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

.

R O B E R T O L O P E Z , AKA Robert Hernandez , AKA Roberto Hernandez , AKA I ce, AKA Robert L o pez , AKA Roberto L opez , AKA Roberto L o pez -F rancisco, AKA Mario, AKA Roberto Mendoz a , AKA Roberto Mendoz a-Hernandez

,

Defendant-Appellant

. N o. 12-50464

D.C. No. 2:11-cr-00688- J AK-1

OPI NI ON

A ppeal from the United States District Court for the Central District of California J ohn A. Kronstadt, District J udg e, Presiding

Arg ued and Submitted O ctober 9, 2013—Pasadena, California

F iled April 2, 2014

B efore: Harry Preg erson, Kim McL ane W ardlaw,

a nd Richard C. Tallman, Circuit J udg es.

Opinion by

J udg e W ardlawU N I T E D S T A T E S V

. L O P E Z 2

SUMMARY *

Crim inal Law

Affirming a convi c t i o n for b eing an alien found in the United States after deportation, i n v i olation of 8 U .S.C. § 1 326, the panel held that § 1326 does not requi r e t he
g overnment to prove the ex istence of an order of deportation

as an e lement of t h e cr i m e in cases where the defendant has been deported or removed.

The panel held that a Verification of Removal is nontestimonial, and that its admission thus comports with the requirements of the Confrontation Clause. T he panel also held that the Verification of Removal is admissible u nder the public records ex ception to the rule ag ainst hearsay

.

The p a n el held that the evidence, including the Verification of Removal, was sufficient to support the verdict

even thoug h the district court clearly erre d by admitting a B order Patrol ag ent’s lay opinion testim o n y o n the ultimate question before the jury in the a b s e n ce o f personal knowledg e, in violation of F ed. R. Evid. 602 and 701.

The panel h el d that the district court did not a buse its discretion in deny ing without an evidentiary hearing the defendant ’ s m o t ion for a new trial based on an alleg ation o f false testimony

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt 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

. L O P E Z 3

COUNSEL

Davina T. Chen (arg

ued), L aw Office of Davi n a T

. C hen, Glendale, California, for Defendant-Appellant.

L

. Ashley Aull (arg

ued), Office of the United States Attorney
, L os Ang eles, California, for Plaintiff-Appellee.

OP INION

W A RDL AW , Circuit J udg e:

Roberto L opez F rancisco (“L opez ”) appeals his conviction following a jury trial for being an alien found in the United States after deportation, in violation o f 8 U.S.C. § 1326. W e ag r ee with the dis t rict court that 8 U.S.C. § 1326 d oes not require the g overnment to prove the

ex istence of an order of deportation as an el e m e n t of the

c r i m e in cases where the defendant has been deported o r removed. W e affirm L ope z ’s c o nviction despite the

erroneous admission o f lay opinion t e stimony by a key
g overnment w i tness b ecause the remaining e vidence o f phy sical removal, including L opez ’s Verification of Removal (F orm I -296), is leg ally sufficient to support the j u r y ’s verdict. We a lso conclude that the district court did n ot abuse its discretion in deny ing L o pez ’s motion for a new trial.

I

.

On F e bruary 9, 2010, L opez , a nat i v e and citiz e n o f Mex ico, was arrested outside L ukeville, Ariz ona a nd transferred to the B o rder Patrol Station in T ucson for processing

. L ukeville is on the United States–Mex ico border.U N I T E D S T A T E S V

. L O P E Z 4

The following day

, B order Patrol Ag ent Craig Harris i n t e r viewed and fing erprinted L opez at the Tucson statio n

. On F ebruary 11, 2010, a ccording to the g overnme n t , L o pez was transported b y bus to the Nog ales, Ariz ona p o rt of entry and removed from the United States across the border to M ex ico. On J une 22, 2011, an I CE officer arrested L opez outside his home in L o s Ang eles.

During the one-day trial, the go v ernment introduced a s Ex hibit 12 a N otice to A lien Ordered Removed/Departure Verification (F orm I -296) from L opez ’s A -F ile. 1 The form is used t o record the removal of a n individual from the United States during the ex pedited r emoval process. 2 This form has
two parts. The top half of the form, the “N o t i c e to Alien

1 “ T h e A lien F ile (A

- File), In d ex , an d Natio n al File T rack in g Sy stem of Reco rd s is th e of

f icial reco rd sy stem

th at co n tain s in f

o rm atio n reg ard in g tran sactio n s in v o lv in g an in d iv id u al as h e/s h e p a sses th ro u g h th e U .S. im m ig ratio n an d in sp e c t io n p ro cess.” P riv acy A ct o f 1 97 4 ; U .S. Citizen sh ip an d Im

m ig ratio n Serv ices, I m m ig ratio n an d Cu sto m s En f o rcem en t, Cu sto m s an d B o rd er P ro tectio n —0 0 1 A lien File, In d ex , an d Natio n al File T rack in g S y ste m o f Reco rd s, 7 6 Fed

. Reg

. 3 4 2 3 3, 3 4 2 3 4 (J u n e 1 3
, 2 0 11 ). “ T h e h ard co py p ap er A

- File, w h ich co n tain s th e o f

f icial

reco rd m aterial ab o u t each in d iv id u al f o r w h o m D HS h as created a reco rd

u n d er th e Im

m ig ratio n an d Natio n ality A ct s u ch as: Natu ralizatio n certif icates; v ario u s d o cu m en ts an d attach m en ts (e.g

., b i rth an d m arriag e certif icates); ap p l icatio n s an d petitio n s f o r b en ef its u n d er th e i m

m ig ratio n

an d n atio n ality law s; rep o rts o f arrests an d i n v e stig atio n s; statem en ts;

o th er rep o rts; reco rd s o f p ro ceed in g s b ef o re o r f ilin g s m ad e w ith th e U .S. im m ig ratio n co u rts an d an y ad m in istrativ e o r f ed eral d istrict co u rt o r co u rt

o f ap p eal; co rresp o n d en ce, an d m em o ran d a.” Id

. at 3 4 2 3 6

.

