United States Court of Appeals For the First Circuit

No. 20-1188

UNITED STATES OF AMERICA,

Appellee,

v.

NELSON ALEXANDER FUENTES-LOPEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph Laplante, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges.

Christine DeMaso, Assistant Federal Public Defender, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee.

April 12, 2021 SELYA, Circuit Judge. Defendant-appellant Nelson

Alexander Fuentes-Lopez was convicted, after a jury trial, on a

charge of unlawful reentry into the United States. See

(a). On appeal, he mounts two claims of error. Both claims

draw a bead on the government's introduction into evidence, under

the aegis of Federal Rule of Evidence 803(8), of a particular

document — a so-called I-296 form. His first claim of error posits

that the document failed to satisfy the "trustworthiness"

requirement of the rule. His second claim of error posits that

the document, even if duly admitted, was insufficient to prove the

"previously removed" element of the statute of conviction, see

§ 1326(a)(1), so his motion for judgment of acquittal should have

been granted. Concluding, as we do, that both claims of error are

wide of the mark, we affirm.

I. BACKGROUND

We briefly rehearse the relevant facts. On May 13, 2019,

the appellant was a passenger in a car stopped by a New Hampshire

state trooper. None of the three men in the car had a driver's

license, but all of them carried Guatemalan identification cards.

The trooper proceeded to call Immigration and Customs Enforcement

(ICE) and transported all of the men to a nearby police station.

Federal authorities thereafter charged the appellant with illegal

reentry into the United States — a crime committed when an alien,

after having been deported, is then found in the United States

- 2 - without permission. See id. § 1326(a); see also United States v.

García,

(1st Cir. 2006).

The appellant maintained his innocence and, at trial,

the government sought to introduce into evidence, under the public

records exception to the hearsay rule, an I-296 form purportedly

signed by the appellant. See Fed. R. Evid. 803(8). The government

presented a number of witnesses in an effort to show that the

I-296 form satisfied the admissibility requirements of Rule

803(8). We summarize the relevant aspects of that testimony.

Outside the presence of the jury, an immigration

officer, Ivan Gonzalez, explained the significance of the I-296

form. Specifically, Gonzalez testified that the form has two

purposes: to notify the alien that he is being ordered removed

from the United States and to verify the alien's removal. The

form itself makes it apparent that the top half notifies the alien

of the order for his removal and the bottom half verifies the

removal itself. Gonzalez also testified that the signature of the

ICE officer on the bottom half of the form indicates that the

officer verified the alien's removal.1

In front of the jury, the government presented the

testimony of David Sanchez, a Customs and Border Protection (CBP)

1 In this instance, the bottom half of the I-296 form was signed by Agent Sotero Cepeda. It is undisputed that, at the time of trial, Cepeda was in a coma and unavailable to appear as a witness.

- 3 - agent, whose job responsibilities included completing paperwork

for aliens about to be deported. He testified that he routinely

completes the top half of I-296 forms and that he completed and

signed the top half of the appellant's I-296 form. He further

testified that the appellant's I-296 form bore an "A-File number"

— an individualized file number that the government assigns to an

alien at the beginning of the removal process.

Another witness, Michael Joseph Spaniol, worked as a

records and information management specialist for the United

States Citizenship and Immigration Services. Elaborating on the

meaning of the A-File number, Spaniol testified that such a file

is meant to record all of an alien's interactions with certain

government organizations, including ICE, CBP, and the

investigative arm of the Department of Homeland Security. As the

records custodian, he reviewed the appellant's I-296 form and

certified that it was in the appellant's A-File.2

When the government sought to admit the appellant's

I-296 form into evidence, he objected. The appellant argued that

the form was untrustworthy because the "individual who created

this document" — a reference to Agent Cepeda, see supra note 1 —

"has some issues with credibility and dishonesty." The district

2Outside the jury's presence, Spaniol testified that I-296 forms are included in A-File records in the regular course of business.

