NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50121

Plaintiff-Appellee, D.C. No. 3:17-cr-00412-LAB-1 v.

LUIS MIGUEL CERDA-RAMIREZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted March 9, 2018 Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,** District Judge.

Luis Miguel Cerda-Ramirez was charged with felony illegal entry in

violation of 8 U.S.C. § 1325, in the Southern District of California in February

2017. Following trial, a jury found Cerda-Ramirez guilty of the lesser-included

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. misdemeanor illegal entry offense. At trial, the government introduced as evidence

four documents related to a separate case from the Middle District of Florida

concerning one Luis Miguel Cerda-Ramirez. The parties contested whether the

defendant in the Florida case and the defendant in the present case were the same

person. The four disputed documents from the Florida case were: (1) the criminal

complaint and accompanying affidavit; (2) the guilty plea transcript; (3) the

judgment; and (4) a document entitled USM-129, which contained biographical

information about the defendant in the Florida case. The district court admitted the

first three documents under the judicial notice doctrine. The district court did not

specify the basis on which it admitted the USM-129 document.

On appeal, Cerda-Ramirez challenges the district court’s use of the judicial

notice doctrine in this case. He asserts the district court admitted all documents

through judicial notice because the district court offered no other express basis for

admitting the USM-129. Cerda-Ramirez contends the district court erred in

admitting the documents because they are not judicially noticeable, do not meet

any hearsay exception, and two of the documents violate the Confrontation Clause.

Further, Cerda-Ramirez argues that the district court’s errors were not harmless.

Lastly, he asserts the district court erred by failing to instruct the jury pursuant to

Federal Rule of Evidence 201(f), which would have explained that the jury did not

have to consider judicially noticed facts as conclusive. We have jurisdiction

2 pursuant to 28 U.S.C. §§ 1291 and 1294. Although the district court erred in

admitting three of the documents under the judicial notice doctrine and by not

instructing the jury under Rule 201(f), for the reasons detailed below, we affirm.

1. We review the district court’s decision to take judicial notice of the

contested documents for abuse of discretion but reverse only where a district

court’s error more likely than not affects the verdict. United States v. Chapel, 41

F.3d 1338, 1342 (9th Cir. 1994); see also United States v. Chang Da Liu, 538 F.3d

1078, 1085 (9th Cir. 2008) (a “district court’s decision to admit or exclude

evidence . . . will be reversed only if the error more likely than not affected the

verdict.”). However, where the district court admits evidence on an incorrect basis

but the evidence is nevertheless admissible for a different reason, no reversible

error occurs. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th

Cir. 1997).

2. The district court improperly took judicial notice of the criminal

complaint and accompanying affidavit from the Florida case because courts cannot

take judicial notice of facts subject to reasonable dispute. See Lee v. City of Los

Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001). Here, the complaint and affidavit

contain facts subject to reasonable dispute, including whether the defendant in the

Florida case and the defendant in the present case were the same person.

Further, the criminal complaint and accompanying affidavit were

3 inadmissible under Fed. R. Evid. 803(8) because they are adversarial documents.

Cf. Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) (noting that

prosecutors filing criminal complaints exercise “independent judgment in

determining that probable cause for an accused’s arrest exists.” This indicates that

criminal complaints are adversarial documents because prosecutors must support

their accusations with probable cause.) (citation omitted). Pursuant to Rule 803(8),

“a record or statement of a public office” is admissible if, as relevant here, “it sets

out a matter observed while under a legal duty to report, but not including, in a

criminal case, a matter observed by law-enforcement personnel” and “the opponent

does not show that the source of information or other circumstances indicate a lack

of trustworthiness.” Fed. R. Evid. 803(8)(A)(ii), (B). However, “the purpose of the

law enforcement exception is to exclude . . . observations made in an adversarial

setting.” United States v. Fryberg, 854 F.3d 1126, 1132 (9th Cir. 2017) (citations

and internal quotation marks omitted) (emphasis in original). Here, the government

points to no authority where a court has admitted a criminal complaint and

supporting affidavit under the public record exception to the hearsay rule.

Moreover, the complaint and affidavit are testimonial and their admission

would violate the Confrontation Clause because Cerda-Ramirez was not able to

cross-examine the person who prepared the documents. See Crawford v.

Washington, 541 U.S. 36, 51, 59 (2004). Therefore, the district court abused its

4 discretion in admitting the criminal complaint and accompanying affidavit. See

United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).

3. The district court improperly took judicial notice of the guilty plea

transcript from the Florida case because courts cannot take judicial notice of facts

subject to reasonable dispute. See Lee, 250 F.3d at 689–90. Here, the transcript

contains facts subject to reasonable dispute, particularly whether the defendant in

the Florida case and the defendant in the present case were the same person.

Moreover, the government’s argument that the plea transcript is admissible under

the public record exception to the hearsay rule pursuant to Rule 803(8) is

unavailing. The only authority the government cites to support this contention,

United States v. Arias, 575 F.2d 253 (9th Cir. 1978), does not support the

government’s position because the transcript cannot be used to prove the truth of a

matter asserted during the transcribed proceeding. Arias, 575 F.2d at 254 n.1

(citing Wong Wing Foo v. McGrath, 196 F.2d 120, 123 (9th Cir. 1952) (holding

“that a transcript of a former proceeding is not admissible under the government

records exception to prove the truth of matters asserted by a witness quoted

therein.”)). Accordingly, the district court abused its discretion in admitting the

plea transcript because it is not a public record. See Hinkson, 585 F.3d at 1251.