2 Ex ped i t ed rem ov al pro ceed in g s p ro v id e a stream lin ed p ro cess b y

w h ich alien s w

h o attem p t to g ain en try to th e Un ited States b u t are n o t

a d m issib le can b e rem o v ed by an im m i g ratio n o f

f icer w ith o u

t f u rth er h earin g or rev iew

. T h is p ro cess d o es n o t ap p ly to t h o se seek in g asy lu m

o r ex p ressin g a f

ear o f p ersecu tio n

. S

ee 8 U.S.C. § 1 2 2 5 (b )(1 )(A )(i).U N I T E D S T A T E S V

. L O P E Z 5

Ordered Removed,” warns that if the removed alien attempts to enter, en t e r s , or is found in the United States he can be prosecuted for a felony under 8 U.S.C. § 1326 and could face

severe penalties. The officer who serves this warning enters h i s sig nature on that portion o f the form. I n L opez ’s ca s e, A ge nt Harris served the warning

. Ag ent Harris’s name is ty ped on the sig nature line n ex t to his sig nature along with his title, B order Patrol Ag ent, and h is office l o c ation, Tucson, Ariz ona.

The b ottom half o f the f orm, the “Verification o f Removal,” is the p o rtion desig ned to record the phy sical removal of the alien across the border. The verification o f removal includes the following information about the alien’s departure: departure d a t e, port of d eparture, manner o f departure, and sig nature and title of the verify ing officer. I

n addition, it b e ars a photog raph o f t h e a l ien removed, his sig nature, his r ig ht index fing e rprint, a nd the sig nature of the official taking that f

ing erprint. Here, all portions of the form

were completed. Thus, L opez ’s n ame, photog r aph, sig nature, and f ing erprint appear on h is V erifi ca t i o n of Removal. The departure date is listed as F ebr uary 11, 2010, the manner o f departure is described as “afoot,” and the port of departure is identified as Nog ales, Ariz ona. The form bears sig natures from two officers: a border patrol ag ent who v e r i f i ed the removal and the official who took L opez ’s f i n ge r print. Neither o f these sig natures is leg ible, however, and none o f the g overnment’s witnesses cou l d identify the officers w ho sig ned the form.

Ag ent Harri s was the g overnment’s key witness to L opez ’s p hy sical removal, a n element of the offense the
g overnment is required to prove bey ond a reasonable doubt. Removal w as the only ele m e n t seriously contested at trial.U N I T E D S T A T E S V

. L O P E Z 6

Ag ent Harris testified that the alien’s fing erprint is placed on the verification of removal in Nog ales a s the a lien “step[ s] off the bus [ from Tuscon] and rig ht before [ he is] removed back

. . . to Mex ico.” A fter the alien is fing erprinted, he is walked
t o the b order. On cross, defense counsel questioned Age n t H arris a bout his inability to decipher the sig natures on L opez ’s Verification of Re moval or otherwise identify the
ag ents who sig ned it. On r edirect, the prosecutor asked Ag ent Harris, “ based upon y our training and ex perience by looking
at [L o pez ’s Verification of Removal,] do y ou b elieve he was actually deported from the United States? ” Ag ent Harris
resp o n d e d, “Yes. I believe he was.” I t is undisputed that Ag ent Harris was not at the N og a les border when L opez was removed; nor was Harris qualified as an ex pert under F ederal Rule of Evidence 702.

Althoug h L opez u nsuccessfully challeng ed the validity o f his removal order in a pre-trial motion t o d ismiss the information, the g overnment did n ot int roduce the order o f removal ( F orm I -860) a t trial. A t t h e c l o se of the
g overnment’s case, L opez moved for a directed verdict under F ederal Rule of Criminal Procedure 29 in p a rt because the
g overnment failed to introduce a removal order. The district
court denied the motion, ruling that an order of d eportation o r removal is not a n ecessary e lement of a Section 1326 offense

so long as evidence of phy sical r emoval has been introduced.

L opez r a i s e s several issues: whether 8 U.S.C. § 1326 requires proof of an order of removal or deportation as an element of the offense when the defendant has b een deported

or removed; whether the Verification of Removal and Ag ent Harris’s opinion testimony t h a t L opez w as in fact deported

were properly admitted; and, if n ot, whether those e r r orsU N I T E D S T A T E S V

. L O P E Z 7

require u s t o reverse L opez ’s conviction and v acate his
sentence.

I I

.

The distri c t c o urt ruled that 8 U .S.C. § 1326 does not require the g overnm e n t t o prove that an order of removal o r deportation was issued where the alien has been d e ported or removed. W e ag ree. W e revi e w de n ovo a district court’s interpretation of a s t atute, and we beg in with the tex t o f the
statute. See United States v. Havelock

, 664 F .3d 1284, 1289 (9th Cir. 2 012) (en banc). The statute p r ovides that an alien who enters, attempts to enter, or i s at any time found in the United States shall be g uilty of a crime if he previously “has been d enied a dmission, ex cl u ded, d eported, o r removed o r has departed the United States w hile an order of ex c l usion, deportation, o r removal is outstanding .” 8 U .S.C. § 1326(a)(1). L opez arg ues that the last cla u s e , “ while an order of ex clusion, deportation, or removal is o u tstanding

, ” applies to the entire subsection. As the d i s t rict court concluded, however, the statutory lang ua ge r e quires as an element of the offense an outstanding ord e r o f ex clusion, deportation, or removal only when an alien has “ departed” the U n i t ed States. I f the alien “has b een denied admissio n , ex c luded, deported, or r e moved,” then no order is required. The p hrase is w orded i n t h e passive voice because the alien is the s u b j ect of the enforcement action. The second clause
presupposes that the alien departed on his own initi a t ive, in which case, the fact of his return alone cannot s u p p ort a conviction u nder Section 1326 because r eturning alone is not the criminal act punished by Section 1326(a)(1). I ndeed, “As

a g eneral r

ule, it is not a c r ime for a removable alien to remain present in the Uni ted States.” Arizona v. United States
, 132 S. Ct. 2492, 2505 (2012). Rather, the criminal actU N I T E D S T A T E S V

. L O P E Z 8

i s returning to the United States after the g overnment h a s ordered the alien ex cluded, deported, or r emoved. Hence, the order of deporta t ion, r emoval, or ex clusion becomes a necessary element that the g overnment must prove bey o nd a reasonable d oubt if the alien returns after he “has d eparted”

on his own. Adducing suf f i cient proof that the order was issued is the only way to d e monstrate that the g overnment has, in fact, or d ered the alien removed and that his return without permission violates the statute.

