United States v. Phoeun Lang

United States Court of Appeals
For the First Circuit
No. 10-1353
UNITED STATES,
Appellee,
v.
PHOEUN LANG,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Robert C. Andrews for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty II, United States Attorney, was on brief, for appellee.
February 16, 2012

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THOMPSON, Circuit Judge. A jury found defendant Phoeun
Lang ("Lang") guilty of making false statements and applying for
naturalization in violation of 18 U.S.C. §§ 1001(a)(2) and 1425(b).
On appeal, Lang makes the following three arguments: (1) the
admission of immigration form N-445 violated his Sixth Amendment
right to confrontation, (2) the admission of immigration form N-445
under the public records exception to hearsay was error, and (3) 1
the government's repeated reference to his prior conviction was
unfairly prejudicial. Discerning no error, we affirm.
I. BACKGROUND
Accompanied by his parents, Lang arrived in the United
States in 1985 at age three as a refugee. In time, his status
changed and he became a lawful permanent resident. Seeking to
become a United States citizen, Lang submitted an Application for
Naturalization form, also known as the N-400. Thereafter, on July
18, 2005, Lang went to the Citizenship and Immigration Service's
("CIS") office in South Portland, Maine and under oath, verbally
In his brief to this court, Lang challenged the admission of 1
both forms N-400 and N-445. However, form N-400 is not hearsay.
See Fed. R. Evid. 801(c). For starters, the CIS officer who went
over the N-400 with Lang testified at trial regarding the
verification procedure used to confirm Lang's responses. See
discussion infra Part I. Furthermore, and as the government points
out in its brief, the remaining portion of form N-400 consisted of
Lang's answers to the questions asked and therefore constitute
admissions of a party opponent and are not hearsay. See Fed. R.
Evid. 801(d)(2)(A). Absent any authentication argument, which Lang
fails to advance, there is no merit in his argument that form N-400
was improperly admitted. Consequently, our analysis is concerned
only with the admissibility of form N-445.
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went over the N-400 "question-by-question" with CIS field office
director Dorothy Michaud ("Michaud"), a 33 year employee of CIS.2
CIS policy requires that its officers verify that they have
reviewed each individual question with the applicant. This
verification procedure is done by placing a red checkmark next to
every question after it has been confirmed by the applicant.
One section of the N-400 asked questions related to an
applicant's "good moral character." Michaud explained at trial 3
that these questions "are designed so that [CIS] can elicit a
response as to whether [any applicant] has been involved in any
type of criminal activity . . . [t]hat may render them ineligible
for naturalization." Question 15 on the N-400 asked, "Have you
ever committed a crime or offense for which you were not arrested?"
The box marked "No" was checked. After discussing the specific
question with Lang and confirming his negative response, Michaud
put a checkmark next to the answer. Question 22c asked, "Have you
ever sold or smuggled controlled substances, illegal drugs or
narcotics?" Once again, Lang had checked "No" and Michaud verified
CIS came into existence under the Department of Homeland 2
Security in 2008. Prior to that time, the agency was referred to
as the Immigration and Naturalization Service.
Pursuant to 8 U.S.C. § 1427(a)(3), all applicants must 3
establish good moral character dating back five years prior to the
filing of their application for naturalization up until the date of
their naturalization ceremony.
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his answer by placing a checkmark next to it. After confirming 4
the rest of Lang's responses and addressing some miscellaneous 5
administrative issues, Michaud recommended that Lang's application 6
be granted.
With the N-400 application portion of the naturalization
process completed satisfactorily, Lang was notified by means of an
N-445 form of an upcoming oath ceremony, which he was required to
attend. The N-445 also contained a series of questions which Lang
had to complete. The purpose of the questions was to confirm that
the applicant had maintained good moral character from the
completion of the N-400 interview up until the day of the swearing-
in ceremony. Question 4 on the N-445 asked, "AFTER the date you
were first interviewed on your Application for Naturalization, Form
N-400: Have you been arrested, cited, charged, indicted, convicted,
fined or imprisoned for breaking or violating any law or ordinance,
including traffic violations?" The box marked "No" was checked.
