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Case Name:

Case Number:

Date Filed:






                                                     No. 99-50394
                                                     D.C. No.

Appeal from the United States District Court
for the Southern District of California
John S. Rhoades, District Judge, Presiding

Argued and Submitted
April 5, 2000--Pasadena, California

Filed June 21, 2000

Before: Stephen Reinhardt and Diarmuid F. O'Scannlain,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.

Opinion by Judge O'Scannlain


*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.


Leslie S. Daniels (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for the defendant-appellant.

Bruce R. Castetter and Kevin J. Kelly (argued), Assistant
United States Attorneys, San Diego, California, for the



O'SCANNLAIN, Circuit Judge:

We must decide whether a "Certificate of Nonexistence of
Record" issued on behalf of the Attorney General was appro-
priately admitted into a criminal trial for illegal reentry by an
alien as evidence of lack of permission despite the fact that
the document was not executed by an officer to whom the
Attorney General had expressly delegated such authority.



On July 6, 1998, an agent of the U.S. Border Patrol who
was patrolling near Jamul, California, discovered Francisco
Mateo-Mendez ("Mateo") and two other individuals hiding
under a large pipe under the road. Border patrol agents at the
checkpoint to which Mateo was taken discovered that Mateo
had an extensive criminal history, including prior convictions
for rape and burglary, and had been previously deported.
Mateo admitted at that time that he was an illegal alien and
that he had entered without inspection the day before.

One week later, Mateo was indicted on one count of illegal
reentry in violation of 8 U.S.C. S 1326. At Mateo's jury trial,
the government offered a "Certificate of Nonexistence of
Record" ("CNER"), executed on July 23, 1998, by Karen A.
Malveaux Joy. Joy certified that she was a "management ana-
lyst" in the "Records Services Branch, Office of Records" of
the Immigration and Naturalization Service ("INS"), that she
was authorized under Section 290(d) of the Immigration and
Nationality Act and 8 C.F.R. S 103.7(d)(4)"to certify the non-
existence in the records of the [INS] of an official . . . record
pertaining to a specified person or subject," and that she had
failed to discover any "evidence of the filing of an application
for permission to reapply for admission to the United States"
from Mateo. This CNER, the parties agree, bore both the sig-
nature of Ms. Malveaux Joy and the seal of the INS. Mateo
objected to the admission of the CNER, however, on the
ground, among others, that it had not been properly authenti-
cated because the individual who executed the CNER was not
among the class of individuals to whom the Attorney General
had expressly delegated the authority to make such a certifica-
tion. The district court overruled Mateo's objections, and
Mateo was convicted.

The district court granted a two-level downward departure
to Mateo for acceptance of responsibility pursuant to section
3E1.1(a) of the United States Sentencing Guidelines


("U.S.S.G.") because Mateo "timely provide[d] complete
information to the government concerning his own involve-
ment in the offense." The district court concluded that this
departure left Mateo with an offense level of twenty-two and
sentenced Mateo to a prison term of ninety-four months.

Mateo timely appealed both his conviction and his sen-
tence. He argues, first, that the CNER should not have been
admitted and thus that there was insufficient evidence to sup-
port his conviction of illegal reentry and, second, that the dis-
trict court erred in failing to reduce his sentence with an
additional one-level downward departure under U.S.S.G.
S 3E1.1.


We first address Mateo's assertion that the CNER should
not have been admitted into evidence at his trial. The parties
differ on the standard under which this court should review
the district court's admission of the CNER. Mateo, citing
United States v. Walker, 117 F.3d 417, 419 (9th Cir. 1997)
("The District Court's construction or interpretation of the
Federal Rules of Evidence is a question of law subject to de
novo review."), contends that the appropriate standard is de
novo. The government, however, relies on our decision in
United States v. Wood, 943 F.2d 1048, 1055 (9th Cir. 1991),
and contends that we should review the district court's ruling
only for an abuse of discretion.

In United States v. Owens, 789 F.2d 750, 753 (9th Cir.
1986), rev'd on other grounds, 484 U.S. 554 (1988), we
emphasized that the selection of the applicable standard of
review is contextual: The de novo standard applies when
issues of law predominate in the district court's evidentiary
analysis, and the abuse-of-discretion standard applies when
the inquiry is "essentially factual."

