[Copyrighted Material Omitted]
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY. Joseph J. Ellis, Judge.
John A. Mell (Mell & Frost, PC, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Humphreys, Alston and Decker.
[63 Va.App. 733] MARLA
Prince Adjei appeals his convictions for perjury, in violation of Code § 18.2-434, and possession of a firearm by an illegal alien, in violation of Code § 18.2-308.2:01(B). The appellant contends that the trial court erred by admitting the Commonwealth's document exhibits into evidence and concluding that the evidence was sufficient to support his convictions. We hold that the documents were properly admitted into evidence. Further, we hold that the evidence was sufficient to support the convictions. For these reasons, we affirm.
This case arises from the appellant filing a concealed handgun permit application with the Spotsylvania County Circuit [63 Va.App. 734] Court. The Commonwealth ultimately charged the appellant with perjury, alleging that he falsely answered " no" to the question on the application regarding whether he was " an alien not lawfully admitted for permanent residence in the United States." The Commonwealth also charged the appellant with possession of a firearm by an illegal alien.
Prior to trial, the Commonwealth made a motion to introduce into evidence copies of various documents from the appellant's alien file kept by the United States Citizen and Immigration Services (USCIS), an agency of the United States Department of Homeland Security (DHS). In support of the admission of the exhibits, the Commonwealth presented the testimony of Special Agent John Ferrick. The agent was employed by Immigration and Customs Enforcement (ICE), also an agency of DHS. Ferrick testified that during the course of investigating the appellant, he accessed DHS's file on him. Ferrick explained that he accessed and relied on such files regularly in the course of his employment. The agent further stated that he requested a certified copy of the file from the National Records Center. The file was transferred to the agent's custody. Ferrick noted that the file arrived with a certification bearing a DHS seal. In court, Ferrick identified a certified copy of the appellant's " immigration alien file."
The appellant objected to the admission of the documents as hearsay. He argued that the certification signature of Emma Davidson and the accompanying notation, " Washington District Office, office of authorized person," were insufficient to [63 Va.App. 735] show that she was " the person to whom the custodian report[ed]." The appellant also argued that the documents were not kept in the ordinary course of business because they were prepared in anticipation of litigation regarding his immigration status in the United States. He further asserted that the documents contained some inadmissible statements of opinion. Last, the appellant suggested that admitting the documents would
violate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because it would deprive him of his constitutional right to confront his accusers. After taking evidence and hearing argument at the pre-trial hearing, the trial court ruled that the documents were admissible.
At trial, Special Agent Ferrick testified that the appellant was a citizen of Ghana and not legally present in the United States. He explained that the appellant first entered the country in October of 2003 with a travel visa that expired that same month. Ferrick noted that the appellant's status in this country changed to " unlawful" the day after his visa expired.
Ferrick summarized the appellant's attempts to obtain legal resident status in this country. The appellant filed an application for residence in 2005 based on his purported marriage to an American citizen. That application was denied after his American spouse withdrew her support for the application. The appellant applied a second time for permanent residence in 2007, that time based on the diversity visa program. USCIS denied that application because the appellant did not qualify for eligibility due to his illegal status in this country. The appellant's 2012 application and third attempt for permanent residence was again based on marriage to an American citizen, who was a different person than in his original application. The USCIS denied that application based on a finding of marriage fraud. In addition to his testimony regarding the failed applications, Ferrick clarified that although the appellant had received authorization to work in the United States for one year, he never obtained legal permission to live here.
[63 Va.App. 736] During the course of his investigation, Ferrick learned that the appellant had received a concealed weapon permit through Spotsylvania County and obtained a copy of the permit application. He was concerned about the application because the appellant represented on it that he was lawfully admitted for permanent residence in the United States, and Ferrick knew that the appellant was not a lawful permanent resident.
As Ferrick testified, the Commonwealth introduced the related immigration documents into evidence. The court also admitted into evidence the " Certification of Documents" and two letters from USCIS verifying the contents of the file.
Special Agent Freddie Childs of the Virginia Department of State Police also testified at trial. Childs assisted Ferrick in investigating the appellant. During the course of the investigation, Childs went to the appellant's home. He told the appellant that he was investigating his concealed handgun permit. The agent asked the appellant where he had firearms located in the house. The appellant responded that he had a " nine millimeter" in his bedroom closet. At Childs' request, the appellant showed him the weapon and let the agent hold it.
During the interview that immediately followed, the appellant told Childs that although he did not have a green card, he was not an illegal alien because he had a work visa. Childs showed the appellant the concealed handgun permit application and asked him specifically about the immigration status question on the application. The appellant responded that the particular question confused him. When Childs asked why, the appellant answered, " I don't know." Childs then asked the appellant whether he was a lawful permanent resident of the United States, and he responded " no."
The trial court found the appellant guilty of perjury and possession of a firearm by an illegal alien. He was sentenced to twelve months in jail on each offense.
The appellant assigns error to the trial court's admission of the documents from USCIS into evidence, based upon [63 Va.App. 737] the rule against hearsay as well as the Confrontation Clause of the Constitution of the United States. He also argues that the evidence was insufficient to support his conviction for
perjury because the Commonwealth did not prove that he had actual notice of his illegal alien status at the time that he completed the concealed handgun permit application. Finally, the appellant maintains that the Commonwealth did not prove the elements of ...