The Ninth Circuit’s Model Criminal J ury I nstruction 9.8 supports this interpretation. The model instruction, properly
g iven to the jury here, identifies f ive elements. As to the first element, the g overnment must prove:

F i r st [ [the defendant was [ removed] [ deported] from the United States] ] [ [ the defendant departed the United States while an

o r d e r o f [ r e m o v a l ] [ d ep o r t a t i o n ] wa s outstanding ] ] ;

9th Cir. Model Crim. J ury I nstr. 9

. 8 ( 2010) (all brackets in orig inal). The separate double brackets indicate that the court should g ive the jury e i t h e r o ne of the instructions, but not both. So if the defendant was deported or removed, the court

moves on to the second element of the offense. I f he instead “depart e d ,” the g overnment d o es not meet its burden with respect to element one unless it also p roves that the defendant departed “while an order of removal or d eportation was outstanding .” S

e e U nited States v. Gonzalez-Villalobos

, 724 F .3d 1125, 1129 (9th Ci r

. 2 013) (“I n a prosecution for illeg al reentry under 8 U. S

. C. § 1326(a), the Government
must prove, inter a lia

, that the defendant was previously ‘denied admission, ex cluded, d eported, or removed or hasU N I T E D S T A T E S V

. L O P E Z 9

departe d t h e United States w hile an order of ex clusion, deportation, or r emoval [wa] s ou t s t a nding .’ 8 U .S.C. § 1326(a)(1); see a lso 9th Cir. M o d el Crim. J ury I n str. 9.8 (2010).”).

The cases L opez cites for the proposition that an order o f removal or deportat ion is an element of the crime that must be proven to the jury

under all circumstances are inapposite. True, we h ave said that “[ o] ne o f the elements of a conviction under § 1326 is a prior remov a l order.” U nited States v

. Vidal-Mendoza

, 705 F .3d 1012, 1014 (9th Cir. 2013). B ut Vidal-Mendoza —as well a s United S tates v. BarajasAlvarado

, 655 F .3d 10 7 7
, 1079 (9th Cir. 2011), and other

cases cited by L opez —involve coll ateral challeng es to the validity o f an order of deportation under 8 U .S.C. § 1326(d),
not w hether a deportation or removal order m u s t be introduced at trial. These cases stand for the uncontroversial proposition that the validity of a r emoval or deportation order is alway s a predicate to the crime beca u s e t h e deportation

mu s t be valid, leg al, and comport with due process requirements to sustain a conviction under Se c t i on 1326. This does not necessarily mean that where the g overnment proves that the alien was actually p h y sically removed, the
g overnment must also prove the ex istence of a deportation o r removal order.

I ndeed, if actual phy sical removal or deportati o n is
pr oven, a valid order of removal or deportation may be presumed in the absence of a collateral pre-trial challeng e in the form of a motion to dismiss the indictment, or, a s h ere, the information. F e d

. R. Crim. P. 12(b)(3)(B ) (requiring “a motion alleg ing a defect in the indictment or information” to be made before trial); see, e.g. , United States v. LopezVelasquez

, 6 29 F

. 3d 894, 8 96 ( 9th Cir. 2010) ( e n banc)U N I T E D S T A T E S V

. L O P E Z 10

(reviewing a district court’s g rant of a motion to dismiss an i ndictment under Section 1326 based on the invalidation o f the deportation order u n derly ing the indictm e n t ). I mplicitly
recog niz ing this rule, L o pez f iled a pre-trial motion to dismiss the information due to unla wful deportation, which challeng ed the validity of h is underly ing removal o rder. The district court denied this motion, finding that althoug h L opez did not sig n the removal o rder as required by 8 C.F .R. § 235.3(b)(2)(I ), he suffered no p rejudice. L opez d id not appeal the denial of his motion to dismiss.

L opez asserts that our decision in U n i t ed States v

. Bahena-Cardenas

, 411 F .3d 1067 (9th Cir. 2005), requires the g over nment to prove that an order of removal o r deportation was o utstanding as an element of every § 1326(b) offense. L opez points us to our description in that case o f what the g o vernment must show to prove “phy sical removal”: “The G overnment must prove bey o nd a reasonable doubt that B ahena-Card e nas phy sically left the country sometime between the time h e was ordered removed and the t i m e h e

was f o und in the United States.” Id. at 1074. I n BahenaCardenas

, the issue was w hether the g overnment could meet its burden of p roving actual phy sical removal by introducing

a warrant of deportation sig n ed by the ag ent who witnessed th e d e f endant’s departure from the United States. W e concluded that the wa rr ant of deportation is n ontestimonial and the r efore does not implicate Crawford v. W a shington

, 541 U.S. 36 (2004). 411 F .3d at 1074–75. B ecause a warrant of deportati o n is admissible to prove phy sical removal in a deportation case, we u pheld t h e c onviction. BahenaCardenas is squarely in line with our holding a s t o p r oof o f removal or deportation o rders, and does nothing to disturb the leg al r equirement that actual p hy sical removal from the United States must be proven.U N I T E D S T A T E S V

. L O P E Z 11

I I I

.

I t is w ell-established that the g overnment is required to prove phy sical removal from the United States as an element of the c rime under 8 U.S.C. § 1326. S ee Bahena-Cardenas

, 411 F .3d at 1074. W e must decide whether the g overnment presented sufficient evidence of L opez ’s phy sical removal b y submitting the Verification of Removal along with Officer Oki’s testimony a s the temporary custodian of L opez ’s A-F ile and e liciting opinion testimony from A g ent Harris. T o determi n e t he admissibility o f the Verification of Removal,

we review de novo the d istrict court’s interpretation of the F ederal Rules of Evidence, b ut o n c e we determine that the evidence does fal l within the g iven r ule, w e review the district court’s decision to admit it f o r a b use of discretion. United States v. Durham

, 464 F

. 3d 9 76, 981 (9th Cir. 2006). B ecause L opez f

ailed to o bject to A gent Harris’s opinion testimony at trial, w e review its admission for plai n error. Puckett v. United States , 556 U.S. 129, 135 (2009). 3

A.

The district court did n o t e r r by admitting L o pez ’s Verification of Removal. A verification of removal comports

w i th the requirements of the Confrontation Clause and is admissible u nder the p ublic records ex ception to the rule
ag ainst hearsay

.

