Argued and Submitted, San Francisco, California March
Appeal from the United States District Court for the Northern District of California. D.C. No. 5:11-cr-00749-LHK-1. Lucy Koh, District Judge, Presiding.
Karen L. Landau (argued), Oakland, California, for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney, Melinda Haag, United States Attorney, Barbara J. Valliere, Chief, Appellate Division, Department of Justice, San Francisco, California, for Plaintiff-Appellee.
Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Gordon J. Quist, Senior District Judge.[*]
GOULD, Circuit Judge
Luis Ruiz-Lopez, convicted of illegal reentry following deportation under 8 U.S.C. § 1326(a) and (b), seeks a judgment of acquittal. He claims that the government did not present evidence sufficient to prove his alienage beyond a reasonable doubt. Because we conclude that sufficient evidence supported the jury's finding of alienage, we affirm the district court's denial of a judgment of acquittal.
In December 2002, Ruiz-Lopez was interviewed in the Solano County Jail in Fairfield, California by Department of Homeland Security (" DHS" ) Agent Axel Sauter. From 1997 to 2002, Agent Sauter was assigned " to interview aliens encountered in the United States to determine their status," and he conducted about 600 interviews a year. Although not fluent in Spanish, Agent Sauter received Spanish lessons as part of his training and did " more than half" of his interviews at the
Solano County jail in Spanish. It was his " regular practice" to terminate the interview if language proved to be a barrier to communication. Agent Sauter conducted each interview the same way according to his " pattern and practice." He would take handwritten notes during the interview, and then type those notes and enter them onto a Record of Deportable/Inadmissible Alien form (" Form I-213" ) within a day. None of the information entered onto the Form I-213 was taken from state or federal indices or filled in before the interview, although Agent Sauter would look at such indices before an interview to confirm any relevant information.
Ruiz-Lopez was arrested in 2011 in Northern California. During Ruiz-Lopez's jury trial for illegal reentry, Agent Sauter testified that he could not remember Ruiz-Lopez, but Agent Sauter recognized his own signature and name on Ruiz-Lopez's Form I-213. The Form I-213 relating to Ruiz-Lopez was created following Agent Sauter's usual pattern and practice.
Agent Sauter testified that Ruiz-Lopez told him that: (1) he " was born in Zamora, Michoacan, Mexico" ; (2) in 1997, Ruiz-Lopez entered the United States near Nogales, Arizona, without inspection after having used the services of a " coyote," or smuggler, for the price of $800; and (3) his father and mother were both born in Mexico, but they were in the United States as lawful permanent residents. Ruiz-Lopez said that he did not fear persecution if he returned to Mexico, that he had no pending ...