      The district court's construction of the Federal Rules
      of Evidence is a question of law subject to de novo


      review. Questions of admissibility of evidence which
      involve factual determinations, rather than questions
      of law, are reviewed for abuse of discretion. When
      a mixed question of law and fact is presented, the
      standard of review turns on whether factual matters
      or legal matters predominate. If an "essentially factu-
      al" inquiry is present, or if the exercise of the district
      court's discretion is determinative, then we give def-
      erence to the decision of the district court; otherwise,
      we conduct a de novo review.

Id. (citations omitted); see also United States v. Chu Kong
Yin, 935 F.2d 990, 994 (9th Cir. 1991) (quoting Owens).

In the evidentiary ruling that is the subject of the instant
appeal, neither party raises a substantial issue pertaining to the
existence or characterization of facts, and the district court did
not seem to rely on any controverted (or credibly controvert-
ible) facts in rendering its decision. The issue is thus primarily
of law, and the standard of review is thus de novo.


[1] Mateo was indicted and tried for violating 8 U.S.C.
S 1326. That provision makes it a criminal offense punishable
by up to ten years in prison for a person, after his removal
from the United States, either to be found or to attempt to
enter therein "without the permission of the Attorney Gener-
al." 8 U.S.C. S 1326(b)(3)-(4). "To establish a case of
attempted illegal reentry after deportation, the government
must prove that the Attorney General had not consented to the
alien's application for reentry." United States v. Blanco-
Gallegos, _______ F.3d _______, _______, 1999 WL 635749 at *4 (9th Cir.
Aug. 23, 1999). In order to carry its burden, the government
introduced the CNER.

Mateo argues that the CNER should not have been admit-
ted and thus that the government has failed to introduce suffi-


cient evidence to support his conviction. Mateo specifically
objects to the admission of the CNER because it was not
properly authenticated pursuant to Fed. R. Evid. 902 and thus
was admitted despite failing to comply with the requirements
of Fed. R. Evid. 803 (hearsay) and 401 (relevance) and the
Confrontation Clause of the Sixth Amendment.

[2] Notwithstanding the variety of his objections, Mateo
concedes that his argument hinges in full on the alleged
authentication failure. At any rate, it is plain that Mateo's
other objections are weightless in the face of the proper
admission of the CNER as a public document under seal pur-
suant to Rule 902.

[3] With regard to the hearsay objection, Rule 803
expressly provides, inter alia, that "a certification in accor-
dance with Rule 902 . . . that diligent search failed to disclose
the record" offered for the purpose of "prov[ing] the absence
of [the] record" is "not excluded by the hearsay rule." Fed. R.
Evid. 803.10. Mateo argues that Rule 803.10 (which requires
only compliance with Rule 902) imports requirements of
"trustworthiness" and "duty imposed by law " from Rule
803.8 (which addresses not official certifications of the
absence of public records but public records themselves).
Neither legal authority nor logic supports Mateo's effort to
analogize the subjects of Rule 803.10 and Rule 803.8. Mateo
relies on two observations: (1) both rules contain the phrase
"public record[ ]" and (2) both "are premised on the principles
of necessity and trustworthiness." Neither of these observa-
tions, however, compels reliance on factors listed under Rule
803.8 in determining the admissibility of documents that sat-
isfy Rule 803.10. The fact that Rule 803.10 shares a phrase
with Rule 803.8 cannot sensibly be understood to overwhelm
the plain meaning of Rule 803.10, and nothing in the observa-
tion that Rule 803.10 derives from concern for "trustworthi-
ness" supports the inference that the documents whose
admission that rule allows must be found "trustworthy" on
precisely the same bases that Rule 803.8 contemplates. If the


CNER satisfies Rule 902, it satisfies ipso facto the exception
to the hearsay rule in Rule 803.10.

