Federal Evidence Review

After the Ninth Circuit affirmed the defendant's conviction for possession of cocaine base with intent to distribute, the defendant sought review at the Supreme Court of his contention that his Sixth Amendment right to confront his accusers had been denied when the trial court admitted a Certificate of Nonexistence of Record (CNR). The Supreme Court granted the defendant's certiorari petition, vacated the judgment, and remanded the case for further consideration in light of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). On remand, the circuit again affirmed the defendant's conviction, finding that the use of the CNR was harmless error in light of the government's concession that the CNR had violated the defendant's Sixth Amendment rights, in United States v. Norwood, 595 F.3d 1025 (9th Cir. February 17, 2010) (No. 08-30050)

On February 1, 2010 the Federal Evidence Blog noted that the Fifth Circuit overturned its precedent by concluding that Certificates of Nonexistence of Record (CNRs) are “testimonial” since they are “not routinely produced in the course of government business but instead are exclusively generated for use at trial,” in United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. Jan. 28, 2010) (No. 08-40809) (per curiam). The blog suggested that Martinez-Rios was among the first in a likely retreat by the circuits from their embrace of the use of CNRs. The Ninth Circuit recently joined the retreat from CNRs, as illustrated in a case remanded to it to consider in light of the Confrontation Clause decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009).

In the Ninth Circuit case, defendant Norwood was arrested for possession of cocaine base with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime. At the time of his arrest, the defendant had $2500 in his pocket and $7000 in his car. During his trial, the prosecutor used this evidence in an effort to show that the defendant's drug possession was not for personal use. Accordingly:

“As part of its case-in-chief, the government presented an affidavit prepared by Jodi Arndt, an employee at the Washington Department of Employment Security, which certified that 'a diligent search of the department's files failed to disclose any record of wages reported for [Norwood] from January 1, 2004 through March 31, 2007.' Although Arndt did not appear in person to testify, the court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.”

Norwood, 595 F.3d at 1028-29.

Norwood's conviction and sentence were affirmed by the Ninth Circuit. United States v. Norwood, 555 F.3d 1061 (9th Cir.2009) (No error in admitting the CNR because “[t]he affiant here prepared a CNR indicating that there was no record that Norwood had received taxable wages for the period in question. Such a record would have been among the business records of the Washington State Employment Security Department kept in the ordinary course of business, if Norwood had been legally employed in Washington during that time. Under the reasoning of [United States v. ]Cervantes-Flores, [421 F.3d 825, 831 (9th Cir. 2005)] the CNR in this case is not testimonial and is admissible under the Sixth Amendment.”).

The defendant sought a writ of certiorari at the United States Supreme Court, arguing that admission of the CNR had violated the Crawford Confrontation Clause decision. The Supreme Court granted the defendant's certiorari petition, vacated the judgment, and remanded the case for further consideration in light of its recently decided case of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009).

In taking up Norwood's case on remand, the circuit noted that the government had conceded that the CNR had violated the defendant's right to confrontation and proceeded instead to a harmless error analysis of the original trial. As explained by the circuit:

“The Supreme Court has yet to define the full extent to which rights under the Confrontation Clause are applicable to testimonial and nontestimonial statements. However, in Melendez-Diaz, the Court provided additional guidance, concluding that “certificates of analysis” verifying the identity of a contraband chemical substance are testimonial under Crawford, 129 S.Ct. at 2531, 2532. Quoting Crawford, the Court explained that the 'certificates of analysis' (which are 'quite plainly affidavits') are 'incontrovertibly a solemn declaration or affirmation made for the purpose of establishing or proving some fact' and 'functionally identical to live, in-court testimony.' Id. (internal quotation marks omitted). Accordingly, Melendez-Diaz held that such affidavits are inadmissible unless the affiant testifies at trial, or is unavailable at trial but had earlier been available for cross-examination. Id.

“In this case, the government concedes that under Melendez-Diaz, Washington Department of Employment Security Assistant Records Officer Jodi Arndt's affidavit, prepared for use at Norwood's trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without Arndt presenting herself at trial for examination.

“In light of the government's concession that admission of Arndt's affidavit violated Norwood's Sixth Amendment rights, we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence was harmless. Chapman, 386 U.S. at 24, 87 S.Ct. 824.”

Norwood, 595 F.3d at 1030.

In assessing whether the constitutional error in admitting the CNR was harmless the circuit concluded that the government had met its burden. “Unlike the affidavit in Melendez-Diaz,” noted the circuit, the CNR affidavit in Norwood's case “was not offered to prove an element of the offense, nor was it the sole evidence of any relevant fact. Rather, the testimony provided by the disputed affidavit was not particularly important to the case, and was cumulative. ” Norwood, 595 F.3d at 1030. The circuit noted in particular that the amount of cash and defendant's storage arrangements strongly implied that the money did not come from a legal source. In addition, the jury heard the defendant's girlfriend testify that the defendant almost never left the house during the day and received no paychecks from any regular employment. Indeed, the only employment the defendant seemed to have was to do occasional cleaning of rental units where he lived. Evidence of this sort convinced the circuit that even “disregarding the [CNR] affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.”

Norwood, 595 F.3d at 1031.

The February 1 blog on the Fifth Circuit's decision in Martinez-Rios suggested it was a model for how many circuits would come to grapple with the application of the Supreme Court Confrontation Clause precedents. “Initially, the Fifth Circuit had held, along with other circuits, that CNRs were not testimonial," the February 1 blog noted. But "based on the more recent guidance in Melendez-Diaz, the Fifth Circuit reached the opposite conclusion.” As Norwood demonstrates, the process has begun whereby circuits that previously held that CNRs were not testimonial would be reassessing that conclusion. But Norwood also suggests that even with this retreat on use of the CNRs, it will still be hard for a defendant whose right to confrontation was violated to overcome the impact of what ultimately may prove to be a harmless error.