Lang did, however, admit that he had been arrested and 4
charged with driving while intoxicated and that he had also failed
to pay a fine. This information required that Lang's application
be reviewed by a supervisor before being approved.
Because Michaud had made some changes to Lang's N-400 5
application, she gave the form back to Lang, asked him to review
the changes and answers once more, and then put him under oath for
a second time to swear to the contents of the application.
These included oath requirements, signature confirmation, 6
satisfactory completion of a naturalization testing form, as well
as reading and writing proficiency tests, and the presentation of
supplemental documentation.
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Though Michaud was not present for Lang's swearing-in
ceremony, she was nonetheless familiar with the standard procedure
for that day due to her ten years of experience in processing
naturalization applications, as well as training other CIS
officers. At trial, she outlined the standard protocol: (1) an
officer reviews the questions and answers with the applicant, (2)
the applicant's responses are confirmed, (3) after the responses
are confirmed, they are checked in red by the officer, and (4) the
officer confirms that the signature on the N-445 matches the
signature on the Certificate of Naturalization, which is signed
before the ceremony. Upon completion of the N-445, the applicant
takes part in two ceremonies, one administrative, the other
judicial. Having successfully completed both the N-400 and N-445
applications, Lang was naturalized on March 17, 2006.
Unbeknownst to Michaud, or for that matter any other CIS
officer, Lang had distributed cocaine twice in late 2004 and once
in early 2005. Consequently, his responses to Questions 15 and 22c
on the N-400, which he reviewed with Michaud on July 18, 2005, were
false. Similarly, Lang's response to Question 4 on the N-445 was
false because on August 8, 2005, in between the N-400 interview
and Lang's oath ceremony, Lang had been arrested for distributing
cocaine and amphetamines.7
On October 9, 2007, Lang pled guilty to three counts of 7
distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C). He was sentenced to one year and one day in prison,
three years of supervised release, and ordered to pay a three
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Lang was indicted on two counts of making a material
false statement to the Department of Homeland Security ("DHS") in
violation of 18 U.S.C. § 1001(a)(2) and one count of unlawfully
applying for and obtaining naturalization and a certificate of
naturalization in violation of 18 U.S.C. § 1425(b). At trial, both
the N-400 and N-445 forms were admitted into evidence over Lang's
objections. Michaud testified that if she had known about Lang's
prior involvement in distributing cocaine, she "would have changed
his response[s] . . . from no to yes." Moreover, Michaud testified
that had CIS determined that Lang had previously been involved with
cocaine distribution, "his application would have been denied"
because "[h]e would not have been found to have met the good moral
character requirement."
Lang was found guilty on all counts. He renewed his
motion for judgment of acquittal but was denied. Thereafter, he 8
was sentenced to four months at the Bureau of Prisons and two years
of supervised release. This appeal followed. 9
hundred dollar assessment.
Lang had made two previous oral Rule 29 motions for judgment 8
of acquittal -- once at the conclusion of the government's case and
again at the close of the evidence -- both were denied.
Lang was sentenced to four months' imprisonment and two years 9
of supervised release on each of the three counts; however, those
sentences ran concurrently.
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II. DISCUSSION
A. Confrontation Clause Challenge
Lang's first argument on appeal is that the admission of
form N-445 violated his constitutional right to confront the
witnesses against him. According to Lang, the CIS agent's
"statements" in the N-445 form -- specifically, the verification
checkmarks next to Lang's responses -- were admitted to prove that
he made false statements to CIS. As such, they were testimonial
hearsay requiring that the CIS officer who verified Lang's
responses, not Michaud, be present at trial and subject to cross-
examination.10
This court "review[s] the district court's legal
conclusions regarding the Confrontation Clause de novo." United
States v. Earle, 488 F.3d 537, 542 (1st Cir. 2007). Under this
standard, "[i]f a constitutional error has occurred, we must order
a new trial unless the government has shown that any error was
'harmless' beyond a reasonable doubt." Id.
