                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 09 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50604

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00864-JM-1

  v.
                                                 MEMORANDUM *
LUIS MIGUEL DIAZ-LOPEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                           Submitted August 31, 2010 **
                              Pasadena, California

Before: O’SCANNLAIN, GOULD and M. SMITH, Circuit Judges.

       Luis Diaz-Lopez appeals his conviction for being a removed alien found in

the United States without permission. See 8 U.S.C. § 1326(a). We have




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the facts are known

to the parties, we repeat them only as necessary to explain our decision.

       Diaz argues that admission of certain documents violated the Confrontation

Clause and the hearsay rule found in Federal Rule of Evidence 802.1 We review

alleged violations of the Confrontation Clause de novo. United States v. Nguyen,

565 F.3d 668, 673 (9th Cir. 2009). We review for abuse of discretion a district

court’s decision to admit evidence under an exception to the hearsay rule. United

States v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002).

      Diaz challenges admission of a warrant of removal. We have squarely held

that admission of a warrant of removal does not violate the Confrontation Clause

because it is not made in anticipation of litigation, and therefore is not testimonial.

United States v. Orozco-Acosta, 607 F.3d 1156, 1163 (9th Cir. 2010). It does not

matter that the contents of the first page of the warrant have not been addressed

specifically by us because that page was not prepared in anticipation of litigation,

and was nontestimonial. See id.; see also United States v. Villavicencio-Burruel,

608 F.3d 556, 560–61 (9th Cir. 2010) (holding that admission of a warrant of



      1
             We address Diaz’s argument that admission of testimony regarding a
database search lacked foundation and violated the best evidence rule in a
simultaneously filed published opinion, which also affirms the district court’s
judgment.

                                           2
removability did not violate the Confrontation Clause). Also, admission of the

warrant did not violate the hearsay rule because it is admissible under the

exception for public records found in Rule 803(8). United States v. Loyola-

Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) (holding that case law “clearly

establishes that warrants of deportation are public records within the meaning of

Rule 803(8)”).

         Diaz contends that specific statements on the first page of the warrant are

inadmissible hearsay. We disagree. The challenged statements are “ministerial,

objective observation[s],” and the district court did not abuse its discretion by

admitting them. United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.

1980).

         Next, Diaz contends that the order of the immigration judge was

inadmissible. This order was not admitted in violation of the Confrontation Clause

because it was not testimonial. In United States v. Ballesteros-Selinger, we held

that an immigration judge’s memorandum of oral decision was not testimonial

because it was a public record “not made in anticipation of future litigation,” and

was “a standardized form that gives a record of the parties and decision at the

deportation hearing.” 454 F.3d 973, 975 (9th Cir. 2006). The order here shares the

same features as the memorandum in Ballesteros-Selinger, and is not testimonial.


                                            3
      Diaz also contends that the order was inadmissible hearsay because the

public records exception does not allow “factual findings resulting from

investigations conducted by public officers” to be introduced against criminal

defendants. See United States v. Sine, 493 F.3d 1021, 1036–37 (9th Cir. 2007).

The order, however, contained no factual findings or analysis. And it was not

hearsay because it was not introduced to prove the truth of the matter asserted. See

United States v. Boulware, 384 F.3d 794, 805–06 (9th Cir. 2004). Admission of

this order was not an abuse of discretion.

      On similar grounds, Diaz challenges admission of the warning to an alien

ordered removed. But, admission of the warning did not violate the Confrontation

Clause because it was not prepared in anticipation of litigation and was not

testimonial. It is a “standardized form” with no personalized content or factual

findings. See Ballesteros-Selinger, 454 F.3d at 975. Moreover, because this form

contains only “routine,” “ministerial, objective observation[s],” it is admissible

under the public records exception to the hearsay rule. Hernandez-Rojas, 617 F.2d

at 535.

      We also reject the Confrontation Clause challenge to admission of a

fingerprint card. The card contains only ministerial, objective observations. Like

the warning of removal in Orozco-Acosta, the fingerprint card was not created in


                                             4
anticipation of litigation and is not testimonial. See Orozco-Acosta, 607 F.3d at

1163. Diaz argues that the second page of the fingerprint card violated the hearsay

rule because it contained the findings of an investigation, but the second page is no

less admissible than the first. The ministerial, objective observations on the second

page have “‘inherent reliability because of the Government’s need to keep accurate

records of the movement of aliens.’” Id. (quoting Hernandez-Rojas, 617 F.2d at

535). The district court did not abuse its discretion by admitting the fingerprint

card in its entirety.

       Finally, Diaz challenges admission of an affidavit that was sworn to and

signed by him, contending that its admission violates both the Confrontation

Clause and the hearsay rule. We conclude that it violated neither. Diaz claims that

his signature on the affidavit does not show his adoption of the statement, that the

affidavit is rather a statement of the border patrol agent who questioned him, and

that, therefore, the border patrol agent should have testified in court. See United

States v. Orellana-Blanco, 294 F.3d at 1148. But Diaz did more than merely sign;

he added his initials to each page of the statement, said that he had read, or had

read to him, the statement, placed his fingerprint over the date, and stipulated that

the fingerprint matched his own. No evidence here undermines confidence in the

ordinary inference that Diaz adopted the signed statement.


                                           5
      In Orellana-Blanco, in circumstances quite different from those here, we

held that a person’s signature on an affidavit, under the circumstances of that case,

did not manifest adoption of that statement. Id. But there we considered evidence

that answers were not translated verbatim. Id. at 1147–49. We also considered

testimony that “established a considerable language barrier” and disputed some

responses on the form. Id. Moreover, in Orellana-Blanco, unlike here, the

interpreter was a third person who “wasn’t there for substantial portions of the

interview.” Id. at 1148. Orellana-Blanco states that “a signature would ordinarily

make adoption plain,” and that, under ordinary circumstances, “a signed statement,

even if written by another in another’s words, would be adopted as the party’s own

if he signed it, because signing is a manifestation of adopting the statement.” Id.

That is the case here. Because Diaz’s statement was given under ordinary

circumstances, it raises “no serious hearsay or confrontation clause problem.” Id.

AFFIRMED.




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