United States v. Napoleon Bustamante

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge MENDEZ.

OPINION

Napoleon Arturo Bustamante appeals his convictions for illegal reentry in violation of 8 U.S.C. § 1326 , making a false statement in a passport application in violation of 18 U.S.C. § 1542 , and making a false statement in an application for supplemental security income benefits in violation of 42 U.S.C. § 1383a(a)(l). These convictions rested on the government’s allegation that Bustamante is not a United States citizen. To prove that allegation, the government introduced a document appearing to be a transcription of Bustamante’s birth certificate from the Philippines. We conclude that the introduction of this document violated Bustamante’s rights under the Confrontation Clause of the Sixth Amendment. Because this error was not harmless beyond a reasonable doubt, we vacate Bustamante’s convictions and remand for a new trial.

I.

Bustamante lived in the United States for many years and on many occasions held himself out as a natural-born U.S. citizen. He possessed a U.S. passport and a delayed registration of birth from California stating that he was bom in Stockton, California on…

concurring in part and dissenting in part:

I concur with the majority’s conclusion that the government’s Exhibit 1 was testimonial in nature and therefore admitted in error because Bustamante did not have the opportunity to cross-examine the individual who prepared the summary of Bustamante’s purported birth record. I respectfully dissent because I believe that the Government met its burden of showing that the admission of Exhibit 1 was harmless beyond a reasonable doubt, making reversal and remand to the district court unnecessary.

“The prosecution bears the burden of proving [that an admission of evidence in violation of the Confrontation Clause] was harmless beyond a reasonable doubt.” United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 675 (9th Cir.2009) (citing United States v. Gillam, 167 F.3d 1273, 1277 (9th Cir.1999)). “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). This court examines a variety of factors to determine if an…

introduction of this document violated Bustamante’s rights under the Confrontation Clause of the Sixth Amendment. Because this error was not harmless beyond a reasonable doubt, we vacate Bustamante’s convictions and remand for a new trial.

I.

Bustamante lived in the United States for many years and on many occasions held himself out as a natural-born U.S. cit- UNITED STATES v. BUSTAMANTE 8867 izen. He possessed a U.S. passport and a delayed registration of birth from California stating that he was born in Stockton, California on February 1, 1945. While Bustamante was serv- ing in the Air Force in the 1970s, the Air Force became con- cerned about Bustamante’s claim of citizenship and began an investigation in 1973. The investigation determined that the evidence of Bustamante’s citizenship was inconclusive, and he was honorably discharged in 1976. The government then initiated immigration proceedings against Bustamante, but those proceedings were dismissed.

Bustamante continued living and working in the United States until 2006, when he was arrested for writing counterfeit checks. The investigation after his arrest found that he had been born in the Philippines and…