"The Sixth Amendment's Confrontation Clause confers upon
the accused in all criminal prosecutions . . . the right . . . to
be confronted with the witnesses against him." Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2713 (2011) (internal quotation marks and
citation omitted). In Crawford v. Washington, 541 U.S. 36 (2004),
Lang cannot, and does not, take issue with the answers he 10
provided on the form. These responses constitute admissions of a
party opponent and therefore, are not hearsay. See Fed. R. Evid.
801(d)(2)(A).
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the Supreme Court "held that the Confrontation Clause bars
admission of testimonial hearsay in a criminal case unless the
declarant is unavailable and the accused has had a prior
opportunity for cross-examination." Earle, 488 F.3d at 542 (citing
Crawford, 541 U.S. at 68). Post-Crawford, the Court has "held that
the Confrontation Clause applies only to testimonial hearsay." Id.
(citing Davis v. Washington, 547 U.S. 813, 823-24 (2006)).
Accordingly, when we are faced with a Crawford argument, our
analysis includes consideration of "whether the out-of-court
statement was testimonial." Id.
Thus far, the Supreme Court has declined to supply "a
comprehensive definition of 'testimonial.'" Crawford, 541 U.S. at
68; see also Davis, 547 U.S. at 822. The Court has, however,
provided an illustrative list of the "core class of 'testimonial'
statements." Crawford, 541 U.S. at 51. It includes (1) "ex parte
in-court testimony or its functional equivalent -- that is,
material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect
to be used prosecutorially," (2) "extrajudicial statements . . .
contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions," and (3) "statements
that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available
for use at a later trial." Id. at 51-52 (internal quotation marks
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and citation omitted). Besides providing an illustrative list of
statements that were "testimonial," the Court acknowledged that
certain statements, "by their nature [are] not testimonial -- for
example, business records or statements in furtherance of a
conspiracy[,]" and are therefore exempt from the requirements of
the Confrontation Clause. Id. at 56. Mindful of Crawford's bottom
line, this court, in determining whether a statement is
"testimonial," inquires whether "an objectively reasonable person
in the declarant's shoes would understand that the statement would
be used in prosecuting the defendant at trial." Earle, 488 F.3d at
543.
In ruling that the N-445 did not violate the
Confrontation Clause and was therefore admissible, the district
court stated that, "Crawford . . . very explicitly distinguished
[business records] as not testimonial." Finding "no distinction"
between business records and public records for purposes of the
Confrontation Clause, the court concluded that the N-445 form was
not testimonial. We agree that the executed N-445 form was not 11
testimonial.
The court did note, however, that "one distinction" between 11
business records and public records would be if the N-445 was a
"law enforcement type document" and therefore fell under the law
enforcement exception to Rule 803(8). As discussed infra, the
district court ultimately concluded that the law enforcement
exception was not applicable to either form N-400 or N-445. See
discussion infra Part II.B.
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According to Agent Michaud, CIS processes thousands of
citizenship applications annually and uniformly throughout the
United States. Every applicant seeking naturalization must
complete form N-445 and a CIS agent must verbally verify with the
applicant the accuracy of the applicant's written answers before a
final approval for citizenship can be given. The red checkmark
next to the applicant's response demonstrates the CIS agent's
compliance with the administrative protocol and the form is kept
permanently in every applicant's file. That said, we find
unpersuasive Lang's suggestion that the red checkmark verification
method used by the CIS officer was a testimonial statement and that
the N-445 was "primarily to be used in court proceedings."
Instead, we are convinced that Lang's N-445 form, like all others
similarly generated, was a non-testimonial public record produced
as a matter of administrative routine, for the primary purpose of
determining Lang's eligibility for naturalization. See discussion
infra, Part II.B. Accordingly, "an objectively reasonable person
in the [CIS agent's] shoes would [not] understand that the [form]
would be used in prosecuting [Lang] at trial." Earle, 488 F.3d at
543. The form was not testimonial. See Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2539-40 (2009) (stating that
business and public records "are generally admissible absent
confrontation . . . because -- having been created for the
administration of an entity's affairs and not for the purpose of
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establishing or proving some fact at trial -- they are not
testimonial").