- 4 - court overruled the objection, holding that the government had

satisfied the requirements of the public records exception.

At the close of all the evidence, the appellant moved

for judgment of acquittal. See Fed. R. Crim. P. 29(a). The

district court reserved decision on this motion. After the jury

returned a guilty verdict, the district court denied the

appellant's Rule 29 motion and sentenced him to time served. This

timely appeal followed.

II. ANALYSIS

As said, the appellant advances two claims of error. We

address them sequentially.

A. Admissibility of the Evidence.

Rule 803(8) delineates an exception to the bar on hearsay

evidence for:

Public Records. A record or statement of a public office if: (A) it sets out: (i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

Fed. R. Evid. 803(8). In this venue, the appellant challenges the

admission of the I-296 form on the ground that he made the

requisite showing of a lack of trustworthiness.

- 5 - Our standard of review is familiar. When a claim of

error is properly preserved in the district court, we review a

district court's admission or exclusion of evidence for abuse of

discretion. See United States v. Rodríguez-Vélez,

(1st Cir. 2010). Under this standard, "we may overturn a

challenged evidentiary ruling only if it plainly appears that the

court committed an error of law or a clear mistake of judgment."

Daumont-Colón v. Cooperativa de Ahorro y Crédito de Caguas,

(1st Cir. 2020) (quoting Torres-Arroyo v. Rullán,

(1st Cir. 2006)). Unpreserved claims of error are

reviewed only for plain error. See United States v. Gordon,

(1st Cir. 2017).

The main thrust of the appellant's argument is that Agent

Cepeda (the agent whose signature verified the appellant's

removal) should be regarded as untrustworthy. In support, the

appellant notes that Cepeda was charged, in 2001, with the crimes

of forgery and theft. Given that the appellant raised this

objection below, we review the district court's overruling of it

for abuse of discretion.

The appellant does not argue that Cepeda was convicted

of forgery, theft, or any other crime — only that he was charged

with forgery and theft. But those charges, he concedes, were

either rejected by the prosecutor or dismissed. That fact is of

great consequence: merely showing that Cepeda was arrested and

- 6 - charged is not sufficiently probative of untrustworthiness as to

warrant disregard of a record verified by Cepeda. As the Supreme

Court has stated, "[a]rrest without more does not, in law any more

than in reason, impeach the integrity or impair the credibility of

a witness. It happens to the innocent as well as the guilty."

Michelson v. United States,

(1948); see Cheek v.

Bates,

(1st Cir. 1980) (explaining that "mere

arrest without a conviction would be clearly inadmissible to show

general lack of credibility"). It follows that the district

court's rejection of the appellant's argument was well within the

compass of its discretion.

The appellant has a fallback position. He argues for

the first time on appeal that the I-296 form was untrustworthy

because the government failed to show what procedures Cepeda

normally followed when completing such forms and whether Cepeda

followed his modus operandi with respect to the appellant's I-296

form. Because this objection was not raised below, our review is

for plain error. See Gordon,

.

As we have noted, "[t]he plain error hurdle is high."

United States v. Hunnewell,

(1st Cir. 1989).

"To prevail on plain error review, the defendant must show:

'(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

- 7 - reputation of judicial proceedings.'" Gordon,

(quoting United States v. Duarte,

(1st Cir. 2001)).

Moreover, the party claiming plain error must carry the devoir of

persuasion on all four elements of the standard. See

Here, the appellant's claim of error stumbles over the

first two steps of the plain error formulation (which we treat in

tandem). The appellant frames this claim of error solely as a

claim directed to Rule 803(8)'s trustworthiness requirement; he

does not contend that the form failed to satisfy any of the other

requirements of Rule 803(8). Like the district court, we therefore

take the form to be a public record — a status that endows it with

presumptive reliability. See Fed. R. Evid. 803(8) advisory

committee's note to 2014 amendment (explaining that "[p]ublic

records have justifiably carried a presumption of reliability").