4. The district court improperly took judicial notice of the judgment

from the Florida case because courts cannot take judicial notice of facts subject to

5 reasonable dispute. See Lee, 250 F.3d at 689–90. The government argues the

district court properly admitted the judgment under Fed. R. Evid. 803(22).

However, because the parties contested at trial whether the person sentenced in the

Florida case was in fact the defendant in the present case, the judgment does not

meet Rule 803(22)(D)’s requirement that “when [a judgment is] offered by the

prosecutor in a criminal case for a purpose other than impeachment, the judgment

was against the defendant.” Here, again, it is unclear that the “Luis Miguel Cerda-

Ramirez” named in the judgment is in fact the same person as the defendant in the

present case as the parties contested that issue at trial and Rule 803(22)(D) requires

that a judgment from a previous conviction be a judgment against the same

defendant. Therefore, the district court abused its discretion in admitting the

judgment from the Florida case.

5. The record does not reflect that the district court took judicial notice

of the USM-129. Indeed, the district court did not specify the basis on which it

admitted the USM-129. Nevertheless, the district court properly admitted the

USM-129 because the USM-129 is a public record admissible under Rule 803(8).

Routine, non-adversarial records prepared by law enforcement personnel, such as

the USM-129, are admissible. Fryberg, 854 F.3d at 1132. The USM-129 contains

biographical information. Moreover, nothing in the USM-129 suggests that this

document is adversarial in nature. Therefore, the USM-129 was admissible under

6 Rule 803(8) and the district court did not commit reversible error. See Loyola-

Dominguez, 125 F.3d at 1318.

6. Even though the district court abused its discretion in admitting the

complaint and accompanying affidavit, the plea transcript, and the judgment from

the Florida case, the errors were harmless. Cerda-Ramirez was convicted of

misdemeanor illegal entry under 8 U.S.C. § 1325. This means the government had

to prove beyond a reasonable doubt that Cerda-Ramirez was (1) an alien (2) who

knowingly entered the United States (3) at a nondesignated entry point. 8 U.S.C.

§ 1325; cf. United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984)

(listing the elements for felony illegal entry, which includes an additional element

as compared to misdemeanor illegal entry—the defendant must have previously

been convicted of illegal entry). At trial, Cerda-Ramirez did not contest alienage

because Cerda-Ramirez admitted that he is a Mexican citizen. Further, the

government presented: (1) circumstantial evidence that Cerda-Ramirez entered the

United States by scaling a fence and direct evidence that he thereafter hid from the

Border Patrol; (2) Cerda-Ramirez admitted to a Border Patrol agent during a

videotaped interview that he was born in Mexico and the tape was played to the

jury; and (3) Cerda-Ramirez separately admitted to his arresting Border Patrol

officer that he is a Mexican national. Taken together, the evidence sufficiently

corroborates Cerda-Ramirez’s admission that he is a Mexican national. See United

7 States v. Nunez-Beltran, 434 F. App’x 640, 642 (9th Cir. 2011). Accordingly, the

record supports the jury’s guilty verdict and the district court’s errors in admitting

the contested documents were harmless. See United States v. Pena-Gutierrez, 222

F.3d 1080, 1089 (9th Cir. 2000). Further, the jury convicted Cerda-Ramirez only

on the lesser-included misdemeanor offense, not the felony charge. Thus, whether

Cerda-Ramirez was the same individual convicted in the Florida case ultimately

has no bearing on the verdict in this case.

7. The district court erred by failing to instruct the jury that the jury did

not have to accept the judicially noticed facts as conclusive pursuant to Fed. R.

Evid. 201(f). See Chapel, 41 F.3d at 1342. We review this error for plain error

under the following four-part test: (1) there must be error; (2) it must be plain; (3)

the error affects substantial rights; and (4) the error seriously affects the fairness,

integrity or public reputation of judicial proceedings. See United States v. Perez,

116 F.3d 840, 845–46 (9th Cir. 1997) (en banc) (citations omitted). The first two

factors are met because it is undisputed that the district court failed to give the Rule

201(f) instruction. Id. at 846; Chapel, 41 F.3d at 1342. However, for the reasons

detailed above, the district court’s error was not prejudicial1, see Perez, 116 F.3d at

1 The Supreme Court has explained that an error affecting substantial rights “in most cases [] means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” See United States v. Olano, 507

U.S. 725, 734 (1993).

8 847, and the district court’s error does not meet the fourth factor. See Olano, 507

U.S. at 727, 737, 741 (holding that though it was a violation of Fed. R. Evid. 24(c)

for alternate jurors to be present during jury deliberations, the error did not

constitute plain error because it did not affect substantial rights and the Ninth

Circuit had no authority to correct it). Accordingly, the district court did not plainly

err by failing to instruct the jury pursuant to Fed. R. Evid. 201(f).

AFFIRMED.

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