United States v. Yitchak Ijo Perlmuter

693 F.2d 1290, 1982 U.S. App. LEXIS 23645, 12 Fed. R. Serv. 104
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 2, 1982
Docket81-1533X
StatusPublished
Cited by45 cases

This text of 693 F.2d 1290 (United States v. Yitchak Ijo Perlmuter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Yitchak Ijo Perlmuter, 693 F.2d 1290, 1982 U.S. App. LEXIS 23645, 12 Fed. R. Serv. 104 (9th Cir. 1982).

Opinions

NELSON, Circuit Judge:

After a court trial, appellant was found guilty of knowingly procuring naturalization contrary to law in violation of 18 U.S.C. § 1425(a) (1976). The indictment alleged that appellant misstated orally and on his Application to File Petition for Naturalization that he had not been convicted of any offenses other than traffic violations. An exhibit (Exhibit 4) was admitted into evidence, however, which indicated that appellant had been convicted of a number of offenses in Israel including (among others) perjury, assault, theft, and obtaining goods by false pretenses. Appellant was fined $5000 and sentenced to six months in prison. The trial court also cancelled appellant’s certificate of naturalization pursuant to 8 U.S.C. § 1451(g) (1976). Perlmuter appeals from the conviction and the cancellation of his certificate claiming that two exhibits (Exhibits 3 and 4) should not have been received into evidence. He contends that neither exhibit was properly authenticated and that Exhibit 4 was inadmissible hearsay, received into evidence in violation of the Federal Rules of Evidence (“FRE”) and the confrontation clause. We reverse.

I. FACTS

Appellant immigrated to the United States from Israel and was granted lawful permanent residence in 1968. In 1974, appellant was granted naturalization and became a United States citizen.

Gregory Ball, an examiner for the Immigration and Naturalization Service (“INS”), testified that he conducted the preliminary investigation of appellant’s application for citizenship. Mr. Ball stated that if appellant had revealed any convictions, Ball would have requested a further investigation concerning appellant’s good moral character before making a recommendation on appellant’s application for citizenship.

Harold Nowlan, an investigator with the INS, testified that he contacted an immigration investigator in Washington, D.C. who served as liaison to Interpol, and requested a certified copy of any criminal record for appellant held by the Israeli National Police. He received a document, identified as Exhibit 4, which purports to list four convictions suffered by appellant in Israel between 1955 and 1964. He also received an identification form, marked as Exhibit 3, which purports to contain the fingerprints of the person whose criminal record is shown in Exhibit 4. These fingerprints, it is stipulated, matched appellant’s.

Appellant claims that neither Exhibit 3 nor Exhibit 4 was properly authenticated according to the FRE. He also claims that Exhibit 4 should have been excluded from evidence as hearsay not falling- within any recognized exception. Finally, appellant contends that the admission of Exhibit 4 violated his sixth amendment right to confrontation of the witnesses against him.

II. AUTHENTICITY

It appears that the trial court decided that Exhibits 3 and 4 were authentic, based only on the documents’ “aura of authenticity” and not on compliance with the FRE. The standard of review of a district court’s decision regarding authenticity of evidence is the abuse of discretion standard. United States v. Cox, 633 F.2d 871, 874 (9th Cir.1980) cert. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981). This is because authenticity is merely an aspect of relevancy. Fed.R.Evid. 701 advisory committee note.

Although the trial court was correct in finding that neither Rule 901 nor 902(3) was complied with, the court did abuse its discretion in holding the evidence authentic and admissible. This circuit requires strict compliance with the authenticity rules. Sandoval-Vera v. Immigration & Naturalization Service, 667 F.2d 792, 793 (9th Cir.1982); Iran v. Immigration & Naturalization Service, 656 F.2d 469 (9th Cir.1981); Chung Young Chew v. Boyd, 309 F.2d 857, 866-67 (9th Cir.1962).

[1293]*1293In this case, the extrinsic evidence, consisting of the testimony of an INS agent, was not enough to sustain a finding of authenticity under 901(a). That testimony was not “sufficient to support a finding that the matter in question is what the proponent claims.” Fed.R.Evid. 901(a). In addition, the requirements of 902(3) for self-authentication of foreign public documents were not met.1 The trial court was correct in its determination that the first requirement of 902(3) was not met; that requirement is that the document be executed or attested by a person who is acting in an official capacity and who is authorized by the laws of that country to make the attestation or execution. The trial court was not satisfied that Herstig, who signed the documents, was properly authorized. We agree, since no evidence was presented as to the nature of Herstig’s authority or position.2

The FRE offers generous opportunity to authenticate by presentation of sufficient evidence to support the authenticity, of a document. Alternatively, if 902(3) is met the document is self-authenticating. But the rules offer no third means of authentication; certainly it is not enough that the documents present an “aura of authenticity.” Thus, the trial court abused its discretion by admitting the unauthenticated documents into evidence.

III. HEARSAY OBJECTIONS

Appellant also claims that Exhibit 4 was admitted in violation of the prohibition against hearsay evidence in Fed.R.Evid. 802, since that exhibit is hearsay that does not fit within any of the exceptions to the prohibition provided in Rule 803. The trial court’s decision to admit evidence over hearsay objections is reviewed under an abuse of discretion standard. United States v. Burreson, 643 F.2d at 1349.

A. THE PUBLIC RECORDS EXCEPTION, Fed.R.Evid. 803(8)

The public records exception to the rule against admission of hearsay evidence is found in Fed.R.Evid. 803(8), which states in part:

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693 F.2d 1290, 1982 U.S. App. LEXIS 23645, 12 Fed. R. Serv. 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-yitchak-ijo-perlmuter-ca9-1982.