Furthermore, this court has previously rejected a
Confrontation Clause argument regarding the admission of an
immigration document. See United States v. García, 452 F.3d 36,
41-42 (1st Cir. 2006) (holding that admission of warrant of
deportation was not in error because document did not constitute
testimonial hearsay under Crawford). A few of our sister circuits
have held the same. See United States v. Valdez-Maltos, 443 F.3d
910, 911 (5th Cir. 2006) (warrants of deportation do not constitute
testimonial hearsay under Crawford); United States v. Bahena-
Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (same), cert.
denied, 547 U.S. 1056 (2006); United States v. Cantellano, 430 F.3d
1142, 1145 (11th Cir. 2005) (warrant of deportation not testimonial
because it was "recorded routinely and not in preparation for a
criminal trial") (citation and internal quotation marks omitted);
United States v. Quezada, 452 F.3d 36, 42 (5th Cir. 1985) (holding
that a warrant of deportation was reliable and admissible because
the official preparing the warrant had no motivation to do anything
other than "mechanically register an unambiguous factual matter").
Because the N-445 form was not testimonial, its admission did not
violate Lang's constitutional right to confrontation. There was no
error.
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B. Evidentiary Challenge
Having decided that Lang's constitutional right to
confrontation was not violated by the admission of the N-445 form
we move on to address Lang's second challenge, whether admission of
the form nonetheless violated the Federal Rules of Evidence
proscription against hearsay. See, e.g., Bullcoming, 131 S. Ct. at
2720 (Sotomayor, J., concurring) (quoting Michigan v. Bryant, 131
S. Ct. 1143, 1155 (2011) ("When the primary purpose of a statement
is not to create a record for trial the admissibility of [the]
statement is the concern of state and federal rules of evidence,
not the Confrontation Clause.") (internal quotation marks
omitted)); see also Davis, 547 U.S. at 821 ("It is the testimonial
character of the statement that separates it from other hearsay,
that while subject to traditional limitations upon hearsay
evidence, is not subject to the Confrontation Clause.").
Lang challenges the district court's admission of form N-
445 under Fed. R. Evid. 803(8) -- the public records exception to
hearsay. We review the legal interpretation of a rule of evidence
de novo, but the decision to admit or exclude evidence is reviewed
for an abuse of discretion. See United States v. Dowdell, 595 F.3d
50, 70 (1st Cir. 2010).
Generally speaking, the Federal Rules of Evidence
preclude the use of hearsay at trial. Hearsay is defined as a
"statement that: (1) the declarant does not make while testifying
at the current trial or hearing; and (2) a party offers in evidence
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to prove the truth of the matter asserted in the statement." Fed.
R. Evid. 801(c). Nonetheless, Rule 803(8) provides an exception to
this general rule and permits the admission of public records and
reports. Two principal justifications for the rule are "the
presumed trustworthiness of public documents prepared in the
discharge of official functions, and the necessity of using such
documents, due to the likelihood that a public official would have
no independent memory of a particular action or entry where his
duties require the constant repetition of routine tasks." Quezada,
754 F.2d at 1193 (cited with approval in Dowdell, 595 F.3d at 72).
There is one final piece to Rule 803(8). Though it is an
exception to the general rule against hearsay, the rule itself
contains an exclusion, sometimes referred to as the law enforcement
exception, which precludes the admission of public records in
criminal cases for matters observed by police officers and other
law enforcement personnel. See Fed. R. Evid. 803(8)(A)(ii).12
Lang contends that form N-445 should not have been
admitted at trial because it falls under this exception.13
At the time the parties filed their briefs with this court 12
and appeared for oral argument, the relevant section was Rule
803(8)(B). However, the 2011 Supplement to the latest edition of
the Federal Rules has since changed this. Consequently, any
reference to the old rule, 803(8)(B), made by the parties or a
court of law and relied on in this opinion, will be cited to as the
new rule, 803(8)(A)(ii).
