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United States v. Clarke

July 2, 2009

UNITED STATES OF AMERICA,
v.
ZION CLARKE, RICARDO DEFOUR, KEVON DEMERIEUX, ANDERSON STRAKER, WAYNE PIERRE, CHRISTOPHER SEALEY, AND KEVIN NIXON, DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Prior to trial, defendants sought dismissal of this case based on the contention that this Court lacks jurisdiction over the hostage taking offenses charged because the victim, Balram Maharaj, although possessing a certificate of naturalization and U.S. passport at the time of the offenses, allegedly was not qualified for U.S. citizenship when he was naturalized, rendering his citizenship void ab initio. The Court denied that motion, holding that "[8 U.S.C.] § 1451 sets forth the exclusive process for declaring the citizenship of a naturalized person void and one's citizenship remains valid until an order setting aside citizenship has been issued in compliance with § 1451," and further that, in the absence of a revocation order, Maharaj's "certificate of naturalization and U.S. passport conclusively establish that he was, until his death, a citizen of the United States." Memorandum Opinion at 12-13 (filed May 8, 2009) ("Mem. Op."). Hence, the Court also granted the government's motion for an order in limine precluding the defendants from introducing evidence at trial on the matter of whether Balram Maharaj was qualified to become a U.S. citizen. Id. at 18-21.

Defendant Clarke now moves for reconsideration of that decision, on the grounds that the certificate of naturalization and passports are inadmissible hearsay and, furthermore, that the passports are invalid. He argues, in particular, that the Court's admission of those documents into evidence under the public records exception, Fed. R. Evid. 803(8), was incorrect. He requests, in the alternative, leave to introduce Maharaj's immigration file -- the "A File" -- to show that those documents are unreliable because Maharaj was not eligible for U.S. citizenship. Defendant DeFour separately moves for reconsideration of the Court's ruling precluding defendants from introducing evidence challenging Maharaj's qualifications to become a U.S. citizen. For the reasons stated below, the Court will deny the motions.*fn1

I. Certificate of Naturalization

Clarke contends that the certificate of naturalization (GX 303-F) is hearsay because it is offered to prove the truth of the matter asserted -- that Maharaj was a U.S. citizen -- but fails to qualify for the public records exception under any of the three categories set forth in Fed. R. Evid. 803(8). See Clarke's Mem. at 3-15. In response, the government contends that the certificate of naturalization is not hearsay under Fed. R. Evid. 801 because it is offered only to show the legal relationship of the parties (i.e., that the United States granted Maharaj U.S. citizenship), in contrast to the truth of the matter asserted therein (i.e., that Maharaj, in fact, satisfied all of the qualifications for U.S. citizenship). Gov't's Opp'n at 11. The government also contends that, even if the certificate is hearsay, it is admissible, inter alia, as a public record setting forth the activities of the agency.

Before examining the terms of Rules 801 and 803(8), the Court pauses to assess other statutory provisions and case law on the admissibility of certificates of naturalization in district court proceedings. Prior to November 29, 1990, naturalization petitions were submitted for adjudication by a court and, hence, the culmination of a proceeding for judicial naturalization was a decree of the court and the issuance of a certificate of naturalization to the successful petitioner. See generally 7 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure, § 99.03 (Matthew Bender, rev. ed. 2008) ("Immigration Law and Procedure"). The naturalization certificate and underlying judgment were considered by courts to be "complete evidence" -- indeed, "conclusive evidence" -- of the citizenship of one who goes through naturalization proceedings. See Tutun v. United States, 270 U.S. 568, 577 (1926) ("The judgment [granting a naturalization petition]..., like other judgments of a court record, is accepted as complete evidence of its own validity unless set aside. It may not be collaterally attacked."); accord Magnuson v. Baker, 911 F.2d 330, 333 n.6 (9th Cir. 1990) ("As a record of a final court decision, a certificate [of naturalization] is conclusive evidence of the court's determination of the litigated issue i.e., citizenship."); In re Mendiola, 647 F. Supp. 839, 842 (S.D.N.Y. 1986) ("A court issues such a certificate only after having entered an order which establishes the person's citizenship," which is "complete evidence of its own validity unless set aside."); In re Olanoff, 44 F.2d 188, 189 (E.D. Pa. 1930) ("the naturalization certificate is the best evidence [of citizenship] under the acts of Congress").

