Federal Evidence Review

In alien reentry trial, proof that the defendant had been previously deported was not limited to Fed. R. Civ. P. 44 (Proving an Official Record), permitting other means of authentication under FRE 901(b)(10), in United States v. Estrada-Eliverio, 583 F.3d 669 (9th Cir. Oct. 5, 2009) (No. 07-50191)

FRE 901(b)(10) provides for authentication by “any method of authentication … provided by … other rules prescribed by the Supreme Court….” As explained in the Advisory Committee Note, this provision “makes clear that methods” specified by the Rules of Civil and Criminal Procedure are equally applicable to the methods set out by FRE 901. If other rules may serve to authenticate for purposes of the FRE, is the favor returned by those other rules – will they consider authenticated a document that was authenticated under non-evidence rules? A recent Ninth Circuit case demonstrates that the answer is “yes.”

In the case, defendant Estrada-Eliverio was tried for illegal reentry into the United States by a deported alien. Conviction of that crime requires, among other elements, that the government prove beyond a reasonable doubt that the defendant had previously been “deported from the United States.” 8 U.S.C. § 1326(a). At the defendant’s trial, the government sought to prove this by introducing “his A-file (immigration file).” Specifically, an investigating agent testified that the documents introduced at trial indicated the prior deportation. The records produced at trial were “accurate copies of documents he personally knew were” from the defendant’s A-file. The defendant was convicted. On appeal, he contended that the proof of the prior deportation element was deficient because the A-file had not been sufficiently authenticated. The parties apparently agreed that had not the A-file been “introduced into evidence, the prosecution would not have been able to show the defendant had previously been deported.” Estrada-Eliverio, 583 F.3d at 671.

The Ninth Circuit affirmed the conviction, finding that the proof that the defendant had been deported was sufficient under Fed. R. Civ. P. 44 (Proving an Official Record), contrary to the defendant’s contentions. The circuit noted under Civil Procedure Rule 44, made applicable to the defendant’s criminal trial through the agency of Fed. R. Crim. P. 27 (“A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action.”), any means of authentication specified by FRE 901 would satisfy the requirements of Civil Procedure Rule 44. Rule 44 provides a means of proving an “official record” which expressly provides:

“[A]n official record is admissible if it is an ‘official publication’ of the record or a copy of the record ‘attested by the officer with legal custody of the record’ and accompanied by a certificate, made under seal, that the officer has custody. Fed. R. Civ. P. 44(a). In addition, the Rule allows a party to prove that a document is an official record ‘by any other method authorized by law.’ Fed R. Civ. P. 44(c).”

Estrada-Eliverio, 583 F.3d at 672 (footnote omitted).

It was not disputed that the government provided no attestation of the A-file by the officer with legal custody of it, as Fed. R. Civ. P. 44 would allow. However, the document could be authenticated under the FRE, the circuit noted, because Civil Procedure Rule 44 “provided an alternative basis for establishing the documents' authenticity. In light of the evidence the government presented to meet its burden under FRE 901, the court properly admitted the A-file documents.” Estrada-Eliverio, 583 F.3d at 672.

The circuit rejected the defendant’s attempt to argue that Rule 44 precluded use of the FRE. It noted that the civil rule was originally drafted before any code of federal evidence rules existed and that it would be a mistake to read the civil rule any other way than to “clearly permit[ ] authentication of official documents under the Federal Rules of Evidence.” Estrada-Eliverio, 583 F.3d at 672.

Turning to FRE 901, the circuit found no authentication error. The circuit rejected the defendant’s argument that the authenticating agent “did not have personal knowledge of the records' creation. Such personal knowledge was not needed. The circuit noted that the rule “provides for authentication of a public record with ‘[e]vidence that [a purported public record] ... is from the public office where items of this nature are kept.’” Estrada-Eliverio, 583 F.3d at 673 (quoting FRE 901(b)(7)). In this light, “FRE 901 does not require personal knowledge of a document's creation, but rather only personal knowledge that a document was part of an official file.” Estrada-Eliverio, 583 F.3d at 673 (quoting ACN 901 (“Public records are regularly authenticated by proof of custody, without more.”)). Because it was clear that the agent did have sufficient personal knowledge that the document was part of the office file, his testimony was “sufficient to make a prima facie case for authenticity. The district court therefore did not abuse its discretion in admitting the documents on the basis of this testimony.”

Estrada-Eliverio makes it clear that any official document authenticated under FRE 901 qualifies as authenticated under Fed. R. Civ. P. 44. The case did not address the reverse situation – whether satisfaction of authentication under Fed. R. Civ. P. 44 necessarily renders an official document admissible under the FRE. The available cases, although old, suggest that this would not be the case. See United States v. Verville, 355 F.2d 527, 530 n.5 (7th Cir. 1965) (noting without citation that Fed. R. Civ. P. provides a method of proving an official record if it is otherwise admissible but that the civil rule does not render an authenticated but otherwise inadmissible document admissible, e.g., such as a hearsay document).