3 P lain erro r rev iew in v olv es f o u r step s: th ere m

u st b e an erro r o r d ef

ect; th e erro r m

u s t b e clear o r o b v io u s ; th e erro r m u st h av e af

f ected th e ap p ellan t’ s s u

b s tan tial rig h ts; an d w e m a y ex ercise o u r d iscretio n to

rem ed y t h e erro r in cases w

h ere it “ serio u sly af

f ects th e f airn ess, in teg rity

o r pu b lic rep u t atio n o f j u d icial p ro ceed in g s.” Pu ckett

, 5 5 6 U.S. at 1 3 5 (in t ern al q u o tatio n

m ark s an d alteratio n

o m i tted ).U N I T E D S T A T E S V

. L O P E Z 12

W e h a ve previously held that “a w arrant of removal i s nontestimonial.” 4 B ahena-Cardenas

, 411 F .3d at 1075; United States v. Orozco-Acosta
, 6 07 F .3d 1156, 1163 (9th Cir. 2010) (reaffirmin g B ahena-Cardenas after MelendezDiaz v. Massachusetts , 557 U.S. 305 (2009)).

W e have not y e t addressed a Confrontation Clause challeng e to the admissibility of a verification of removal as opposed to a w arrant o f removal. However, reas o n i n g b y analog y to Bahena-Cardenas and Orozco-Acosta
, w e conclude that like a warrant of removal, a veri fication o f removal is nontestimonial. B o th d ocuments r e c ord the alien’s phy sical r em o v a l across the border and are made for the
purpose o f recording the movement o f aliens. Compare Orozco-Acosta
, 607 F .3d at 1162–63 (describing a warrant o f removal), with F orm I -296. The only funct ional difference b e t w een the two is that a verification of removal is u sed t o record the removal of aliens pursuant to e x pedited removal procedures, while the warrant of removal records the removal of aliens following a hearing before a n immig ration judg e

. See 8 C.F .R. § 241.2 (2005) (noting that a F orm I -205, W a r rant of Removal, is “ based u pon the final administrative removal order in the alien’s c a se”); 8 U.S.C. § 1229a ( e x plaining that removal proceeding s shall in g eneral b e conducted by an immig ration judg e, a nd th at such proceeding s “shall be the sole a nd e x clusive procedure for determining whether an alien may be admitted to the United States or, if the alien h as been so admitted, removed f rom the United States[ ,] ” ex cept where otherwise specifi ed i n the chapter).

4 Fo rm I- 2 0 5 is en titled “ W arran t o f Rem o v al/Dep o rtatio n .” I t i s ref erred to in terch an g eab ly i n ou r p rev io u s cases an d in f ed eral reg u latio n s

as a w arran t o f

rem o v al o r a w arran t o f

d ep o rtatio n

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

. L O P E Z 13

I n Bahena-Cardena s , we concluded that a warrant o f removal/deportation is nontestimonial because it is “ n ot made in anticipation of litig ation, and because it is simply a r outine, objective catalog ing o f a n u n ambig uous f actual matter.” 411 F.3d at 1075. I n Orozco-Acosta
, we reaffirmed our holding in Bahena-Cardenas

, once ag ain reas oning that
warrants of removal/deportation are nontestimonial b e cause they are “ not made in anticipation of litig ation,” they a re “simply a routine, objective, catalog uing of an unambig uous factual matter,” and they “ h ave inherent r eliability because o f the Government’s need to keep accurate records of the
movement of aliens.” Orozco-Acosta
, 607 F

. 3 d a t 1 163 (internal quotation marks omitted).

These same consider a t i o n s lead us to conclude that a

ve ri f i cation of removal is nontestimonial in nature a s well. F irst, there is no evidence that a verification of removal is completed in anticipation of litig ation. Second, a verification of removal is “simply

a routine, objective, catalog uing of an unambig uous factual matter.” Id. A verification of removal records the fact that an individual alien was removed from the United States. The alien’s name, photog r aph, fing erprint, a nd sig nature all appear on the form, as do the departure date, the port of departure, and the manner of departure. I t is sig ned b y

a “verif y i n g o fficer” and requires that officer to indicate his title as well. That it is the r emoved alien’s fing erprint on the form is evidenced by the sig nature of the officer who took the fi n ge rprint. Thus, a verification of r emoval catalog ues the unambig uous factual matter—whether an alien has been removed—just as a w arrant of removal/deportation does. Verifications of removal are also routi n e

. They a re completed for all aliens remov e d pursuant to ex p edited removal procedures. Third, a verification of removal has the

same “inherent reliability because of the Government’s needU N I T E D S T A T E S V

. L O P E Z 14

to keep accurate records o f the movement o f a l iens” as a warrant of removal/deportation. I t is e qually important for the g overnment to r e cord which aliens have been removed under ex pedited removal proc e d u r es as it is to record which ali en s h a ve been removed in other circumstances. B oth d o c u m ents are placed in the alien’s A-F ile. There is no day lig ht between the f

unct i o n of these two documents that would sug g est one should be d eemed nontest i m onial while the other is deemed testimonial.

Althoug h L opez r e c og n iz es that the Confrontation Clause analy sis a pplies equal l y t o a warrant of r emoval/deportation and a verification of removal, he contends that a verification of removal is, nevertheless, inad m i s s ible hearsay

. Under Fe d eral Rule of E vidence 8 03(8), a r ecord or statement o f a public office is admissible a s an ex ception to the hearsay rule if it s et s out “a matter observed while under a leg al duty to report, but not including

, in a criminal c ase, a matter observed by law-enforcement personnel.” F ed. R. Evid. 803(8)(A)(ii). W e review de novo whether a verificatio n o f removal f alls into the p ublic records ex ception to the hearsay rule. United States v. Marguet-Pillado

, 560 F .3d 1078, 1081 ( 9 t h C ir. 2009).