[4] Regarding Mateo's relevance objection, our decision in
Blancos-Gallegos, _______ F.3d at _______, indicating that a CNER
from the INS is sufficient evidence to support a jury's conclu-
sion that the Attorney General has not consented to an alien's
reentry, rebuts Mateo's argument that the CNER is not "rele-
vant" under Rule 401. That rule indicates that evidence is
"relevant" if it enhances the probability "of any fact that is of
consequence to the determination of the action." Id. The
CNER must satisfy this standard if, as settled in Blanco-
Gallegos, it is adequate to support a jury's inference of a fact
that is the subject of a sufficiency-of-the-evidence claim.

Regarding Mateo's Confrontation Clause claim, it has not
been briefed or argued by Mateo but merely asserted in con-
clusory terms. "We `will not ordinarily consider matters on
appeal that are not specifically and distinctly argued in appel-
lant's opening brief,' " Riverside-Linden Investment Co. v.
Crake, 945 F.2d 320, 324 (9th Cir. 1991), and we decline to
do so here.


We limit our analysis, therefore, to whether the district
court erred in concluding that the CNER satisfied the require-
ments for authentication under Rule 902.

[5] Rule 902 provides for the self-authentication of certain
forms of documentary evidence. Relevant to the CNER, the
rule provides:

       Extrinsic evidence of authenticity as a condition
      precedent to admissibility is not required with
      respect to the following:

       (1) Domestic public documents under seal. A
      document bearing a seal purporting to be that of the


      United States . . . or of a political subdivision,
      department, officer, or agency thereof, and a signa-
      ture purporting to be an attestation or execution.

Fed. R. Evid. 902. Under the plain meaning of this section,
then, a document may not be excluded for lack of authentica-
tion if it meets two criteria. First, the document must be under
seal. No party disputes that the CNER was under seal, and
thus the CNER appears to satisfy this criterion. Second, the
document must bear "a signature purporting to be an attesta-
tion." The CNER clearly bears the signature of Karen A.
Malveaux Joy, and, although the signature is not labeled an
"attestation," it appears under a statement that the same per-
son does "certify to the following." The word "certify" means
"[t]o attest as being true." See Black's Law Dictionary 124
(7th ed. 1999) (emphasis added). Hence, the signature on the
CNER does "purport[ ] to be an attestation," and thus satisfies
the second criterion. On its face, then, the CNER comports
with Rule 902(1) and satisfies Rule 902 as a whole.

Mateo argues, however, that the authentication is deficient
because Joy is not authorized (despite her certification to the
contrary) to issue a CNER. Mateo cites 8 U.S.C.S 1360(d)
and 8 C.F.R. S 103.7(d)(4). The first of these authorities

       Establishment of central file; information from
      other departments and agencies

       (d) A written certification signed by the Attorney
      General or by any officer of the [INS] designated by
      the Attorney General to make such certification, that
      after diligent search no record or entry of a specified
      nature is found to exist in the records of the [INS],
      shall be admissible as evidence in any proceeding as
      evidence that the records of the [INS] contain no
      such record or entry . . . .


8 U.S.C. S 1360. Mateo argues that, because the Attorney
General neither herself certified the information in the CNER
nor designated Joy to certify the information, Joy lacked
authority to attest to or execute the CNER. The government
does not dispute that Joy may lack this authority, for (as an
officer of the "Record Services Branch" of the INS) she falls
outside the scope of the Attorney General's designation of
certification authority in the relevant regulation:

       (d) Authority to certify records. Whenever autho-
      rized under 5 U.S.C. 552 or any other law to furnish
      information from records to persons entitled thereto,
      the following officials, or their designees authorized
      in writing as specified below, have authority to make
      certification, as follows:

       . . . .

       (4) The Assistant Commissioner, Records Sys-
      tems Division, the Director, Records Management
      Branch, or the Chief, Records Operations Section,
      Central Office, or their designee, authorized in writ-
      ing to make certification in their absence--the non-
      existence of an official [INS] records.