Before the district court, the government relied on Fed. R. 13
Evid. 803(6), the business records exception to hearsay, as an
alternative to its Rule 803(8) argument. Because we agree with the
district court that the form was admissible under Rule 803(8) we
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According to Lang, "the [CIS] [a]gent was a law enforcement officer
even though the job was not what the Government considers a part of
the police power or law enforcement." Lang proffers that under
Rule 803, "[i]t makes no difference . . . if the agent is an
Immigration and Customs Enforcement Agent or a Citizenship
Immigration Service Agent" and that those "two types of agents are
at least as close in relationship to law enforcement officers as
the Patrol officer and dispatcher" in Davis. See Davis, 547 U.S.
at 823 n.2 ("If 911 operators are not themselves law enforcement
officers, they may at least be agents of law enforcement when they
conduct interrogations of 911 callers. For purposes of this
opinion (and without deciding the point), we consider their acts to
be acts of the police."). He further argues that the form was to
be used primarily in court proceedings and therefore "should not
have [been] admitted . . . under the . . . public records hearsay
exception because that kind of admissibility had been squarely
rejected by the Supreme Court [in Melendez-Diaz]." See Melendez-
Diaz, 129 S. Ct. at 2538 (citing Fed. R. Evid. 803 (8)) (holding
that analysts' certificates of analysis stating that bags seized
contained cocaine do not qualify as business or public records).
We disagree.
Assuming arguendo that Michaud's status as a CIS agent
was equivalent to that of a law enforcement officer, an issue we
need not address the 803(6) argument.
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need not decide, the present case concerns the introduction of
documents related to an administrative proceeding for purposes of
determining qualifications for naturalization. That said, we
cannot agree with Lang's contention that "[t]here is no difference
between the certifications of drug weight and drug identification
[at issue in Melendez-Diaz] and the [N-445 form] offered by the
Government in [this] case." To the contrary, we think there is a
grave difference. The Court in Melendez-Diaz made it painstakingly
clear that "the analysts' certificates -- like police reports
generated by law enforcement officials -- do not qualify as
business or public records" because they are generated primarily
for use in court, not for business, and therefore are excluded
under Rule 803(8)(A)(ii). Melendez-Diaz, 129 S. Ct. at 2538
(citing Fed. R. Evid. 803(8)). The same cannot be said of form N-
445, which was undoubtedly "created for the administration of an
entity's affairs." Id. at 2539.
Furthermore, this court, as well as several of our sister
courts, has distinguished between documents produced in an
"adversarial" setting and those produced "in a routine non-
adversarial setting" for purposes of Rule 803(8)(A)(ii). Dowdell,
595 F.3d at 70 (internal quotation marks and citation omitted). In
so doing, we announced that,
[d]rawing a line at routine, non-adversarial
documents would best comport with the purpose
for which Congress originally approved the
exception. The Rule's enactment history
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indicates that "the reason for this exclusion
is that observations by police officers at the
scene of the crime or the apprehension of the
defendant are not as reliable as observations
by public officials in other cases because of
the adversarial nature of the confrontation
between the police and the defendant in
criminal cases."
Id. (citation omitted). The circumstances presented here certainly
are not the "adversarial circumstances which might render a law
enforcement officer's observations unreliable." Id. (quoting
United States v. Union Nacional de Trabajadores, 576 F.2d 388, 391
(1st Cir. 1978) (internal quotation marks omitted)). Instead, form
N-445 is "ministerial, non-adversarial information" and is
therefore "admissible under Rule 803(8)[(A)(ii)], notwithstanding
its documentation at the hands of law enforcement personnel." Id.
at 72. While it is true that criminal charges can result, if, as
is the case here, false evidence is elicited on the form, criminal
charges are not the primary purpose of the administrative
proceedings surrounding an application for naturalization. There
was no abuse of discretion.
Having determined that form N-445 was properly admitted
under the public records exception to the hearsay rule, we now move
on to Lang's third and final argument.
C. Unfair Prejudice
Lang's final argument is that he was unfairly prejudiced
by the government's repeated reference at trial to his prior
conviction for selling cocaine. Generally, we review a trial
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court's ruling regarding unfair prejudice for abuse of discretion.
United States v. Bartelho, 71 F.3d 436, 443-44 (1st Cir. 1995).
However, because Lang failed to make any objection at trial, our
review is only for plain error. See United States v. Walker, No.