With that background, Congress enacted 8 U.S.C. § 1443(e), which provides that certificates of naturalization issued by the Attorney General shall have the same effect in court as the judicial orders of naturalization. This provision states: "A certificate of naturalization... issued by the Attorney General under the authority of this subchapter shall have the same effect in all courts, tribunals, and public offices of the United States, at home and abroad,... as a certificate of naturalization or of citizenship issued by a court having naturalization jurisdiction." Hence, certificates of naturalization issued by the Attorney General also are considered by courts as "conclusive evidence" of citizenship. See Magnuson, 911 F.2d at 333 & n.6; see also 7 Immigration Law and Procedure § 99.04[4] ("Like a court decree, the certificate of citizenship issued by the Attorney General is not subject to collateral impeachment, and unless it is cancelled... it must be accepted as establishing the title to citizenship of the person to whom it is issued."). It is odd, then, for defendants to posit that certificates of naturalization are not admissible to prove citizenship on the ground that they are hearsay not falling within any exception to the hearsay rule. Indeed, Clarke and his co-defendants fail to cite any cases holding a certificate of naturalization inadmissible to prove citizenship.

The line of cases recognizing certificates of naturalization as "complete" and "conclusive" evidence of citizenship, and the clear language of § 1443(e), providing for their admissibility in courts of the United States, lead to the inescapable conclusion that, to the extent Rules 801 through 803 are inconsistent with 8 U.S.C. § 1443(e), the more specific provision -- § 1443(e) --governs and requires that the certificate of naturalization be admitted into evidence. See Fed. R. Evid. 802 ("Hearsay is not admissible except as provided by these rules... or by Act of Congress"). But the Court has also determined that there is no inconsistency between § 1443(e) and the rules governing hearsay, for, as explained below, the certificate of naturalization is admissible as a public record setting forth the activities of a federal agency (i.e., the Immigration and Naturalization Service).

As a threshold matter, the Court observes that the certificate of naturalization is necessarily hearsay, contrary to the government's contention that it is only a legally operative verbal act offered to prove a legal relationship. Rule 801 defines hearsay as an out-of-court statement offered in evidence "to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Here, the certificate is offered to prove the truth of two key assertions stated therein -- that Maharaj took "the oath of allegiance" necessary to become a United States citizen and was duly "admitted as a citizen of the United States of America." GX 303-F. If the oath of allegiance were not necessary to establish the legal relationship at issue -- that is, Maharaj's legal status as a U.S. citizen -- the government might have prevailed on its non-hearsay argument. See United States v. Bellucci, 995 F.2d 157, 160-61 (9th Cir. 1993) (holding that, where a document is admitted to prove only the occurrence of a legally significant event -- there, the issuance of an FDIC insurance certificate to prove the federally insured status of a bank -- rather than the findings contained in the document, it is not hearsay). However, as Clarke notes (see Reply at 11), 8 C.F.R. § 337.9 provides that the naturalization is not effective until the citizen has taken the oath -- and the fulfillment of that requirement is stated on the face of Maharaj's naturalization certificate. Hence, the certificate is being used in this trial for the truth of the matter asserted, and is therefore hearsay.

But the status of the certificate of naturalization as hearsay does not preclude its admission, for it readily fits within the public records exception. Rule 803(8) provides a hearsay exception for:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Clarke devotes much of his brief to arguing that the certificate fails to qualify under subsection (B) because it describes matters that were not "observed" by the declarant, and fails under subsection (C) because the certificate contains "factual findings resulting from an investigation" but is impermissibly submitted by the government in this criminal case and lacks circumstances indicating trustworthiness. See Clarke's Mem. at 5-19; Clarke's Reply at 7-10. But he has offered no persuasive argument rebutting the government's contention that the certificate falls within subsection (A) for records "setting forth... the activities of the office or agency."

The government contends that the certificate of naturalization is a record of the Immigration and Naturalization Service ("INS," now the Citizenship and Immigration Services, "CIS") with respect to "making determinations as to and granting certificates of naturalization." Gov't's Opp'n at 10. Clarke's only rebuttal to this is the conclusory assertion that the certificate does not describe "activities" of the agency and that this exception is limited to "routine" activities such as the recording of receipts or pension records. Clarke's Reply at 6-7. The Court need only examine the face of the certificate of naturalization to see that it sets forth an "activit[y] of the office or agency" -- that is, the granting of a petition for naturalization by the Attorney General, a regular activity exercised by the agency. See 8 U.S.C. § 1421 ("The sole authority to naturalize persons as citizens of the United State is conferred upon the Attorney General."); Magnuson, 911 F.2d at 333 (discussing Attorney General's authority to act on petitions for naturalization).

Furthermore, the guarantee of accuracy of public records admissible under subsection (A) "rests upon an official duty, i.e., a duty imposed by law upon a public official, to make an accurate record," rather than on whether the activity is sufficiently "routine." See Michael H. Graham, 30B Federal Practice & Procedure: Evidence ยง 7049 (interim ed. 2006). Here, the statute clearly reflects the responsibility of the Attorney General (and his designees) over the activity at issue -- the granting of petitions for naturalization -- and it is generally recognized, in any event, that this is a regular activity of his agency. Indeed, this Circuit has recognized that a census "register" that reported residents' alien status was admissible as an "official" record based on a legal duty to collect the information. See Doto v. United States, ...


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