                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50192

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00761-GAF-1

  v.
                                                 MEMORANDUM*
ALFREDO VILLEGAS ALVAREZ, AKA
Alfredo Villegas, AKA Alfredo Villegas-
Alvarez,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                        Argued and Submitted May 16, 2014
                               Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges, and TIGAR, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
      Alfredo Villegas Alvarez (“Villegas”) appeals from his conviction following

a jury trial on one count of being an illegal alien found in the United States

following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1. Villegas argues that the district court erred in admitting an alleged

Mexican birth certificate found in his certified A-file because the document is

hearsay and lacks sufficient authenticity under Rule 901 of the Federal Rules of

Evidence. We need not address Villegas’s argument because, even assuming the

district court erred in admitting the document, any such error was harmless in light

of the overwhelming evidence that Villegas is a native and citizen of Mexico.

United States v. Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (“An error is harmless

if it is more probable than not that the error did not materially affect the verdict.”

(internal quotation marks omitted)).

      In addition to the disputed Mexican birth certificate, the government

introduced the following: Villegas’s admission during his 1997 deportation

proceedings and in statements made to immigration officers that he was a native

and citizen of Mexico; the multiple warrants of removals and deportation

verification that indicated that Mexico was the country to which he should be

removed; his statement during his most recent arrest in June 2012 that he was a


                                            2
citizen and national of Mexico; and his testimony at trial, on both direct and cross-

examination, that he had previously told authorities on prior occasions that he was

born in Mexico, and that he would not have signed a sworn statement to that effect

if that had not been true. See United States v. Ramirez-Cortez, 213 F.3d 1149,

1158 (9th Cir. 2000) (recognizing that neither a deportation order nor the

defendant’s own admissions, standing alone, would support the conclusion that the

defendant was an alien, but concluding that a rational trier of fact could find

“beyond a reasonable doubt” that the defendant was an alien based on his prior

deportation order, admissions he made in his underlying deportation proceeding,

and an INS agent’s testimony that his review of the defendant’s immigration

records reflected that the defendant was an alien).

       2. The district court did not abuse its discretion in excluding the testimony

and birth certificates of defense counsel’s brother-in-law under Rule 401 of the

Federal Rules of Evidence. The ability of a third-party to obtain a fake birth

certificate in Mexico was not relevant to the issue of whether Villegas’s own

Mexican birth certificate was authentic. And, any relationship between Villegas’s

birth certificate and a third-party’s ability to obtain a fake birth certificate in

Mexico was purely speculative. Further, in order for these birth certificates to have

some relevance, defense counsel’s brother-in-law would have had to testify to the


                                             3
hearsay statements of his father. Villegas does not offer any applicable exception

to the hearsay rule, and we see none. Even if Villegas’s proffered evidence had

some relevance, it nevertheless may be properly excluded under Rule 403 of the

Federal Rules of Evidence, because admission of a third-party birth certificate

would have confused the jury and created a mini-trial. Moreover, even if the

district court erred in failing to admit the proffered birth certificates, any such error

was harmless in light of the overwhelming evidence of Villegas’s alienage

discussed above.

      3. Villegas contends that the district court committed constitutional error by

excluding the birth certificates of defense counsel’s brother-in-law because the

ruling deprived him of an opportunity to present a complete defense. We disagree.

Not only were the documents inadmissible, Villegas in fact had an opportunity to

present a complete defense—he extensively cross-examined Officer Oki regarding

the authenticity and accuracy of the disputed birth certificate, and he testified on

his own behalf regarding his alienage.

      AFFIRMED.




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