NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LUIS MIGUEL CERDA-RAMIREZ, 

Defendant-Appellant.

No. 17-50121 

D.C. No. 

3:17-cr-00412-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted March 9, 2018

Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District 

Judge.

Luis Miguel Cerda-Ramirez was charged with felony illegal entry in 

violation of 8 U.S.C. § 1325, in the Southern District of California in February

2017. Following trial, a jury found Cerda-Ramirez guilty of the lesser-included

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

APR 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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misdemeanor illegal entry offense. At trial, the government introduced as evidence 

four documents related to a separate case from the Middle District of Florida

concerning one Luis Miguel Cerda-Ramirez. The parties contested whether the 

defendant in the Florida case and the defendant in the present case were the same 

person. The four disputed documents from the Florida case were: (1) the criminal 

complaint and accompanying affidavit; (2) the guilty plea transcript; (3) the 

judgment; and (4) a document entitled USM-129, which contained biographical 

information about the defendant in the Florida case. The district court admitted the 

first three documents under the judicial notice doctrine. The district court did not 

specify the basis on which it admitted the USM-129 document.

On appeal, Cerda-Ramirez challenges the district court’s use of the judicial 

notice doctrine in this case. He asserts the district court admitted all documents 

through judicial notice because the district court offered no other express basis for 

admitting the USM-129. Cerda-Ramirez contends the district court erred in 

admitting the documents because they are not judicially noticeable, do not meet 

any hearsay exception, and two of the documents violate the Confrontation Clause.

Further, Cerda-Ramirez argues that the district court’s errors were not harmless. 

Lastly, he asserts the district court erred by failing to instruct the jury pursuant to 

Federal Rule of Evidence 201(f), which would have explained that the jury did not 

have to consider judicially noticed facts as conclusive. We have jurisdiction 
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pursuant to 28 U.S.C. §§ 1291 and 1294. Although the district court erred in 

admitting three of the documents under the judicial notice doctrine and by not 

instructing the jury under Rule 201(f), for the reasons detailed below, we affirm.

1. We review the district court’s decision to take judicial notice of the 

contested documents for abuse of discretion but reverse only where a district 

court’s error more likely than not affects the verdict. United States v. Chapel, 41 

F.3d 1338, 1342 (9th Cir. 1994); see also United States v. Chang Da Liu, 538 F.3d 

1078, 1085 (9th Cir. 2008) (a “district court’s decision to admit or exclude 

evidence . . . will be reversed only if the error more likely than not affected the 

verdict.”). However, where the district court admits evidence on an incorrect basis 

but the evidence is nevertheless admissible for a different reason, no reversible 

error occurs. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th 

Cir. 1997).

2. The district court improperly took judicial notice of the criminal 

complaint and accompanying affidavit from the Florida case because courts cannot 

take judicial notice of facts subject to reasonable dispute. See Lee v. City of Los 

Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001). Here, the complaint and affidavit 

contain facts subject to reasonable dispute, including whether the defendant in the 

Florida case and the defendant in the present case were the same person. 

Further, the criminal complaint and accompanying affidavit were 
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inadmissible under Fed. R. Evid. 803(8) because they are adversarial documents. 

Cf. Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) (noting that

prosecutors filing criminal complaints exercise “independent judgment in 

determining that probable cause for an accused’s arrest exists.” This indicates that 

criminal complaints are adversarial documents because prosecutors must support 

their accusations with probable cause.) (citation omitted). Pursuant to Rule 803(8), 

“a record or statement of a public office” is admissible if, as relevant here, “it sets 

out a matter observed while under a legal duty to report, but not including, in a 

criminal case, a matter observed by law-enforcement personnel” and “the opponent 

does not show that the source of information or other circumstances indicate a lack 

of trustworthiness.” Fed. R. Evid. 803(8)(A)(ii), (B). However, “the purpose of the 

law enforcement exception is to exclude . . . observations made in an adversarial 

setting.” United States v. Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (citations 

and internal quotation marks omitted) (emphasis in original). Here, the government 

points to no authority where a court has admitted a criminal complaint and 

supporting affidavit under the public record exception to the hearsay rule.

Moreover, the complaint and affidavit are testimonial and their admission 

would violate the Confrontation Clause because Cerda-Ramirez was not able to 

cross-examine the person who prepared the documents. See Crawford v. 

Washington, 541 U.S. 36, 51, 59 (2004). Therefore, the district court abused its 
5 

discretion in admitting the criminal complaint and accompanying affidavit. See 

United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

3. The district court improperly took judicial notice of the guilty plea 

transcript from the Florida case because courts cannot take judicial notice of facts 

subject to reasonable dispute. See Lee, 250 F.3d at 689–90. Here, the transcript 

contains facts subject to reasonable dispute, particularly whether the defendant in 

the Florida case and the defendant in the present case were the same person. 

Moreover, the government’s argument that the plea transcript is admissible under 

the public record exception to the hearsay rule pursuant to Rule 803(8) is 

unavailing. The only authority the government cites to support this contention,

United States v. Arias, 575 F.2d 253 (9th Cir. 1978), does not support the 

government’s position because the transcript cannot be used to prove the truth of a 

matter asserted during the transcribed proceeding. Arias, 575 F.2d at 254 n.1 

(citing Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952) (holding 

“that a transcript of a former proceeding is not admissible under the government 

records exception to prove the truth of matters asserted by a witness quoted 

therein.”)). Accordingly, the district court abused its discretion in admitting the 

plea transcript because it is not a public record. See Hinkson, 585 F.3d at 1251.

