Federal Evidence Review

In applying Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), the Fifth Circuit overturns prior precedent after concluding that the CNRs are “testimonial” since they are “not routinely produced in the course of government business but instead are exclusively generated for use at trial”; case may now call into question earlier decisions in other circuits, in United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. Jan. 28, 2010) (No. 08-40809) (_per curiam_)

The boundaries of the Confrontation Clause analysis continue to be illuminated since the landmark 2004 decision in Crawford v. Washington, which candidly recognized that key issues were yet to be resolved. See 541 U.S. 36, 68 & n.10 (2004) (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’”; noting “that our refusal to articulate a comprehensive definition in this case will cause interim uncertainty”). Last year, in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), the Supreme Court held that certificates of forensic analysis are “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” A recent decision in the Fifth Circuit shows how the circuits continue to apply the emerging Supreme Court precedent, including revisiting their own recent Confrontation Clause decisions.

In the case, the defendant was prosecuted for illegally reentering the country after he was seen hanging from the side of a train which was passing by an inspection station and ultimately arrested. He was charged with illegal reentry after deportation. As one element of proof, the government had to show “he had not received consent to reapply for admission or demonstrated that such prior consent was not required.” At his trial, the government introduced a Certificate of Nonexistence of Record (“CNR”) which indicated that “after a diligent search was performed in these database systems, no record was found to exist indicating that [the defendant] obtained consent” to reenter the country. The analyst who prepared the certificate did not testify at trial. The defendant did not object during the trial to the CNR based on Confrontation Clause grounds. The defendant was convicted.

On appeal, for the first time, the defendant claimed that his Confrontation Clause rights were violated since he was unable to cross-examine the analyst about the CNR. The defendant noted that the Fifth Circuit had previously found no Confrontation Clause violation by the introduction of a CNR. See United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005) ( in prosecution for being found in the United States after deportation and removal, concluding Certificate of Nonexistence of Record to show neither the Attorney General nor the Secretary of the Department of Homeland Security consented to the defendant’s presence in the country as non-testimonial under Crawford v. Washington ). However, the defendant claimed Rueda-Rivera no longer controlled after Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009).

Applying Melendez-Diaz

In addressing this constitutional issue, the Fifth Circuit considered the continued vitality of Rueda-Rivera after Melendez-Diaz. The issue was considered under the plain error standard because no trial issue had been lodged.

First, the circuit concluded that CNRs were testimonial because they “are not routinely produced in the course of government business but instead are exclusively generated for use at trial.” Martinez-Rios, 595 F.3d at 586. Second, in applying Melendez-Diaz, 129 S. Ct. at 2539, the circuit held that the introduction of the CNR with the preparer’s testimony violated the Confrontation Clause since the defendant “was unable to cross-examine the person who had prepared a testimonial statement to be used against him at trial.” Martinez-Rios, 595 F.3d at 586.

Other Circuit Decisions

The Fifth Circuit noted that a “majority of our sister circuits” had held CNRs were not testimonial, including:

• United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (concluding “that an alien’s warrant of deportation and CNR are nontestimonial business records not subject to the requirements of the Confrontation Clause”; “[A] CNR certifies that a government official searched the database of the Department of Homeland Security and failed to find any record permitting a deportee’s return to this country. Although prepared in anticipation of trial, a CNR simply memorializes the contents of the Department database, maintained in the ordinary course of business—or, more particularly, the absence of a certain sort of record in that database.”)

• United States v. Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006) (“Even if a Form 212 existed, BICE would certify that fact and both the certification and the Form would be admissible as official records of the BICE. ... Thus, a CNR, certifying that the Form 212 does not exist, is similar enough to a business record that it is nontestimonial under Crawford and presents no Confrontation Clause concerns.”)

• United States v. Cervantes-Flores, 421 F.3d 825, 833-34 (9th Cir. 2005) (“[W]e note the obvious — that the CNR does not resemble the examples of testimonial evidence given by the Court. ‘Police interrogations’ and ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial’ all involve live out-of-court statements against a defendant elicited by a government officer with a clear eye to prosecution. [The CNR] certification that a particular record does not exist in the INS’s files bears no resemblance to these types of testimonial evidence. We hold that the CNR is non-testimonial evidence under Crawford and thus was properly admitted by the district court”)

• United States v. Salazar-Gonzalez, 458 F.3d 851, 854 (9th Cir. 2006) (Certificate of Non-Existence of Record is not testimonial under Crawford and is admissible as a non-testimonial public record)

The First Circuit had noted the open issue:

• United States v. Earle, 488 F.3d 537, 541 (1st Cir. 2007) (“[W]e do not decide the Confrontation Clause issue because it is not necessary to the decision. On the facts of this case, if there were any error in admitting the CNR, the government has met its burden of showing that any such error was harmless beyond a reasonable doubt.”)

Two circuits had noted that CNRs are testimonial in unpublished decisions:

• United States v. Salinas-Valenciano, 220 F.App’x 879, 883 (10th Cir. 2007) (suggesting that CNRs are testimonial but “reluctant to decide a question of first impression, particularly where it recurs so frequently, in the absence of full adversarial presentation”)

• United States v. Madarikan, No. 08-5589-cr, 2009 WL 4826912 (2d Cir. Dec. 16, 2009) (unpublished) (while the Confrontation Clause was violated by the admission of a Certificate of Nonexistence of Record used in an illegal reentry trial, the error was harmless based on other evidence)

Assessing Plain Error

While the trial court erred in admitting the CNR, the Fifth Circuit nonetheless affirmed the conviction because the defendant failed to show plain error. The circuit concluded that his substantial rights were affected by the CNR because “the government introduced ample evidence, other than the CNR, to establish that [defendant] Martinez-Rios lacked permission to reapply.”

The Martinez-Rios demonstrates how some circuits are grappling with the application of the Supreme Court Confrontation Clause precedent. Initially, the Fifth Circuit had held, along with other circuits, that CNRs were not testimonial. Based on the more recent guidance in Melendez-Diaz, the Fifth Circuit reached the opposite conclusion. One question posed by this recent decision is whether the holdings in other circuit cases which previously held that CNRs were not testimonial will also be reassessed under Melendez-Diaz. For more on the Melendez-Diaz decision, including links to other cases and materials associated with the case, see the Melendez-Diaz Resource Page.