                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 08 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 10-10203

              Plaintiff - Appellee,              D.C. No. 2:09-cr-50137-ROS-1

  v.
                                                 MEMORANDUM*
ADOLFO ESTRELLA-YUAN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                       No. 10-10184

              Plaintiff - Appellee,             D.C. No. 2:09-cr-01005-ROS-1

  v.

ADOLFO ESTRELLA-YUAN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Arizona
                 Roslyn O. Silver, Chief District Judge, Presiding

                        Argued and Submitted May 9, 2011
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**

      Defendant Adolfo Estrella-Yuan appeals his conviction by a jury of entering

the United States without permission of the Attorney General after being excluded,

deported, or removed from the United States in violation of 8 U.S.C. § 1326. He

also appeals the district court’s revocation of his supervised release. We have

jurisdiction under 28 U.S.C. § 1291. We affirm Estrella-Yuan’s conviction and the

revocation of his supervised release.

      Estrella-Yuan challenges his conviction on three grounds: (1) erroneous

admission of the I-205/Warrant of Deportation as a public record under Federal

Rule of Evidence 803(8); (2) insufficiency of the evidence; and (3) erroneous

admission of unduly prejudicial, cumulative, and confusing evidence of prior

deportations and illegal reentries in violation of Federal Rule of Evidence 403.

      First, the district court did not abuse its discretion when admitting the I-205

as a public record. A warrant of deportation is hearsay, but it is well established

that the document is admissible under the public records exception because “the

notation on an I-205 form indicating that an alien has left the country is a routine,

objective, indeed mechanical recording of an unambiguous factual matter.” United


       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
                                           2
States v. Contreras, 63 F.3d 852, 857 (9th Cir. 1995). In this case, however, the

Immigration and Customs Enforcement agents testified that protocol was not

followed in the production of the document. As a result, the district court required

additional foundation before the document was admitted. See United States v.

Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) (stating that documents

that fall under the public records exception are presumed trustworthy, and the

opponent of the record bears the burden of establishing untrustworthiness). The

agents testified that the purpose of a warrant of deportation is to provide the alien

with notice of his or her deportation and to record that the deportation has

occurred. See United States v. Mendez-Casillas, 272 F.3d 1199, 1204 (9th Cir.

2001). Here, this purpose was satisfied: the agents stated that they would not have

signed the form if they had not verified, through standard deportation procedures,

that Estrella-Yuan had been deported. Additional evidence at trial supported their

testimony. Accordingly, the district court properly found that Estrella-Yuan did

not carry his burden of proving untrustworthiness, and did not abuse its discretion

in admitting the I-205 under Rule 803(8).

      Second, the evidence the government introduced was sufficient to show that

Estrella-Yuan was removed from the country in January 2007, as charged in the

indictment. The I-216 manifest showed that he was transferred on a government-


                                           3
charted plane from Chicago to El Paso. The I-205 warrant of deportation verified

his removal. Furthermore, the testimony from Agents Renteria and Vasquez

supports the jury’s finding that Estrella-Yuan was removed from the United States.

They testified that an individual got off the government-chartered plane and

responded to the name “Estrella-Yuan” during the roll call, accepted the property

of Estrella-Yuan before crossing the border, and was accompanied by an I-205

containing his name, photograph, signature, and fingerprint. Construing this

evidence in the government’s favor, a rational jury could conclude beyond a

reasonable doubt that Estrella-Yuan was deported on January 26, 2007 at El Paso,

Texas. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en

banc).

         Third, the district court abused its discretion when it admitted evidence of

Estrella-Yuan’s prior reentries and deportations. The government offered evidence

from several prior reentries and deportations to support the inference that he had

entered the United States in July 2009 knowingly and voluntarily.1 But the


         1
        This evidence consisted of Agent Sanchez’s testimony regarding his
database search of prior removals and illegal reentries between 1990-1994, as well
as the following documents: (1) warning of impending deportation dated
November 21, 1990; (2) I-205/Warrant of Deportation dated November 21, 1990;
(3) immigration judge’s determination of eligibility for deportation dated
November 27, 1991; and (4) Notice of Intent/Decision to Reinstate a Prior Order of
deportation dated June 7, 2004.
                                            4
government did not need to rely on these prior offenses to establish the knowing

and voluntary element of the charged offense. Nor was the evidence necessary to

prove alienage, or to provide examples of Estrella-Yuan’s handwriting, signature,

and fingerprints. Accordingly, the large number of additional reentries and

deportations increased the risk of unfair prejudice to the defendant, and was of

little probative value to the government’s case. See United States v. Weiland, 420

F.3d 1062, 1078 (9th Cir. 2005). This evidence should have been redacted under

Federal Rule of Evidence 403. Additionally, the court should have excluded the

January 2007 Warning to Alien Ordered Removed or Deported under Rule 403.

Nevertheless, these errors were harmless because of the district court’s limiting

instructions and the strong evidence of the defendant’s guilt. It is “clear beyond a

reasonable doubt that a rational jury would have found the defendant guilty absent

the error.” Neder v. United States, 527 U.S. 1, 3 (1999).

      We affirm the criminal conviction. As the revocation of the supervised

release was based on this conviction, we affirm the revocation of the supervised

release.

      AFFIRMED.




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