Gualajara-Ponce

MEMORANDUM *

Appellant Gildardo Alberto Gualajara-Ponce appeals his conviction for one count of attempted entry into the United States after deportation, in violation of 8 U.S.C. § 1326 . We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand.

The district court abused its discretion by admitting into evidence over a hearsay objection a referral slip to secondary inspection at a port of entry. The Government proffered the slip to prove the truth of an implicit assertion therein — that Gualajara-Ponce, at primary inspection, had claimed to be an American citizen. See Fed.R.Evid. 801(c).

The Government argues the slip was admissible either as a non-hearsay, prior consistent statement 1 or as a public record excepted from the hearsay rule. 2 We disagree. The referral slip was not admissible as a prior consistent statement because the defense did not express or imply that Officer Pete Florendo had fabricated his testimony; rather, the defense merely contradicted Florendo’s testimony and argued he had incorrectly heard what Gualajara-Ponce had said. See United States v. Bao, 189 F.3d 860, 865 (9th Cir. 1999). In addition, the slip is explicitly excluded from the…