Ag ain, r easoning by analog y to our precedent permitting admission of warrants of removal/deportation, we reject L opez ’s assertion that the g eneral prohibition a ga inst ad m i t ting records created by law enforcement personnel codified in F ederal Rule o f Evidence 803(8)(A)(ii) applies to verifications of r e m o v al. I n United States v. LoyolaDom i n g u e

z , 125 F .3d 1315, 1317–18 (9th Cir. 1997), we reaffirmed that warrants o f deportation are admissible in Section 1326 prosecutions e ven thoug h they describe a matter observe d b y border patrol ag ents. See United States v

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

. L O P E Z 15

Hernandez-Rojas

, 617 F .2d 533, 534–35 (9th Cir. 198 0 ) (holding the s ame). B e c ause warrants of deportation reflect

“ m i n i sterial, objective observation[ s] and do not implicate t h e

concerns animating the law enforcement ex ception to the public r ecords ex ception

, ” t hey are not precluded by that

e x ception. Loyola-Dominguez

, 1 2 5 F .3d at 1318 (internal quotation marks omitted). W e have noted that the purpose o f the law enforcement ex cepti o n is to “ex clude observations made by o fficials a t the scene of the c rime or a pprehension, because observations made in an adversarial setting a re less reliable than observations m a d e by public officials in other situations.” U

nited States v. H

ernandez-Rojas

, 617 F .2d 533, 535 ( 9 th Cir. 1980). Ex cluding a verification of removal would not f

urther this purpose because the observation made b y a law enforcement o fficer in verify ing the removal o f a n alien is not made at the scene o f a crime or apprehension nor made in an adversarial setting

. Rather, l ike a warrant o f deportation, a verification of removal records the movement of aliens across the United States bor der. The form thus shares the same “inher ent reliability because of the Government’s need to keep accurate records of the movement of aliens,” id.

, that we found important to our conclusion that warrants of deportation are not inadmissible hearsay

.

L opez misplaces his reliance on slig ht diffe r e n ces in the
two ty pes of forms, arg uing that the o bservations recorded on

a verification of removal a r e more subjective. W hile it is true th at subjective observations of law enforcement officers a re

ex c luded as inadmissible hearsay

, the slig ht differences in the
two f orms cannot obscure the p lain fact that neit h e r fo r m lea v es room for subjectivity

. B o th forms require law enf o rcement ag ents to verify the removal of aliens from the United States and attest to that veri f i cation. The questionU N I T E D S T A T E S V

. L O P E Z 16

answered by the officer sig ning either form is the same objective one: whether or not the alien was removed.

L opez also arg u es that the differences b etween the two forms are relevant to the f i rst prong of the public records

ex c e ption: whether the ma tter was “observed while under a leg al d uty to re p o rt.” F ed. R. Evid. 803(8). H e arg u es that because a w arrant of deportation includes a sig n ature line for the officer who “witnessed” the removal, while a verification of removal does not, any removal recorded on the latter form

ca n not be said to have been “observed” and is therefore inadmissible. L o pez ’s arg ument falters, however, when o ne considers that warrants of deportation, which a re admissible,
p r o vide an o ption for an officer to indicate that he eith e r “witnessed” the removal or that he “verified the removal.” I f verify ing the r emoval constitutes an “observation” sufficient
to satisfy the requirements of Rule 803(8), the same principle applies to verifications of removal, re n d ering them also admissible under Rule 803(8).

The ver i f ication of removal also meets the r equirement that “the document was a record of matters observed pursuant to a duty imposed by law.” United States v. Pintado-Isiordia

, 448 F .3d 1155, 1157 (9th Cir. 2006) (internal quotation marks omitted). W e have n ot interpreted the “ duty imposed by law” requirement to mean that a statu t e or r eg ulation ex pressly imposes duties to observe, report, and keep records. Rather, it suffices if the nature of the responsibilities assig ned to the public ag ency are such that the record is appropriate to the function of the ag ency

. 4 Christopher B

. Mueller & L aird C. Kirkpatrick, Fede r a l E vidence § 8.88 (3d ed. 2 012) (collecting c ases). Recording and maintai n i ng verifications that an individual has been deported falls under the r u bric o f
respons i b i l ities assig ned to the Department of HomelandU N I T E D S T A T E S V

. L O P E Z 17

Security ; therefore, c ompleting the v e r ification of removal form is appropriate to the function of the ag ency

.

H aving determined that a v e r ification of removal f a l l s within the p ublic records ex c eption to the hearsay rule, we

ex a mine whether it was an abuse of discretion for the district
court to admit it h e r e. I t was not. At trial, the prosecution properly authenticated the Verification of Removal by c alling deportation officer Ron O ki, the temporary custodian o f L opez ’s A- File, as a witness. I n United States v. EstradaEliverio

, 583 F .3d 669 (9th Cir. 2009), w e squarely h e ld that documents f

r om an A -F ile may be au t h e n ticated under F ederal Rule o f Evidence 901, 5 which requires “the pr o ponent [ to] produce evidence sufficient to support a finding that the item is what the proponent claims it is.” F ed. R. Evid. 901(a). Specifically

, under Rule 901(b)(7), p u b l ic r ecords may be authenticated based on evidence t h at “a) a document was

r e c o r ded or filed in a public o f fice a s authoriz ed b y law; or b) a purported public record or statement is from the office where items of this kind are kept.” F ed. R. Evid. 9 01(b)(7). I n Estrada-Eliverio

, we held that the d i s t r i ct court did not abuse its discretion in admitting s e v e r al A-F ile documents,

5 In Estra d

a -Eliverio w e co n sid ered t h e in terp lay b etw een Fed eral Ru le

o f Civ il P ro ced u re 4 4 an d Fed eral Ru le o f Ev id en ce 9 0 1

. Un d er Ru le 4 4
, m ad e ap p licab le in a crim in al case by Fed eral Ru le o f Crim in al P ro ced u re 2 7
, “ an o f

f icial reco rd is ad m issib le if it is an of f icial p u b lic a t i o n o f th e

reco rd o r a co py o f th e reco rd attested b y th e o f f icer w ith leg al cu sto d y of th e r e c o rd an d acco m

p an ied b y a certif

i cate, m ad e u n d er seal, th at th e

o ffi c e r h as cu sto d y

. In ad d itio n , th e Ru le allo w s a party to p ro v e th a t a d o cu m en t is an o f

f icial reco rd by an y o t

h er m eth o d au th o r i z e d b y law .” Estra d a-Eliverio

, 5 8 3 F.3 d at 6 7 2 (in tern al q u o tatio n m ark s an d citatio n s

o m itted ). We h eld

, “ [a]lth o u g h th e g o v ern m en t co u ld h av e relied o n Ru le 4 4 to au th en ticate th e A