So, too, because the appellant does not gainsay that the I-296

form satisfies the other requirements of the exception, that is,

that it is a public record prepared by a public office, which sets

out information as specified in the rule, the burden shifts to the

appellant "to show that the source of information or other

circumstances indicate a lack of trustworthiness." Fed. R. Evid.

803(8)(B); see Robbins v. Whelan,

(1st Cir.

1981).

The appellant has not carried this burden. His argument

boils down to a plaint that the district court lacked adequate

- 8 - information about the procedures surrounding the creation of the

I-296 form. But this plaint puts the burden in the wrong place.

Rule 803(8) is a pathway to admissibility, anchored in the concept

that public officials will perform their responsibilities

appropriately. See Fed. R. Evid. 803(8) advisory committee's note

to 1972 proposed rules (explaining that part of the

"[j]ustification for the exception is the assumption that a public

official will perform his duty properly"); Zeus Enters., Inc. v.

Alphin Aircraft, Inc.,

, 241 (4th Cir. 1999). The

party challenging the admissibility of a public record that is

relevant and that conforms to the requirements of Rule 803(8)(A)

can challenge its admission only by making an affirmative showing

that the record is untrustworthy under Rule 803(8)(B). See United

States v. Versaint,

(3d Cir. 1988). Under this

standard, a paucity of evidence concerning the extent to which

creating the form was a routine procedure cannot, by itself,

constitute such an affirmative showing. See Crawford v. ITW Food

Equip. Grp., LLC,

(11th Cir. 2020). In

other words, to show untrustworthiness, the appellant cannot

simply identify a lack of proof regarding the circumstances

surrounding the creation of the form but, rather, must show that

something specific, resulting from those circumstances, adversely

affected the trustworthiness of the form. See Zeus Enters., Inc.,

190 F.3d at 241; Versaint,

.

- 9 - This holding effectuates the core purpose of Rule

803(8). If we were to find that, even absent any tangible indicia

of unreliability, a mere lack of evidence about the procedures

leading to the creation of a public record rendered the record

untrustworthy under Rule 803(8)(B), we would eviscerate the

presumptive reliability traditionally accorded to public records

under Rule 803(8)(A). Moreover, we do not agree that the record

in this case reflects a paucity of information about the normal

procedures that surround an I-296 form: Ivan Gonzalez's testimony

went to the selfsame topic. Given his failure to make an

affirmative showing of untrustworthiness, we conclude that the

appellant has failed to demonstrate that the district court

committed error — much less plain error — in admitting the I-296

form into evidence.

B. Sufficiency of the Evidence.

This brings us to the appellant's assertion that his

motion for judgment of acquittal should have been granted for lack

of sufficient evidence. His challenge rests on a claim that the

government failed to prove an element of the offense, namely, that

he had previously been removed from the United States. See

(a)(1).

We review the sufficiency of the evidence de novo. See

United States v. Sabean,

(1st Cir. 2018). In that

process, we take the evidence in the light most favorable to the

- 10 - government, draw all reasonable inferences to its behoof, and ask

whether a rational jury could find that the government proved all

the elements of the offense beyond a reasonable doubt. See

"To uphold a conviction, the court need not believe that no verdict

other than a guilty verdict could sensibly be reached, but must

only satisfy itself that the guilty verdict finds support in a

plausible rendition of the record."

(internal quotation marks

omitted) (quoting United States v. Williams,

(1st

Cir. 2013)).

At trial, the government introduced the appellant's

I-296 form to prove his prior removal. The bottom half of this

form is headed "Verification of Removal" in bold font. This

portion of the form also contains a photograph of the appellant,

his signature, and his fingerprint. Similarly, the signature of

the verifying officer (Agent Cepeda) appears as part of the

Verification of Removal, immediately below what is listed as the

appellant's date of departure, port of departure, and manner of

departure.