8 C.F.R. S 103.7.1

[6] The flaw in Mateo's argument regarding authority
under 8 U.S.C. S 1360(d) and 8 C.F.R. S 103.7 is that Rule
902(1) does not require that a delegation of authority to make
certifications be apparent in those provisions (or in any other
provision of law). Indeed, the language of Rule 902 implies
1 The CNER was entered with another document under seal certifying
that Joy does indeed have the authority to execute CNERs, but the officer
who executed that certification, Ruth E. Jones, Chief of the Record Ser-
vices Branch of the INS, also appears to lack any delegation of authority
to make such certifications on behalf of the Attorney General.


the contrary. Rule 902(2) indicates that domestic public docu-
ments that are not under seal will be self-authenticating only
if they bear the purported signature of a governmental officer
acting "in the official capacity of [such] an officer" and that
signature is certified under seal by a governmental officer
who attests that "the signer has the official capacity." Fed. R.
Evid. 902(2). Because Rule 902 clearly indicates when a doc-
ument must be executed by a governmental officer acting in
his or her "official capacity" in subsection 2 but does not indi-
cate as much in the prior subsection, subsection 1 must not
require any extrinsic evidence that the purported attestation
made thereunder be by someone acting in his or her "official
capacity." Hence, Joy's lack of authority under the provisions
relied upon by Mateo cannot defeat the self-authentication of
her CNER under Rule 902(1). The same conclusion is reached
by contrasting the lack of any requirement for official capac-
ity or authority in subsection 1 with subsection 4, which stipu-
lates that certifications of copies of public records must be
made by the actual custodian of the originals "or other person
authorized to make certification." Fed. R. Evid. 902(4).

The result of this conclusion is that the provisions upon
which Mateo relies are irrelevant in this context. Whereas sec-
tion 1360(d) specifically provides for the admissibility of doc-
uments such as CNERs only if they are "signed by the
Attorney General or by any officer of the [INS ] designated by
the Attorney General to make such certification, " 8 U.S.C.
S 1360(d), the same documents are admissible under Rule
902(1) regardless of whether they are signed by the Attorney
General or his designate. Such was the intended effect of Rule
902(1), which was meant to generalize and to supersede, see
28 U.S.C. S 2072(b), the "[m]ore than 50 provisions for judi-
cial notice of official seals [that were] contained in the United
States Code" when the rule was promulgated in 1972. Fed. R.
Evid. 902 advisory committee's note to paragraph (1) (1972
Proposed Rules).

Because the CNER at issue in this case satisfied the two
criteria required on the face of Rule 902(1), the district court


properly ruled that the CNER was self-authenticating and
admitted the document into evidence. We must therefore
reject Mateo's claim that there was insufficient evidence to
support his conviction for illegal reentry.


[7] Mateo also argues that the district court erred in not
awarding another one-level downward departure under
U.S.S.G. S 3E1.1(b) for acceptance of responsibility. Subsec-
tion (a) calls for a two-level reduction "[i]f the defendant
clearly demonstrates acceptance of responsibility for his
offense." U.S.S.G. S 3E1.1(a). Subsection (b) requires another
one-level downward departure beyond that given under sub-
section (a) if "the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by taking
one or more of the following steps: (1) timely providing com-
plete information to the government concerning his own
involvement in the offense." U.S.S.G. S 3E1.1(b).

We agree with Mateo that the reasons cited by the court for
the two-level reduction under subsection (a) satisfy the
criteria for the additional one-level reduction under U.S.S.G.
S 3E1.1(b)(1). The court stated:

      [Y]ou can give a minus two if the defendant timely
      provides complete information to the Government
      concerning his own involvement in the offense. I
      believe he did that, so I'll give him a minus two.

We have held before that a defendant's entitlement to a third
point under U.S.S.G. S 3E1.1(b) depends only on "whether
the confession was complete and timely." Blanco-Gallegos,
_______ F.3d at _______.

The government thus correctly concedes that the district
court erred in denying the downward departure under
U.S.S.G. S 3E1.1(b)(1). Nevertheless, the government argues


that we should remand Mateo's case for sentencing anew in
light of the "somewhat ambiguous nature of the record." The
government does not specify what is "somewhat ambiguous"
about the record, and the district court's factual findings on
the timeliness and completeness of Mateo's confession are
unequivocal. There is thus no basis for resentencing anew.
See id.; United States v. Stoops, 25 F.3d 820, 823 (9th Cir.

[8] Because the district court plainly found that Mateo's
confession was both timely and complete, we reverse the
court's denial of an additional one-level reduction pursuant to
U.S.S.G. S 3E1.1(b)(1).

AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings not inconsistent with
this opinion.



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