- f ile d o cu m en ts, it w as n o t so restricted . . . FRE 9 0 1 pro v id ed an altern ativ e basis f o r estab lish i n g th e d o cu m en ts’

au th en ticity .” Id

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

. L O P E Z 18

including the d efendant’s warrant of removal or deportation, under Rule 901(b)(7). There, a B order Patrol Ag ent testified “that such documents are kept in A-files, that the documents offered were copies o f d ocuments from [ defendant’s] A-file, that [ the Ag ent] was the custodian of that A-file, and that the documents ad m i tted w ere true and correct copies of the documents in the A-file, w h i c h [ the Ag ent] had personally seen.” 583 F .3d a t 671. I n L opez ’s case, Officer Oki testified
to the same—that he was the temporary custodian of L o pez ’s A-F ile, that a verification of re m o v a l i s a document that is included customarily in A-F iles, and that the Verification o f Removal introduced a s Ex h ibit 12 was a true and correct copy of a d ocument from L o pez ’s A -F ile. Moreover, a s w e

ex p lained in Estrada-Eliverio

, “ F RE 901 does n ot require personal knowledg e of a document’s creation, but rather only personal k

nowledg e that a document w as par t of a n official file.” 583 F .3d at 673. Officer Oki’s testimony indicates that he had the requisite p ersonal knowledg e, a n d therefore his “testimony was sufficient to make a pri m a facie case for authenticity .” Id.

B

. Althoug h it w a s n o t an abuse of discretion to admit the Verification of Removal, doubts apparently l i n gered as to whether it was sufficient evidence to convince a jury bey ond

a reasonable doubt that L opez had been phy sically removed. On d irect, Officer Oki testified that he was unable to determine who sig ned the Verification of Removal o r identify either the verify

ing officer o r o fficial who to o k t he fing erprint. Nor was O fficer Oki in Nog ales when L opez was removed or in possession of any o ther personal knowledg e o f L opez ’s removal. Similarly

, during c r o s s

- e xa m i n a t i o n , Ag ent Harris could testify

only to g eneral procedures a nd admittedU N I T E D S T A T E S V

. L O P E Z 19

he did n ot witness L o p e z ’ s removal (he w as forty to fifty miles away a t t h e t i m e) and did not know who sig ned the Verification of Removal as the verify ing officer o r a s t h e ag ent who took the fing erprint. I ndeed, he had “no idea” w ho either person was.

Apparently realiz i n g t h e p ossible g ap in proof and the doubts that may have been g enerated by the ag e nts’ l a ck o f personal knowledg e as to L opez ’s removal, on r edi rect, the prosecutor a sked Ag ent Harris, “[ B ] ased upon y ou r training and ex perience by looking at [ L opez ’ s Verification o f Removal,] do y ou believe h e was actually deported from the U nited States? ” Ag ent Harris responded, “Yes. I believe he was.”

L opez arg ues that this testimony was inadmissible under F ederal Rule of Evidence 602 beca u se Ag ent Harris lacked personal knowledg e. He also arg ues i t was inadmissible under F ederal Rule o f Evidence 701 because it could not have been “rationally based on Ag ent Harris’ s perception,” nor

was it established that Ag e nt H arris had any t raining o r

ex p erience removing persons at the b o r d e r o r with the form itself.

T h e d istrict court clearly erred by admitting Ag en t Harris’s lay opinion on the ultimate q uestion before the jury

. Ag ent Harris’s testimony d oes not satisfy the per s o nal kn o wledg e requirement of F ederal Rule of Evidence 602. Under Rule 602, a “witness ma y t e s t ify to a matter only if evidence is introduced sufficient to support a finding that the witness h as persona l k n o wledg e of the matter.” Personal knowledg e means knowledg e prod u c e d by the direct involvement of the senses

. S e e 3 Mueller & Kirkpatrick, Federal Evidence § 6.6 (3d e d

. 2 0 12) (collecting cases).U N I T E D S T A T E S V

. L O P E Z 20

Ag ent Harris was not in Nog ales when L opez was deported, and he did not witness the deportation. I n fact, Ag ent Harris l a s t saw L o pez before L opez ’s alleg ed d eparture o n the b u s from Tucson to Nog ales. Nor c ould Ag ent Harris identify

e ither of the sig natures on the Verification o f Removal, a n d he c ertainly had not witnessed those sig natures. I ndeed, A ge nt H arris admitted that he could not even remembe r L opez , t e s t i fy ing that L opez was “a pretty common name.” He could not h a v e t e stified as to his personal knowledg e a s required by Rule 602.

Ag ent Harris’s lay opinion testimony is also inadmissible under F ederal Rule of Evidence 701. A lay person may offer testimony in t h e f

orm o f an opinion if it is “ (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimo n y or to determining a fact in i s s u e ; and (c) n ot based on scientific, technical, o r other specializ ed knowledg e within the s c ope of Rule 7 02.” Rule 701(a) contains a p ersonal knowledg e requirement. The advisory committee notes to Rule 701 c l a r i f y that 701(a) is “the familiar requirement of firs t-hand knowledg e o r observation,” F ed. R. Evid. 701 advisory c o m mittee notes (19 7 2), and we have held that the personal knowledg e requirement under Rule 602 is the same as t h a t u n d e r Rule 701(a), see U

nited States v. Simas
, 937 F .2d 459, 464–65 (9th Cir. 1991).

I n p resenting lay opin i ons, the p ersonal knowledg e requirement may be met if the witness can demonstrate firsthand knowledg e or observation. As described above, Ag ent Harris neither witnessed L opez ’ s deportation nor c o u l d he identify the people w ho sig ned the form. Althoug h the prosecution could have e l i c ited Ag ent Harris’s lay opinion testimony had it laid a proper foundation fo r Harris’sU N I T E D S T A T E S V

. L O P E Z 21

familiarity and ex pe r ience, if any , with verifications o f

remova l or the removal of a liens at the border, the
prosecu tion failed to d o so. See United States v. Martinez
, 657 F .3d 811, 818–19 ( 9th Cir. 2011) (upholding admission of lay testimony on the meaning of coded communications b y

a former member of the Mex ican Mafia after establishing the member’ s “ long ex perience in writing notes for the
org aniz ation”); see also United States v. Durham

