Crimes of Moral Turpitude

(B)

Police Reports.  A police report is not part of the record of conviction.[1]  The United States Supreme Court, in fact, reversed the First Circuit on this issue.[2]  The Ninth Circuit has suggested that police reports may not be used even if the noncitizen defendant has stipulated that the police reports reflect the factual basis for the plea, but other Ninth Circuit decisions suggest otherwise.[3]

            Because of their inherent unreliability, police reports have generally been excluded from evidence at criminal trials.[4]  The rule’s legislative history indicates that: “the reason for this exclusion is that the 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 police and the defendant in criminal cases.”  Reports of “law enforcement personnel” included in Federal Rule of Evidence 803(8) are generally regarded as unreliable if prepared in an adversarial setting.[5]  The Ninth Circuit has likewise excluded a report prepared by an INS inspector during the interrogation of a noncitizen at the border, where the suspicion was alien smuggling and the setting adversarial and investigatorial in nature.[6]

            Police reports also may not be used to determine whether a noncitizen is eligible for relief as a matter of discretion,[7] or to prove the existence of a conviction.[8]  One area in which it appears that a police report may be considered is when a federal court is determining a sentence for a noncitizen convicted of illegal re-entry.[9]

[189] United States v. Vasquez-Garcia, 449 F.3d 870 (8th Cir. Jun. 9, 2006) (police reports could not be used to determine whether offense was an aggravated felony firearms offense; defendant wanted police reports submitted to rebut charging document to which he entered a plea to possession of a sawed off shotgun); United States v. Guerrero-Velasquez, 434 F.3d 1193 (9th Cir. Jan. 19, 2006); United States v. Martinez-Hernandez, 422 F.3d 1084 (10th Cir. Sept. 2, 2005) (California conviction for possession of a weapon, in violation of Penal Code § 12020(a)(1), cannot be considered a “firearms offense” where the record of conviction did not specify the weapon, even though the police report indicated that the weapon involved was a sawed-off shotgun); United States v. Insaulgarat, 378 F.3d 456 (5th Cir. July 19, 2004) (police reports inadmissible as part of record of conviction, even if they fall within business or official records exception to hearsay rule, citing Federal Rule of Evidence 803(8)(B)); Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir. 1978) (although immigration judge acted improperly in considering police reports implicating noncitizen in criminal activity as “adverse factors” bearing on discretionary relief from deportation, reversal was not required in view of other evidence of record); Matter of Teixeira, 21 I. & N. Dec. 316 (BIA 1996) (“The police report is not part of a ‘record of conviction,’ nor does it fit any of the regulatory descriptions. Cf. 8 C.F.R. § 1003.41.  Therefore, the police report should not have been considered to determine whether the specific offense of which the respondent was convicted constitutes a firearms violation.”).  Cf. United States v. Allen, 282 F.3d 339 (5th Cir. 2002) (district court improperly relied on police report to determine whether prior conviction was a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii)).  But see Matter of PC, 8 I. & N. Dec. 670 (BIA 1960) (in narcotics case, affidavit of arresting officer and laboratory report considered part of conviction record under New York law were relevant in determining nature of the crime).

[190] Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254 (Mar. 7, 2005) (a court sentencing a defendant under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary), overruling United States v. Harris, 964 F.2d 1234 (1st Cir. 1994), and reversing United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  An immigration case, Emile v. INS, 244 F.3d 183 (1st Cir. 2001), relying upon the reasoning of the overruled cases, should also be considered implicitly overruled.

[191] United States v. Almazan-Becerra, 456 F.3d 949, 954-955 (9th Cir. Aug. 1, 2006) (police reports stipulated as factual basis for plea are not the functional equivalent of either a plea agreement or plea colloquy).  But see Suazo Perez v. Mukasey, 512 F.3d 1222 (9th Cir. Jan. 22, 2008) (noncitizen's "decision to incorporate the police report into his guilty plea made the report “an explicit statement ‘in which the factual basis for the plea was confirmed by the defendant.’” Thus, in this circumstance, “relying upon the [police report] to establish the elements of the crime” of conviction “does not undermine the purposes of our limited modified categorical inquiry.”), citing Parrilla v. Gonzales, 414 F.3d 1038, 1044 (9th Cir. 2005) (police reports may be considered “if specifically incorporated into the guilty plea or admitted by a defendant.”).  See § 7.11(B), supra.

[192] F. R. Evid. 803(8)(B) reads: “(8) Public records and reports. 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.”  See also advisory note to Rule 803(8)(B).

[193] United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979).  See also United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. June 26, 2002) (holding inadmissible as a violation of the Confrontation Clause a police summary of an interview with the defendant, which fell within the criminal case exclusion to the hearsay exception for public records, and was not an admission made by defendant or adopted by him).

[194] United States v. Pena-Gutierrez, 222 F.3d 1080 (9th Cir. 2000).

[195] Matter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995); but see Henry v. INS, 74 F.3d 1, 5-7 (1st Cir. 1997); Matter of Grijalva, 19 I. & N. Dec. 713 (BIA 1988).

[196] Matter of Teixeira, 21 I. & N. Dec. 316, 319 (BIA 1996).  See also INA § 240(c)(3)(B), 8 U.S.C. § 1229a(c)(3)(B); 8 C.F.R. § 1003.41.

[197] United States v. Londono-Quintero, 289 F.3d 147 (1st Cir. May 6, 2002).