10-1092, 2011 WL 5865652, at *10 (1st Cir. Nov. 23, 2011). Under
this exacting standard, Lang "must show (1) that an error occurred
(2) which was clear or obvious and which not only (3) affected
[his] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial proceedings."
Id. (internal quotation marks and citation omitted).
During its opening, the government made approximately
eleven references to Lang's involvement with cocaine. Through its 14
For example, the government stated: 14
In the winter of 2004, the defendant, Phoeun Lang, sold
cocaine. Then, when he applied to be naturalized as a
United States citizen, he did not disclose that crime.
. . .
The defendant is charged with two crimes. Firstly,
making false statements to a federal agency, and the
second is unlawfully procuring or obtaining
naturalization. An individual makes a false statement to
a federal agency when, in his application to become
naturalized as a US citizenship [sic], he voluntarily and
intentionally conceals the fact that he's committed a
crime. An individual unlawfully obtains naturalization
when, in his application for naturalization and in
obtaining naturalization, he conceals the fact that he
sold cocaine.
. . .
The evidence is going to show to you that in the winter
of 2004, the defendant trafficked cocaine. In November
-- in New Hampshire in November of 2004, he sold cocaine.
He did it again in December of 2004, and he did it again
in January of 2005. He was later arrested for those
crimes and eventually convicted. What you'll learn is
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witness, Michaud, the government made an additional four references
to the fact that Lang had "sold cocaine" and "sold drugs."
References to Lang's prior involvement with cocaine were similarly
made during the government's closing. Relying on the Supreme
Court's decision in Old Chief v. United States, 519 U.S. 172
(1997), Lang argues that the government's reference to his prior
involvement with cocaine was unfairly prejudicial because he had
stipulated to his prior conviction. Id. at 175-77, 190-92 15
(holding that district court abuses its discretion if it declines
a defendant's offer to stipulate to a prior conviction and instead
admits the full record of the prior conviction when the name or
nature of the prior offense raises the risk of unfair prejudice,
that just a few months after he distributed cocaine in
the winter of 2004, he applied to become a naturalized
United States citizen.
. . .
You'll learn that on [the N-400] form, question 15 asks:
"Have you ever committed a crime or offense for which you
were not arrested?" And the defendant answered "no."
That statement was false. That statement was false
because the defendant had distributed cocaine on three
separate occasions in the winter of 2004.
Lang also relies on United States v. Coleman, 552 F.3d 853, 15
858 (D.C. Cir. 2009), for the proposition that "[f]ailure to
prevent unfair prejudice caused by a prior record when the prior
record has been stipulated to has been recognized . . . as plain
error." We are unconvinced. First, Coleman is not controlling
precedent in this Circuit. Second, the facts are distinguishable.
See id. at 855 (where defendant was convicted by a jury of being
a felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1), district court's reading of unredacted indictment to
prospective jury pool, revealing defendant's prior felony
convictions for crimes of violence constituted plain error).
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and when the purpose of the evidence is solely to prove the element
of prior conviction). We disagree.
To begin, Old Chief is inapposite to the facts here. In
fact, the Court made clear that its decision in Old Chief was
"limited to cases involving proof of felon status." Id. at 183
n.7. This is not that type of case. Instead, here we are faced
with charges of making a "false material statement" to DHS and
"unlawfully applying for and obtaining naturalization."
Additionally, unlike the defendant in Old Chief, Lang's status as
a convicted drug felon was not an element of the charged offense.
Cf. Old Chief 519 U.S. at 174-176. Rather, the relevant question
presented to the jury was whether Lang intentionally lied about
engaging in, and being arrested for, crimes that would render him
ineligible for naturalization. Consequently, Lang's readiness to
stipulate that he had been convicted of distributing cocaine failed
to render unnecessary proof that he knowingly lied about his
involvement with drugs at the time he confirmed the accuracy of
forms N-400 and N-445. There was no error, much less plain error.
III. CONCLUSION
For the reasons set forth above the admission of the N-
445 did not violate Lang's right to confrontation, the district
court did not abuse its discretion in admitting form N-445 as a
public record, and the government's reference to Lang's involvement
with cocaine was not unfairly prejudicial. We affirm.
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