, 4 64 F .3d 976, 982 (9th Cir. 2006) (“[ C] o u rts have permitted lay witnesses to testify that a substance appeared to be a narcotic

so long as a f

oundation of f

a m i l i arity w ith the substance is established.”) ( quoting F ed. R. Evid. 701 advisory committee
notes (2000)). But s e e U n ited States v. Figueroa-Lopez
, 125 F .3d 1241, 1246 (9th Cir. 1 997) (holding that testimony by law enforcement a ge n t s that defendant’s conduct was consistent w ith that of a d rug trafficker violated F ederal Rule of Evidence 701 because permitting such testimony subverts the requirements of F ederal Rule of Crim inal Procedure 16(a)(1)(E)); United S

tates v. Peoples

, 250 F .3d 6 30, 641 (8th Cir. 2001) (holding inadmissible lay opinion testimony by an F B I ag e nt about r ecorded conversations because “when a law enforcement officer is n ot qualified a s an ex pert by the court, her testimony is a dmissible a s lay opinion only when the law enforcement officer i s a participant in the conversation, has personal knowledg e of the f a cts being related in the conversation

, or observed the c o nversations as they occurred,” none of which occurred in this case).

The prosecution laid no foundation for Ag ent Harris’s opinion that the V e rification of Removal meant L opez h ad actually been phy sically r emoved. The prosecut or never elicited the supposed “ training and ex perience” he asked Ag ent Harris to r ely u

pon for his opinion testimony

. Nor did he ask whether Ag ent Harris ever used the form, worked at aU N I T E D S T A T E S V

. L O P E Z 22

port of entry , removed any one, or received training on the use of the f orm. W h at was established is that Harris had been a border patrol ag ent for four and a half y ears and at the time o f trial was assig ned to the Naco B order Patrol Station, but h ad b een temporarily detailed to Three Points, west of Tu c s o n

. Harris fur t h e r testified that in F ebruary 2010, he was temporarily detailed to the Tucson station, forty to fifty miles from Nog ales, for a period of six months. The Tucson station is a processing center where individuals are broug ht after they

are arre s ted to be fing erprinted, photog raphed, a nd interviewed. Tucson is not a place from whic h M e x ican citiz ens are actually removed or deported.

B a sed o n t he e v idence admitted at trial, no possible scenario ex ists und er which Ag ent Harris’s lay opinion testimony was “predicated u pon c oncrete fa c t s within [ his]

own observation and r ecollection— t h at is facts p erceived from [ his] own senses, as disting uished from [ his] o pinions o r conclusions drawn from such facts.” Du r h a m , 464 F .3d at 982 (internal quotation marks omitted).

C.

W e must nex t determine w hether the e rror a ffected L opez ’s substantial rig hts, “which in the ordinary c ase means he must demonstrate th a t it affected the outcome of the district court proceeding s.” Puckett

, 556 U.S. at 135 (internal quotation marks o mitted); see also U nited States v. A n g

u i anoMorfin

, 713 F .3d 1208, 1 210 ( 9 th Cir. 2013), cert. denied

, 1 3 4 S. Ct. 543 (2013). L opez has not met this b u r d e n because the jury could have concluded that L opez was actually phy sically re m o v ed based on the Verification o f Removal and O fficer Oki’s testimony which authenticated it.U N I T E D S T A T E S V

. L O P E Z 23

L opez arg u es that the V erification of Removal alone was leg ally insufficient to suppor t the jury ’s finding that he h ad been p hy sically rem o ved. W e clarified our two-step approach to evaluating sufficiency of the evidence claims in United States v. Nevils

, 598 F .3d 1158 (9th Cir. 2010 ) (en banc). F irst, we a

re required to “construe the evidence at trial in the lig ht mos t favorable to the p rosecution.” Id. at 1161 (interna l q u o tation marks omitted). O nly then may we determine whether “ any rational trier of fact could have f ound the e ssential elements of the crime bey ond a reasona b le doubt.” Id. (quoting Jackson v. Virginia

, 443 U.S. 307, 319 (1979)). Evidence will therefore be “insu f f icient to support

a verdict w here mere s p ec ulation, rather than reasonable inference, supports the g overnment’s case.” Id. at 1167.

W e have r epeatedly held that a w a rrant o f r emoval is “sufficient alone to support a finding of removal b ey ond a reasonable doubt.” U

nited States v. Zepeda-Martinez

, 470 F

. 3d 909, 913 (9th Cir. 2006); see Uni t e d States v

. Salazar-Lopez

, 506 F .3d 748, 755 ( 9th Cir. 2007) (“W e noted in Zepeda-Martinez that this warrant is sufficient alone to support a finding of removal bey ond a rea s o nable doubt.”) (internal q

uotation marks a

n d alter a t i on omitted); BahenaCardenas

, 4 11 F .3d at 1075 (“W e hold that the w arrant o f deportation in this case is nontestimonial and thus admissible. According ly

, the g overnment provided sufficient evidence o f phy sical removal.”).

Similarly

, a p r o p e r l y a

u t h e n t icated verification of removal is leg ally sufficient to s u p p ort a finding of phy sical removal bey ond a reasonable d oubt. A s with warrants of r emoval, the Verification of Removal “bore [ d efendant’s] name, immig ration identification number, photog raph, sig na t ure, and fing erprint.” Salazar-Lopez

, 506 F .3d at 755. At no timeU N I T E D S T A T E S V

. L O P E Z 24

during trial did L opez arg ue that the p hotog raph, sig nature, and fing erprint on the Verification of Removal did not b elong
to him. 6 During trial, the g overnment cal l e d a fing erprint

ex p e r t w ho testified that the f ing erprint o n L o pez ’s Verification of Removal belong ed to L opez , and L opez never contested that fact. N o r d id L opez contend that the photog raph on the Verifica t i o n o f Removal was not o f him; and the jury could simply compare the phot o gr a ph to the defendant to determine whether it w as his. Similarly

, L opez did n ot challeng e the authenticity of his sig nat u r e o n the form.

