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


Regarding testimony that an event did not occur because relevant records contain no mention of it, this negative type of testimony is usually held not to constitute proof of contents and thus not to require production of records. Indeed, the best evidence rule does not apply to testimony that books or records have been examined and found not to contain any reference to a designated matter.


Defendant Luis Diaz-Lopez (Diaz) was a citizen of Mexico. In 2009, a Border Patrol Agent found and arrested Diaz on a road in California, north of the United States-Mexico border. The government charged Diaz under 8 U.S.C. § 1326(a) with being a removed alien found in the United States without permission. At a bench trial, the government introduced testimony from a Border Patrol agent stating that he had performed a search of the Computer Linked Application Information Management System (CLAIMS) database using Diaz's name, alien number, and date of birth, but he had found no record of Diaz having filed a Form I-212, which is the required application for permission to reapply for admission to the United States after having been previously removed. The district court found Diaz guilty and sentenced him to 21 months in prison and three years of supervised release. Diaz appealed, contending that the agent’s testimony lacked foundation and that it violated Federal Rule of Evidence 1002 (the best evidence rule).


Did the agent’s testimony lack foundation, thereby violating the "best evidence rule"?




The Court held that the agent's testimony did not lack foundation under Fed. R. Evid. 803(10), because the agent testified that he was familiar with both the process of searching the records and the government's recordkeeping practices with regard to the database. The testimony did not violate the best evidence rule because Fed. R. Evid. 1002 was inapplicable to the agent's testimony that his search of the CLAIMS database revealed no record of a Form I-212 filed by defendant since the government did not introduce the testimony to prove the content of a writing.

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