United States v. Octavio Hermoso-Garcia

MEMORANDUM

Octavio Hermoso-Garcia (“Hermoso-Garcia”) appeals from his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326 .

Hermoso-Garcia contends the district court abused its discretion by admitting into evidence several documents related to his prior removals. We have held that the Certificate of Non-Existence of Record (“CNR”) is testimonial, so admitting it without an opportunity to cross-examine the declarant violates the Confrontation Clause. See United States v. Orozco-Acosta, 607 F.3d 1156 , 1160-61 & n. 2 (9th Cir.2010).

In this case, however, the government called Officer Rudolfo Rodriguez, who testified as to the purpose of the form, the standard procedure for searching computer records, and the supervisor’s backup verification mechanism. Rodriguez testified that he personally checked Hermoso-Garcia’s “A-file” and confirmed that it contained no evidence that the defendant had permission to apply for readmission. His testimony materially corroborated the CNR. The defense used its opportunity to cross-examine Rodriguez, sowing a suggestion that Hermoso-Garcia might have a second A-file. There was no factual indication, however, that the…