OpenJurist

919 F2d 146 United States v. Alvarado-Nunez

919 F.2d 146

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Francisco ALVARADO-NUNEZ, Defendant-Appellant.

No. 89-10351.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 13, 1990.*
Decided Nov. 28, 1990.

Before CHAMBERS, KOZINSKI and NOONAN, Circuit Judges.

1

MEMORANDUM**

2

Francisco Alvarado-Nunez stands convicted as an alien illegally reentering the united States from Mexico after a former deportation, a violation of 8 U.S.C. Sec. 1326. His defense was that he was an American citizen, born October 2, 1940, near Fort Huachuca, Arizona.

3

The government entered into evidence a purported birth certificate filed by his father, Francisco A. Alvarado.1 The mother and father were Mexican citizens at all times. The certificate recited that the now defendant was born in Cananea, Sonora, Mexico, on October 2, 1940. It was filed in the local registry at Cananea, Sonora, Mexico, on October 10, 1940. At that time two attesting witnesses certified on the certificate of birth that the whole document was true. It was properly analyzed and admitted into evidence.

4

Affirmatively the government presented little else.

5

Francisco Alvarado-Nunez had numerous brothers and sisters who testified it was the family tradition that Francisco was born in Fort Huachuca, Arizona. The mother predeceased her husband. The father, Francisco A. was ill in Nogales, Sonora, at the time of trial in Tucson, Arizona, and did not appear. The jury was free to disbelieve the family's oral evidence. Indeed, the competent attorney, who represented the defendant at trial and on appeal, makes no point of the failure of the jury to accept the family's testimony.

6

Instead, counsel relies on this: She offered to present expert evidence from a very learned professor at the University of Arizona to the effect that from 1930 to 1940, it was common practice for Mexican citizens traveling in the United States to take their children born in the United States and return to Mexico and raise them as Mexican citizens, and further, that it was common practice to register in Mexico the birth of such children.2 It may be noticed that the Professor did not offer to prove that it was common practice for fathers to make a false statement in the registration as to where the child was born. The case conceivably could have been different if the testimony offered had been "universally" used, but we doubt it.

7

The profferred testimony was just too speculative.

8

It may be noticed that we have cited no cases. We do not think they are necessary.

9

Conviction AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3

1

It is frequent practice in Mexico to add the mother's name following the father's surname to the child's name

2

The proffer was rejected