While the stepfather’s non-testimonial statement in an application for permanent resident status for his stepson did not pose any Confrontation Clause issues, the statement that his stepson was born in Mexico was inadmissible as a public or business record; the error was not harmless, requiring reversal of the conviction, in United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir. Mar. 27, 2009) (No. 08-50130)
A recent Ninth Circuit case highlights the problem of multiple hearsay in business or public records, under FRE 803(6) and FRE 803(8). Normally, there is no hearsay problem where the preparer is under a duty to verify the accuracy of the information reported. However, other statements contained in a business or public record may be inadmissible unless there is an independent basis to admit the statement.
In the case, defendant Marguet-Pillado was convicted for being a removed alien who was found in the United States. He claimed he held derivative citizenship and was a citizen of the United States. The government claimed he was a Citizen of Mexico. At a bench trial, the government introduced an application for permanent resident status from his immigration A-File. The application was completed by Michael Marguet, who was not his biological father but his step father. Because the defendant was five years old at the time, the application was completed signed by his step father. In the application, the step father declared that the defendant was a Mexican citizen and born in Mexico. The government offered the application to show the defendant was not a citizen of the United States. The trial court denied the defense motion to exclude the application on Confrontation Clause and hearsay grounds. The defendant was convicted and sentenced.
On appeal, the Ninth Circuit readily dismissed the defense argument that the admission of the application violated the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004). There was no Confrontation Clause issue because the statements in the application were non-testimonial. The Ninth Circuit applied prior precedent to reach this conclusion. See United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (concluding a “warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter”; concluding a notation on the warrant concerning the removal of the alien was not testimonial). The Ninth Circuit explained that the application was non-testimonial:
“[The application] was merely a statement of facts designed to have the government agree to receive [defendant] Carlos Marguet as a permanent resident -- in other words, it was just the setting out of what [stepfather] Michael Marguet saw as noncontroversial factual information regarding Carlos Marguet. It surely was not set forth with an eye to a trial proceeding of any kind. As it was, no criminal proceeding commenced until more than thirty years later. By then Carlos Marguet had resided in the United States for a long time, committed crimes, been removed, and then returned. Surely none of that was in Michael Marguet’s contemplation when he sought to have a little boy admitted into the United States.” Marguet-Pillado, 560 F.3d at 1086.
With the constitutional issue to the side, a separate question was presented concerning the admission of the statement in the application under the hearsay rules. The government argued that the application was admissible as a business or public record. The Ninth Circuit noted that the application, as a record, reflected the government agency activities and “document[ed] the observations of a responsible government officer to some extent.” The record could be admitted “for those purposes” as a public record. The circuit noted that “the only part of the document truly relevant here is [stepfather] Michael Marguet’s hearsay statement that [defendant] Carlos Marguet was born in and was a citizen of Mexico.” Marguet-Pillado, 560 F.3d at 1086. As the declarant, the stepfather was not under a government duty to record the information. [Apparently, the government official receiving the application also did not have a duty to verify this information.] The alternative argument of the government that the business record exception applied suffered from the same problem. The circuit observed:
“In either case, there is at least one more layer of hearsay, and to be admissible there must be an exception for that layer also. However, the government made no attempt in the district court and made no attempt in its brief to argue that the statements of Michael Marguet are admissible as a result of some other hearsay exception. Thus, the government has waived any argument to that effect, and we are constrained to find error in the admission of the statements of Michael Marguet.” Marguet-Pillado, 560 F.3d at 1086.
Finally, the Ninth Circuit concluded that the non-constitutional, evidentiary error was not harmless. Without the application, the evidence was insufficient to establish that the defendant was a citizen of Mexico. Consequently, the conviction was reverse and the case was remanded.
The Marguet-Pillado case highlights the multiple hearsay problem under FRE 805 that occasionally impacts business records under FRE 803(6), or public records under FRE 803(8), Each layer of hearsay must be independently admissible. The business or public record may be admissible to the extent the record reflects the requirements of the rule. However, extraneous statements which are not recorded under a business or public duty, are inadmissible unless a separate exception permits its introduction. The failure to make this showing can be fatal, resulting in reversal of a conviction in Marguet-Pillado.