4. The district court improperly took judicial notice of the judgment

from the Florida case because courts cannot take judicial notice of facts subject to 
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reasonable dispute. See Lee, 250 F.3d at 689–90. The government argues the 

district court properly admitted the judgment under Fed. R. Evid. 803(22).

However, because the parties contested at trial whether the person sentenced in the 

Florida case was in fact the defendant in the present case, the judgment does not 

meet Rule 803(22)(D)’s requirement that “when [a judgment is] offered by the 

prosecutor in a criminal case for a purpose other than impeachment, the judgment 

was against the defendant.” Here, again, it is unclear that the “Luis Miguel CerdaRamirez” named in the judgment is in fact the same person as the defendant in the 

present case as the parties contested that issue at trial and Rule 803(22)(D) requires 

that a judgment from a previous conviction be a judgment against the same 

defendant. Therefore, the district court abused its discretion in admitting the

judgment from the Florida case.

5. The record does not reflect that the district court took judicial notice 

of the USM-129. Indeed, the district court did not specify the basis on which it 

admitted the USM-129. Nevertheless, the district court properly admitted the 

USM-129 because the USM-129 is a public record admissible under Rule 803(8). 

Routine, non-adversarial records prepared by law enforcement personnel, such as 

the USM-129, are admissible. Fryberg, 854 F.3d at 1132. The USM-129 contains 

biographical information. Moreover, nothing in the USM-129 suggests that this 

document is adversarial in nature. Therefore, the USM-129 was admissible under 
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Rule 803(8) and the district court did not commit reversible error. See LoyolaDominguez, 125 F.3d at 1318.

6. Even though the district court abused its discretion in admitting the 

complaint and accompanying affidavit, the plea transcript, and the judgment from 

the Florida case, the errors were harmless. Cerda-Ramirez was convicted of 

misdemeanor illegal entry under 8 U.S.C. § 1325. This means the government had 

to prove beyond a reasonable doubt that Cerda-Ramirez was (1) an alien (2) who 

knowingly entered the United States (3) at a nondesignated entry point. 8 U.S.C. 

§ 1325; cf. United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984)

(listing the elements for felony illegal entry, which includes an additional element 

as compared to misdemeanor illegal entry—the defendant must have previously 

been convicted of illegal entry). At trial, Cerda-Ramirez did not contest alienage

because Cerda-Ramirez admitted that he is a Mexican citizen. Further, the 

government presented: (1) circumstantial evidence that Cerda-Ramirez entered the 

United States by scaling a fence and direct evidence that he thereafter hid from the 

Border Patrol; (2) Cerda-Ramirez admitted to a Border Patrol agent during a 

videotaped interview that he was born in Mexico and the tape was played to the 

jury; and (3) Cerda-Ramirez separately admitted to his arresting Border Patrol 

officer that he is a Mexican national. Taken together, the evidence sufficiently 

corroborates Cerda-Ramirez’s admission that he is a Mexican national. See United 
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States v. Nunez-Beltran, 434 F. App’x 640, 642 (9th Cir. 2011). Accordingly, the 

record supports the jury’s guilty verdict and the district court’s errors in admitting 

the contested documents were harmless. See United States v. Pena-Gutierrez, 222 

F.3d 1080, 1089 (9th Cir. 2000). Further, the jury convicted Cerda-Ramirez only 

on the lesser-included misdemeanor offense, not the felony charge. Thus, whether 

Cerda-Ramirez was the same individual convicted in the Florida case ultimately 

has no bearing on the verdict in this case.

7. The district court erred by failing to instruct the jury that the jury did 

not have to accept the judicially noticed facts as conclusive pursuant to Fed. R.

Evid. 201(f). See Chapel, 41 F.3d at 1342. We review this error for plain error 

under the following four-part test: (1) there must be error; (2) it must be plain; (3) 

the error affects substantial rights; and (4) the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings. See United States v. Perez, 

116 F.3d 840, 845–46 (9th Cir. 1997) (en banc) (citations omitted). The first two 

factors are met because it is undisputed that the district court failed to give the Rule 

201(f) instruction. Id. at 846; Chapel, 41 F.3d at 1342. However, for the reasons 

detailed above, the district court’s error was not prejudicial1, see Perez, 116 F.3d at 

 

1 The Supreme Court has explained that an error affecting substantial rights “in 

most cases [] means that the error must have been prejudicial: It must have affected 

the outcome of the district court proceedings.” See United States v. Olano, 507 

U.S. 725, 734 (1993).
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847, and the district court’s error does not meet the fourth factor. See Olano, 507 

U.S. at 727, 737, 741 (holding that though it was a violation of Fed. R. Evid. 24(c) 

for alternate jurors to be present during jury deliberations, the error did not 

constitute plain error because it did not affect substantial rights and the Ninth 

Circuit had no authority to correct it). Accordingly, the district court did not plainly 

err by failing to instruct the jury pursuant to Fed. R. Evid. 201(f).

AFFIRMED.