precisely the one presented here, “the nolo plea would in effect be used as an

admission and the purposes of Rule 410 would be undermined.” Id. 

[4] We agree. Reading the rule to preclude admission of a

nolo contendere plea but to permit admission of conviction

based on that plea produces an illogical result. Rule 410’s

exclusion of a nolo contendere plea would be meaningless if

all it took to prove that the defendant committed the crime

charged was a certified copy of the inevitable judgment of

conviction resulting from the plea. We hold that Rule 410

prohibits the admission of nolo contendere pleas and the convictions resulting from them as proof that the pleader actually

committed the underlying crimes charged. 

2. Federal Rule of Evidence 803(22)

[5] Rule 803(22) provides an exception to the bar of the

hearsay rule for certain criminal judgments of conviction, but

that exception does not apply to Nguyen’s two state convictions. That rule states: “Evidence of a final judgment, entered

after a trial or upon a plea of guilty (but not upon a plea of

nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year [is

admissible] to prove any fact essential to sustain the judgment

. . . .” In short, Rule 803(22) allows judgments of felony convictions resulting from guilty pleas to be admitted into evidence but not convictions resulting from nolo contendere

pleas and not misdemeanor convictions. According to the

Advisory Committee Notes accompanying the rule, nolo contendere convictions are inadmissible “consistent with the

treatment of nolo pleas in Rule 410,” and misdemeanor convictions are inadmissible because “motivation to defend at

this level is often minimal or nonexistent.” The admission into

evidence of Nguyen’s misdemeanor nolo contendere convicUNITED STATES v. NGUYEN 17639
tions failed on both scores and was inconsistent with Rule

803(22). 

3. Federal Rule of Evidence 803(8)

[6] The judgments of conviction could not properly have

been admitted under Rule 803(8), either. That rule exempts

from the hearsay rule public records and reports. That more

general reference in Rule 803(8) cannot trump the more specific limitation on the admission of judgments of conviction.

All judgments of conviction may be said to be public records,

but the exemption under Rule 803(8) cannot be deemed to

cover such judgments because it would make Rule 803(22)

superfluous. See United States v. Weiland, 420 F.3d 1062,

1074 (9th Cir. 2005) (noting that evidence cannot be admitted

under a general evidentiary rule in order to circumvent a more

specific rule prohibiting admission). 

Our circuit has previously affirmed the admission into evidence of misdemeanor judgments of conviction under this

rule in certain circumstances. See United States v. Loera, 923

F.2d 725, 730 (9th Cir. 1991); United States v. Wilson, 690

F.2d 1267, 1275 n.2 (9th Cir. 1982). In these cases, however,

the misdemeanor judgments of conviction were not admitted

for the purpose of proving that the defendant committed the

underlying crimes charged therein. Rather, the convictions

tended to prove some other element of subsequent crimes

charged. In Loera, a defendant’s prior drunk driving misdemeanor judgments of conviction were admitted for the limited

purpose of establishing the element of malice required for

second degree murder, i.e., that the defendant had grounds to

be aware of the risk that drunk driving presented to others.

923 F.3d at 729. Similarly, in Wilson, at the defendant’s trial

on escape charges, his prior misdemeanor judgment of conviction for counterfeiting was admitted to establish that he

had been incarcerated at the time that he was alleged to have

escaped. 690 F.2d at 1275. 

17640 UNITED STATES v. NGUYEN
[7] The admission of misdemeanor judgments of conviction

under Rule 803(8), per Loera and Wilson, should be confined

to the set of circumstances present in those cases. In other

words, misdemeanor judgments of conviction may be admissible under Rule 803(8) to prove some other element of a subsequently charged crime, but they are not admissible to prove

that the defendant actually committed the underlying crimes

charged. See Olsen, 189 F.3d at 63 (citing 4 Mueller & Kirkpatrick, Federal Evidence, § 471, at 660). Without this limitation to its reach in place, Rule 803(8) would swallow whole

Rule 803(22)’s prohibition against the admission of misdemeanor convictions resulting from pleas of nolo contendere.

Such a result could not have been intended by the drafters of

the Federal Rules of Evidence. In short, there was no basis

under the Federal Rules of Evidence for the district court to

have admitted the certified copies of Nguyen’s misdemeanor

nolo contendere convictions. 

C. The Fact of Conviction Does Not Trigger Criminal

Liability under 8 U.S.C. § 1253(b)

[8] Finally, we briefly address and reject an alternative

argument presented by the Government on appeal. The Government contends that the fact of conviction alone triggered

criminal consequences under 8 U.S.C. § 1253(b), regardless

of the nature of the plea leading to that conviction. In support

of this argument, it notes that 8 U.S.C. § 1253(b) is a criminal

provision of the INA, which elsewhere defines “conviction”

to include convictions resulting from nolo contendere pleas.

See 8 U.S.C. § 1101(a)(48)(A). If 8 U.S.C. § 1253(b) criminalized the act of being convicted, then the fact that the conviction resulted from a nolo contendere plea would truly be

irrelevant. As we have discussed earlier, however, the statute

and the term of the order of supervision that it incorporates by

reference both premise criminal liability on the act of “commit[ting] any crimes,” not the act of being convicted. Thus,

the INA’s “conviction” definition is of no consequence. 

UNITED STATES v. NGUYEN 17641
[9] Equally unavailing are the cases cited by the Government in which the fact of prior conviction triggered collateral

consequences in administrative hearings. See Abimbola v.

Ashcroft, 378 F.3d 173, 174 (2d Cir. 2004); Myers v. Sec’y of

HHS, 893 F.2d 840, 841-42, 845 (6th Cir. 1990); Pearce v.

U.S. Dep’t of Justice, 836 F.2d 1028, 1029 (6th Cir. 1988)

(per curiam); Crofoot v. U.S. Gov’t Printing Office, 761 F.2d

661, 665 (Fed. Cir. 1985). At issue here is a criminal prosecution. The consequences of administrative proceedings are not

the same as a criminal prosecution, and the burdens of proof

and rules of evidence are different. The Government was

required here to bear the burden of proving in court, beyond

a reasonable doubt, that Nguyen committed crimes while

under supervision. Proof of his misdemeanor convictions

based on his nolo contendere pleas did not carry that burden.

III. Conclusion

Nguyen’s conviction must be reversed. The misdemeanor

nolo contendere convictions were legally insufficient to support Nguyen’s conviction for violating 8 U.S.C. § 1253(b).

Moreover, the convictions should not have been admitted

under Rules 410, 803(22), or 803(8) for the purpose of proving that Nguyen actually committed the underlying crimes

charged. In this situation, the Government is prohibited from

retrying Nguyen on the 8 U.S.C. § 1253(b) charge. See United

States v. Bibbero, 749 F.2d 581, 586 n.3 (9th Cir. 1984) (“If

all the evidence the government produced at a defendant’s

first trial, including that which should not have been admitted,

is insufficient to support the conviction, then the government

has had its proverbial ‘one bite at the apple’ and any retrial

would be forbidden.”). 

REVERSED. 

17642 UNITED STATES v. NGUYEN