I n c losing L opez arg u e d

, “This entire case is built on a piece of paper

. . . . This is Ex hibit 12. Yo u w i l l h ave this

ex h ibit b ack with y ou in the jury room.” L opez also made the
most he could of the g overnment’s inability to identify

, much less c all, the border ag ents who too k his fing erprint a nd verified his removal, urg ing the jury to conclude th a t t h e re

w as n o t proof bey o nd a reasonable doubt that L o p e z w a s actually phy sically

removed. 7

6 L o p ez’ s co u n sel d id arg u e th at th e g o v ern m en t f ailed to p ro v e th at th e A

- File w as lin k ed to L o p ez in co n j u n ctio n w ith h is Ru le 2 9 m o tio n

. T h e d istrict co u

rt p ro perly rej ected th is arg u m en t b ased o n th e p arties’ p retrial stip u latio n s an d o th er d o cu m en ts i n tro du ced d u rin g trial f ro m th e A

- File,

w h ich estab lish ed th at th e A

- F ile b elo n g ed to L op ez.

7 T h at th e p ro s ecu to r th o u g h t it w as n ecessary to elicit A g en t Harris’ s im p ro p er lay o p in io n testim o n y illu s trates th e w eak n ess in th e g o v ern m en t’ s case. T h e i lleg ib le sig n atu res o n th e Verif icatio n of Rem o v al f

o rm , i n ab ility to id en tif

y t h e ag en ts w

h o si g ned it, an d th e f ailu re to so licit testim o n

y f ro m th o s e ag en ts co u ld

, in an o th er case, lead th e j u ry t o co n clu de th at th e g o v ern m en t h ad n o t m et its b u rd en

. A lth o u g h Of f icer Ok i testif

ied th at v erif

icatio n s o f rem o v al are co m p leted w h en an alien is p h y sically rem o v ed

, h e d id no t t estif y ab o u t th e sp ecif

ic
p ro ced u res f

ollo w ed at th e bo rd er. In d eed

, ev en in cases h o ld in g w arran tsU N I T E D S T A T E S V

. L O P E Z 25

I n addition to authenticating the V erification of Removal, Officer Oki’s testimony

provided the jury with a framework in which to view the form. H e testified that he has reviewed “[ t] housands” of A-F iles in h i s c areer, which beg an in J u ne 199 6 a s a special ag ent with I NS. He testified that a verification o f removal is completed when a p e r s o n is phy sically r emoved f

rom the United S t at e s , a nd it is principally used by U.S. Customs and B order Patrol ag ents because it is a document that is used at the borders. F inally

, he stated that he has seen “hundreds” of these documents, all of which h ad the “ex a c t f

ormat” as the o n e introduced in this

case.

W e therefore conclude that a “rational trier of fact could have found the essenti a l elements of the crime bey o nd a reasonable doubt.” Nevils

, 5 9 8 F

. 3d at 1 164 (quoting Jackson

, 443 U.S. at 319). Thus, we cannot conclude that the

erroneous admission of A g e nt Harris’s la y o p i nion affected L opez ’s substantial rig hts or that it “seriously affect[ ed] the fairness, integ r ity or p u b l i c reputation of judicial proceeding s.” Anguiano-Morfin

, 713 F .3d at 1210– 11 (quoting Puckett , 556 U.S. at 135).

o f rem o v al su f

f icien t alo n e to su

p po rt a f in din g o f p h

y sical rem o v al, th e g o v ern m en t h as elicited testim o n y f ro m th e ag en t w

h o sig n ed t

h e w arran t

o f rem o v al o r t estim o n y f ro m an ag en t w ith

th e req u isite ex p erien ce an d train in g ab o u t th e cu sto m an d p ractice o f co m p let i n g t he s e f

o rm s. S ee S a l a za r-Lo

p ez , 5 0 6 F.3 d at 7 5 5 (ex p lain in g t h at alth o u g h a w arran t o f

rem o v al is su f

f i cien t ev id en ce o f rem o v al stan d in g alo n e, th e ev id en ce of
p h y sical rem o v al w as b o l stered by th e testim o n y o f th e o f f icer w h o sig n ed d ef en d an t ’ s w ar r a n t o f rem o v al); Ba h en a -Ca rd en a s , 4 1 1 F.3 d at 1 0 7 2 (n o tin g th at th e ag en t w h o s ig n ed th e w arran t o f d ep o rtatio n d id n o t testif y , b u t an o th er ag en t “ testif ied th at th e n o rm al p ractice is f or d ep o rtatio n

o f f icers to sig n th e w arran t o f d ep o rtatio n w h en th ey see th e alien leav e th e Un ited States”).U N I T E D S T A T E S V

. L O P E Z 26

I V.

L o p ez arg ues that the district court abused its d iscret i o n when it denied his Rule 33 motion for a new trial without an evidentiary hearing

. See United States v. Y o ung , 17 F .3d 1201, 1202 (9th Cir. 1994). L o pez moved for a new trial on the basis that Ag ent Harris testified falsely w h en he stated that an alien is fing erprin t e d as he steps off the bus in Nog al e s , immediately b efore being removed across the border. The d a y a f

ter the jury convicted L opez , defense counsel, accompanied by a n investig ator for t h e public defender’s o ffice, Alonz o Garci a, interviewed Customs a nd B order Protection Supervisor Georg e Schmid. A c cording to L opez , Officer Schmid confirmed that A g ent Harris testified falsely

, asserting that someone wh o i s removed a cross the border at Nog ales is n ot fing erprinted as he g ets o f f the bus; instead, he is fing erprinted at the processing station.

The d istrict court did not abuse its di scretion in deny ing L opez ’s motion for a new trial. The d istrict c o u r t correctly found L opez ’ s motion for an evidentiary h e a r ing to crossex a mine Ag ent Harris and O fficer Schmid untimely under L ocal Rule 7-8. However, t h e d i strict court also considered the merits of L opez ’s arg ument and did not clearly err when it found insufficient evidence of false testimony

. The sig n ed declarations of Officer Schmid and I nvestig ator Garcia upon which L opez relies do not directly contradict Ag ent Harris’s testimony at trial; the unsig ned declaration that did contradict Ag ent Harris’s testimony was subsequently sig ned only a fter the c ontradictory lang uag e had been e x cised. And, even if Ag ent Harris testified falsely about the location at which the fing erprint is taken, that p oint is so tan ge ntial that L opez cannot meet his burden of s howing “there is a reasonable probabi l i ty that w ithout the e vidence the result of theU N I T E D S T A T E S V

. L O P E Z 27

proceeding would have been different.” U n i t ed States v

. Inzunza
, 638 F .3d 1006, 1020 (9th Cir. 2011) (internal quotation marks omitted).

V.

According ly , we find no reversible error and therefore affirm.

AF F IRMED.