United States of America v. Clasford Dennis Green

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4875
UNITED STATES OF AMERICA
v.
CLASFORD DENNIS GREEN,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 04-cr-00873
(Honorable Stanley R. Chesler)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2007
Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.
(Filed October 25, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Clasford Dennis Green appeals his conviction for illegal reentry after deportation
for an aggravated felony on two grounds: 1) the District Court’s refusal to admit into
evidence a letter to Green from his former counsel under Fed. R. Evid. 807, and 2) the

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Green was convicted in 1986, 1987, 1992, and 1993 of possession of marijuana with
intent to distribute, an aggravated felony as defined by 8 U.S.C. § 1101.
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District Court’s denial of Green’s motion for acquittal under Fed. R. Crim. P. 29(a). At
issue is whether Green was a U.S. citizen when he reentered the country in 2001. We will
affirm.
I.
Green, a Jamaican citizen, entered the United States in 1982 without a visa, joining
his mother, a naturalized U.S. citizen. Green’s mother had petitioned for Green to enter
as an immigrant, but the petition was denied. Green’s 1983 application for a visitor’s visa
was also denied. Between 1982 and 1991, Green established a business in New Jersey,
registered to vote, and filed one income tax return. Green was married to a U.S. citizen
from 1986-1989.
After Green was convicted of four separate offenses,1 deportation proceedings
were commenced by Immigration and Naturalization Services (“INS”) in 1990, but were
stayed for Green’s incarceration. In the 1990 deportation proceedings, Green was
represented by counsel who conceded Green was not a citizen. Green’s deportation
proceedings recommenced in 1997. Green was found not to be a citizen of the U.S. and
was ordered deported. Green was removed on January 11, 2001, and was warned not to
return to the United States absent permission from the Attorney General. But Green
reentered the country without permission in August 2001, and was arrested on August 24,
2004.

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Green was indicted for illegal reentry after deportation for an aggravated felony
under 8 U.S.C. § 1326(a) and (b)(2) and was tried before a jury. At trial, Green argued he
was a U.S. citizen and, therefore, did not reenter the country illegally. As proof, Green
attempted to enter into evidence prior counsel’s 1996 letter to Green, written in response
to Green’s disenfranchisement while in prison. The relevant portion of the letter stated,
“My immediate reaction to this statement is that you are still a citizen of the United States
but the [sic] you are not authorized to vote. Loss of citizenship normally occurs through
Denaturalization. Unless this has happened, you are still a citizen of the United States.”
The District Court excluded the letter, finding that it failed to meet the residual hearsay
exception of Rule 807.
Following the government’s case and his own, Green moved for acquittal pursuant
to Fed. R. Crim. P. 29(a). The District Court denied these motions, and the jury
subsequently found Green guilty of illegal reentry.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. The District Court
had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
Under Fed. R. Evid. 807, a statement which would otherwise be considered
hearsay may be admitted where 1) the statement is offered as evidence of proof of a
material fact, 2) the statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure under reasonable efforts, and 3) the
general purposes of the Rules and the interests of justice will best be served by the

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2
Green argues both he and the INS may have lost his naturalization papers.
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admission. The District Court found prior counsel’s letter failed to meet the second and
third requirements.
The District Court found that Green could have entered into evidence
naturalization papers or paperwork, testified to his citizenship status, or had someone else
testify to that effect.2 An unverified letter containing an unsupported and unexplained
statement by Green’s former counsel is not of greater probative value than these potential
proffers, failing to meet the second requirement of Rule 807.
Nor did the District Court find admission of the prior counsel’s letter to be in the
interests of justice, due to its questionable probative value. In 1990, prior counsel told the
Immigration Court that Green was not a U.S. citizen, and then (if we read the letter as
Green urges) stated the opposite six years later. No explanation was given and prior
counsel was unavailable to provide one. Furthermore, it remained uncertain whether
prior counsel was told or simply assumed Green was a citizen and drafted his response
accordingly. The letter revealed only that Green was disenfranchised and that prior
counsel responded to a related inquiry. The District Court did not abuse its discretion in
deciding that admission of prior counsel’s letter would not be in the interests of justice.
Moreover, Rule 807 is “to be used only rarely, and in exceptional circumstances
and appl[ies] only when certain exceptional guarantees of trustworthiness exist and when
high degrees of probativeness and necessity are present.” United States v. Wright, 363

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F.3d 237, 245 (3d Cir. 2004) (internal quotation marks omitted) (quoting United States v.
Bailey, 581 F.2d 341, 347 (3d Cir. 1978)). For the reasons discussed, there were neither
requisite exceptional circumstances nor exceptional guarantees of trustworthiness. Prior
counsel’s representation that Green was still a citizen, without explanation or support,
contained in a letter addressing only disenfranchisement, lacked probative value.
Turning to Green’s acquittal motions, we exercise plenary review over whether
there was sufficient evidence to support the jury’s guilty verdict when viewed in the light
most favorable to the prosecution, drawing all reasonable inferences in favor of the jury’s
verdict. United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002). Specifically, Green
challenges the sufficiency of the evidence, asserting that the lack of naturalization
documents in his immigration file was insufficient to prove he was not a U.S. citizen.
Green did not obtain citizenship through his mother or his marriage to a U.S.
citizen. Running a business, registering to vote, and filing income tax returns were
likewise insufficient to establish citizenship. Green’s immigration file contained no
evidence of naturalization. The Department of Homeland Security agent who was in
charge of Green’s immigration file testified that Green was not a naturalized citizen and
was not eligible for naturalization, and described the immigration file’s contents. The
agent did not know when the file had been created or who had custody of the file prior to
1997, but explained routine file maintenance procedure and responsibility. Green’s FBI
NCIC record was also admitted into evidence, listing his citizenship status as “unknown”
as of August 2004.

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Green’s immigration file was accurately maintained and was properly admitted
into evidence. The unrebutted file provided sufficient evidence to support the jury’s
guilty verdict.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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