## Facts

- Luis Miguel Diaz-Lopez, a citizen of Mexico, was encountered on a road in California north of the U.S.-Mexico border on February 13, 2009, and was arrested.
- The government prosecuted Diaz-Lopez for being a removed alien found in the United States, in violation of 8 U.S.C. § 1326(a).
- At a bench trial, the government sought to prove Diaz-Lopez lacked permission to reapply for admission after removal.
- A Border Patrol agent testified that he searched the CLAIMS immigration database using Diaz-Lopez’s name, alien number, and date of birth.
- The agent testified the search revealed no record that Diaz-Lopez had filed Form I-212 (the application for permission to reapply for admission after removal).
- Diaz-Lopez objected that the testimony lacked foundation and violated the best evidence rule because the government did not introduce database printouts or similar records.
- The district court admitted the testimony, found Diaz-Lopez guilty, and imposed a 21-month sentence plus three years of supervised release.

## Issues

1. Whether the Border Patrol agent’s testimony about the absence of a Form I-212 record in the CLAIMS database lacked sufficient foundation for admission under Federal Rule of Evidence 803(10).
2. Whether admitting oral testimony about the results of the database search, without producing database records, violated the best evidence rule under Federal Rule of Evidence 1002.

## Decision

- The Ninth Circuit affirmed the conviction.
- The district court did not abuse its discretion in admitting the agent’s testimony as evidence of the absence of a public record under Federal Rule of Evidence 803(10).
- The best evidence rule was not violated because the testimony was offered to prove the nonexistence of a record, not the contents of a writing or electronic record.

## Legal Principles

- Federal Rule of Evidence 803(10) permits testimony that a diligent search of public records disclosed no record or entry.
- A witness offering Rule 803(10) absence-of-record evidence must credibly describe the search performed and the negative result; the witness need not be the database designer or formal custodian if the foundation shows a reliable search.
- Federal Rule of Evidence 1002 applies when a party seeks to prove the contents of a writing, recording, or photograph; it does not bar testimony offered to prove that no such record exists.
- In prosecutions requiring proof that a defendant lacked governmental permission or authorization, negative results from official database searches may be established through qualified testimony when properly founded.

## Conclusion

The Ninth Circuit held that a Border Patrol agent’s testimony describing a negative search of an official immigration database for a required permission application was admissible to prove the absence of a public record under Rule 803(10) and did not trigger Rule 1002 because the government was proving nonexistence of a record rather than the contents of any record.


United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010)