Because the district court acted within its discretion

in admitting this form into evidence as a public record under Rule

803(8), see supra Part II(A), the form serves as proof of the truth

of the matters that it asserts. See United States v. Phoeun Lang,

(1st Cir. 2012); Yongo v. INS,

(1st Cir. 2004). The form, fairly read, asserts that the appellant

- 11 - was removed from the United States on a particular date (July 18,

2014), from a particular place (Brownsville, Texas), and in a

particular manner (by airplane). Seen in this light, the

government's proof of the "previously removed" element of the

offense was sufficient to ground the conviction.

In an effort to blunt the force of this reasoning, the

appellant argues that the government never adduced evidence to

explain what Agent Cepeda was actually verifying. But as we

already have noted, the bottom half of the form is entitled

"Verification of Removal" and lists the date of departure, port of

departure, and manner of departure. It also contains the

appellant's photograph, signature, and fingerprint. In addition,

the top half of the form is entitled "Notice to Alien Ordered

Removed/Departure Verification" and lists the appellant's A-File

number.

Criminal juries are permitted to draw reasonable,

commonsense inferences from the facts in evidence. See United

States v. Acosta-Colón,

(1st Cir. 2013);

United States v. Echeverri,

(1st Cir. 1993).

From the facts described above, it is a reasonable, commonsense

inference that what the bottom half of the I-296 form was verifying

was the appellant's removal from the United States on July 18,

2014. No more was exigible to prove the "previously removed"

element of the offense of conviction.

- 12 - The appellant resists this conclusion. He says that it

requires "impermissible inference stacking." United States v.

Guzman-Ortiz,

(1st Cir. 2020) (refusing to credit

stacked inferences when reviewing district court's disposition of

motion for judgment of acquittal). Specifically, he identifies

four examples of what he calumnizes as "inference-stacking." We

address each example in turn.

First, the appellant claims that the government's

argument requires the added inference that the I-296 form is a

normal incident of the removal process. That claim is simply

wrong: the I-296 form is proof of the matters that it asserts,

whether or not the form is a normal incident of the removal

process. See García,

(accepting warrant of

deportation as evidence of removal without regard to whether it

formed a normal part of the removal process).

Second, the appellant claims that the government's

argument requires the added inference that Agent Cepeda's

signature indicates that he personally witnessed the appellant's

deportation. This claim fails because the government had no

obligation to adduce eye-witness evidence in order to prove prior

removal. See United States v. Floyd,

(1st Cir.

2014) (explaining that "circumstantial evidence alone" may be

sufficient to support criminal conviction). In addition, the claim

also fails as a back-door attempt to reject the district court's

- 13 - unchallenged Rule 803(A)(ii) finding that the document "set[] out

. . . a matter observed" by a public official.

Third, the appellant claims that the government's

argument requires the added inference that words on the form have

particular meanings. But words mean what they mean in particular

contexts, and no additional inference is required to give a word

its reasonable, commonsense meaning. See United States v. Ridolfi,

(1st Cir. 2014) (stating that jury may properly

reach guilty verdict by drawing "reasonable, common sense

inferences" from the evidence). Were the law otherwise, even the

most straightforward of inferences — say, an inference that a

defendant who cried "Die!" when he pointed his gun at the

complainant intended to kill the complainant — would run afoul of

the prohibition against inference-stacking.

Fourth, and finally, the appellant claims that the

government's argument requires the added inference that the person

signing the form (here, Agent Cepeda) followed regular procedures

(including procedures obliging him to verify that the appellant

was removed). This claim, if upheld, would sap the strength of

the public records exception to the hearsay bar. Moreover, it

flies in the teeth of García, in which we held that a warrant of

deportation was evidence of removal without regard to the absence

of any evidence that the officer signing the warrant had followed

regular procedure.

.

- 14 - That ends this aspect of the matter. We hold that —

taking the evidence in the light most favorable to the government

and drawing all reasonable inferences in its favor — the record

adequately supports a finding that the appellant was previously

removed. It follows that the district court did not err in denying

the appellant's motion for judgment of acquittal.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment is

Affirmed.

- 15 -