## Facts

- Santos Renan Orellana-Blanco, a noncitizen, was prosecuted for marriage fraud and for making false statements to immigration authorities based on an alleged sham marriage to U.S. citizen Beatrice (“Bobby”) Boehm.
- The government’s case depended largely on competing credibility accounts: Boehm testified the marriage was fraudulent from inception and they never lived together; Orellana-Blanco testified he intended a real marriage and cohabitation but the relationship failed.
- A central piece of the prosecution’s corroborating evidence was “Exhibit 3,” a written “Record of Sworn Statement” prepared by an INS officer (Kendall) summarizing an interview connected to an I-130 petition.
- Exhibit 3 attributed to Orellana-Blanco admissions that he lived with Boehm before and after the marriage and continuously cohabited as husband and wife.
- Orellana-Blanco denied making the statements reflected in Exhibit 3 and disputed continuous cohabitation.
- Kendall, the interviewing officer and author of the report, did not testify at trial because he was on sick leave.
- Another INS officer (Radke), who briefly assisted with translation, testified and sponsored Exhibit 3, stating the report was not verbatim and was compiled from Kendall’s “spotty and cryptic notes” that Radke could not interpret.
- During deliberations, the jury questioned why Boehm was not charged for her role in falsifying records, indicating concern about her credibility.
- The district court admitted Exhibit 3 over objection; the jury convicted Orellana-Blanco of marriage fraud (8 U.S.C. § 1325(c)) and making a false statement (18 U.S.C. § 1546(a)).

## Issues

1. Whether an INS officer’s investigative interview memorandum offered against a criminal defendant is admissible under the public-records exception, Fed. R. Evid. 803(8), or excluded as a law-enforcement observation offered against the accused.
2. Whether the exhibit contained hearsay within hearsay requiring independent exceptions for both the officer’s report and the defendant’s purported statements.
3. Whether admitting the report without the author’s testimony violated the Sixth Amendment Confrontation Clause where the author was not shown constitutionally unavailable and there was no prior opportunity for cross-examination.
4. Whether any error in admitting the exhibit was harmless given the trial’s credibility-driven evidentiary posture.

## Decision

- The Ninth Circuit reversed the convictions and remanded for a new trial.
- The court held Exhibit 3 was inadmissible hearsay and not covered by Rule 803(8)’s public-records exception because it was an investigative law-enforcement report used against the accused in a criminal case.
- The court held the exhibit also presented hearsay-within-hearsay problems because the government did not establish a basis to admit both the written summary and the underlying purported oral statements.
- The court concluded admission of Exhibit 3 violated the Confrontation Clause because Kendall’s absence prevented effective cross-examination about what was asked, what was said, and how the summary was prepared; Radke’s limited involvement could not substitute.
- The court found the error not harmless because Exhibit 3 provided powerful corroboration on the contested issue of falsity in a case otherwise turning on witness credibility.

## Legal Principles

- For purposes of Fed. R. Evid. 803(8), immigration officers conducting investigative interviews are treated as law-enforcement personnel; their investigative memoranda offered against a defendant in a criminal case fall within the law-enforcement exclusion from the public-records exception.
- Where a government report recounts a defendant’s alleged statements, the evidence commonly contains two hearsay layers (the report and the underlying statements), and each layer must independently satisfy a hearsay exception.
- The Confrontation Clause is implicated when the government uses an absent officer’s interview report to prove a key element; absent adequate unavailability and an opportunity for cross-examination (or a constitutionally sufficient substitute), admission is unconstitutional.
- Harmless-error review considers the exhibit’s importance to the government’s proof, particularly where the case hinges on credibility and the challenged evidence supplies decisive corroboration.

## Conclusion

The Ninth Circuit ordered a new trial because an INS officer’s nonverbatim interview summary, introduced through a substitute witness, was inadmissible under the hearsay rules and violated the defendant’s confrontation right, and the resulting prejudice was not harmless in a credibility-centered prosecution.


United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002)