Argued and Submitted March 13, 2013—San Francisco, California
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding D.C. No. 4:11-cr-02782-CKJ-HCE-1
John D. Kaufmann, Tucson, Arizona, for Defendant-Appellant.
Ryan P. DeJoe (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Christina M. Cabanillas, Appellate Chief, Tucson, Arizona, for Plaintiff-Appellee.
Before: M. Margaret McKeown, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
The panel affirmed convictions for conspiracy to transport aliens who unlawfully came to or entered the United States and for transporting such aliens for private financial private gain, in a case in which the defendant challenged the admissibility of forms filled out by Border Patrol agents in the field, which included statements by the smuggled aliens that they were in the United States illegally.
The panel held that admission of the forms did not violate the Confrontation Clause, but that the aliens' admissions included in the forms were inadmissible hearsay. Because the forms are records of government agencies, the panel held that the district court erred by admitting them under the business records exception to the hearsay rule, Fed.R.Evid. 803(6). The panel also held that the aliens' statements that they were in the United States illegally do not qualify as public records under Fed.R.Evid. 803(8) because they do not describe "activities" of the government, and the government does not argue that aliens are under a "duty to report" their immigration status.
The panel held that the error was harmless because the erroneously admitted hearsay did not materially affect the verdict.
IKUTA, Circuit Judge.
Kaleena Leah Morales appeals her convictions for one count of conspiracy to transport aliens who unlawfully came to or entered the United States, and three counts of transporting such aliens, in each case for private financial gain. See 8 U.S.C. § 1324. Among other claims, she challenges the admissibility of certain forms filled out by Border Patrol agents in the field, which included statements by the smuggled aliens that they were in the United States illegally. We hold that the admission of the forms did not violate the Confrontation Clause, but the aliens' admissions included in ...