Eighth Circuit On Conviction Record As Testimonial Hearsay

In trial for making a materially false immigration statement, Bosnian judgment convicting the defendant for murder after trial in absentia should not have been admitted as proof that the defendant committed crime of which he stood convicted in Bosnia; because the prosecution used the Bosnian judgment as proof that the defendant lied to immigration officials when he said that he had not killed anyone, the judgment was testimonial and could not be admitted unless witnesses were shown to be unavailable or that the defendant had a prior opportunity for cross-examination, in United States v. Causevic, 636 F.3d 998 (8th Cir. April 22, 2011) (No. 09–3611)

Last week in "When Is A Court-Clerk's Conviction Report Testimonial?" the Federal Evidence Blog covered a case in which the D.C. Circuit clarified how the rule in Melendez-Diaz_v._Massachusetts was applied, suggesting a bit more about the division between the non-testimonial use of a public record and testimonial use of the public record as proof of the events underlying that record. On the day after this blog post appeared, the Eighth Circuit took up a similar question, disposing of it is a manner similar to the D.C. Circuit, although one member of the Eighth Circuit panel concurred and articulated a different method of analysis in determining that the record of a defendant's prior conviction was a testimonial document subject to the Confrontation Clause under Crawford

In the case, alien defendant Rasim Causevic, came to the U.S. as a refugee from the Yugoslavian Civil War. A decade later he filed an application for permanent resident status, but did not complete the process for another three years. In doing the background check on the defendant's application, Immigration "obtained a report from the International Police (... Interpol ...) that a 'Rasim Causevic' was wanted in Bosnia–Herzegovina for murder, that the crime had occurred during the civil war in the former Yugoslavia, and that it involved the killing of a soldier in 'Rasim Causevic's' unit." After initial inquiry by immigration authorities, the defendant "confirmed that he was the person named in the document but denied committing the crime." However, he later admitted that in 1995, “I shot in body six bullets,” and that the victim “died after about two minutes.” Mr. Causevic asserted that did not know what else to do because the man was coming toward him with a knife. He added that he was taken from the scene, “put ... downtown for three days,” and then transferred to a unit with about three hundred other people until the jail was unlocked and everyone left." Causevic, 636 F.3d at 1001.

"During trial for making false statements, the defendant "objected to the admission of [the] Bosnian judgment convicting him of murder following a trial in absentia; the judgment (translated into English) recited that Mr. Causevic had committed murder by firing six bullets at a man at close range while they were serving in what it called an independent army of West Bosnia. The district court concluded that the judgment was not testimonial and thus its admission would not violate Mr. Causevic's right to confront the witnesses against him." The defendant was convicted and he appealed, charging that he had been denied his Confrontation Clause rights.

The defendant challenged the use of the Bosnian judgment as substantive proof of an element of the charged crimes. He argued that his Sixth Amendment right to conforntation was violated because the government introduced the Bosnian murder conviction as proof that he killed someone, which he had denied. The government acknowledges that it relied on the conviction to show, contrary to Mr. Causevic's CIS interview and related written statement, that he had fatally shot a man before coming to the United States.

The Eighth Circuit reversed and remanded the case for a new trial after finding that the use of the Bosnian conviction to satisfy elements of the federal crime of making false statements (rather than to simply show a record of conviction) is testimonial hearsay, subject to the Confrontation Clause. In addition, this error was not harmless in the defendant's case, entitling him to reversal of the district court proceedings. This was the essential implications drawn from Crawford and its progeny - that a defendant "has the right to confront those who 'bear testimony' against him. Therefore a witness may not give “testimony against a defendant” without appearing at trial, unless that witness is unavailable and the defendant had previously had an opportunity for cross-examination. Causevic, 636 F.3d at 1002 (citing Crawford v. Washington, 541 U.S. 36, 51 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 2531 (2009))

The Circuit did not think confusion about the defendant's Bosnian conviction was unreasonable. But the Eighth Circuit discerned a growing consensus on the application of the Confrontation Clause. As explained by the majority:

At first blush, it seems that the Bosnian judgment, as a public record, differs significantly from Crawford's examples of testimonial statements, as well as the analysts' reports at issue in Melendez–Diaz, which the Court emphasized were created specifically for use at the defendant's trial for cocaine distribution, and identical to testimony that the analysts would have given had the government called them as witnesses. And the Ninth Circuit, in a case that the government relies on, has stated that “it is undisputed that public records, such as judgments, are not themselves testimonial [and] do not fall within the prohibition established ... in Crawford.... We agree with the [Ninth Circuit] that criminal judgments may be admitted to show that a defendant has a prior conviction without violating the Confrontation Clause. But the defendant here challenges the government's use of a conviction for a significantly different purpose, namely, to show that he in fact committed the crime of which he was convicted. This is a difference that makes for a legal distinction.
Causevic, 636 F.3d at 1002 (citing United States v. Weiland, 420 F.3d 1062, 1076–77 (9th Cir. 2005) (concluding in felon in possession of a firearm trial, that the defendant's argument that he had a Sixth Amendment right to cross-examine those attesting to the authenticity of his prior convictions had merit)).

The Eighth Circuit noted a century-old Supreme Court case continued to have vitality in this connection. This was the case of Kirby v. United States, 174 U.S. 47, 60 (1899), which was "cited ... favorably in two post- Crawford cases: Melendez–Diaz, 129 S.Ct. at 2534, and Davis v. Washington[, 547 U.S. 813 (2006)]." In Kirby the Supreme Court found that "it was 'fundamental error' for the trial court to admit evidence of the convictions," observing that when a “conviction” is an element of a crime, a record of conviction is admissible to show the fact of conviction because “a fact of that nature could only be established by a record.” But such a record should not be used to prove that the property the defendant received “was actually stolen from the United States.” According to the Circuit, Kirby "held that admitting the convictions in this circumstance violated the defendant's Sixth Amendment right to confront the witnesses against him, “[o]ne of the fundamental guaranties of life and liberty”; the defendant had had no opportunity or right to confront the witnesses who testified against the man convicted by a jury or the two men who pleaded guilty to the crime." Causevic, 636 F.3d at 1003 (citing Kirby v. United States, 174 U.S. 47, 54-55 (1899)).

The Circuit concluded its analysis, finding that defendant Causevic's right to confrontation had been violated:

It is apparent to us that the Court in both Davis and Melendez–Diaz endorsed the continuing validity of the Kirby decision, and made plain that the judgments of conviction in that case were testimonial, as the Court has used that term to determine when a defendant has a right to be confronted by adverse witnesses. Thus we conclude that “testimonial evidence” encompasses not only “prior testimony that the defendant was unable to cross-examine,” Crawford, 541 U.S. at 51–52, but also judgments of conviction based on trials during which the defendant was unable to cross-examine, when those convictions are used as proof of facts underlying the crime charged.

Following the same reasoning, we conclude that the Bosnian judgment at issue here was testimonial because the government used it as evidence that Mr. Causevic had lied when he said that he had not killed anyone. Mr. Causevic obviously had no opportunity at his false-statements trial to cross-examine the witnesses against him in his murder trial. The admission of the testimonial evidence therefore violated the Confrontation Clause unless the witnesses were “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” But the government argued only that the judgment was non-testimonial and made no effort to show that the witnesses were unavailable; this failure alone precludes admissibility. The government also made no showing that Mr. Causevic had a prior opportunity for cross-examination. We know that he was absent during his murder trial, and the government provided no basis for concluding that he would have had a right of cross-examination even if he had been there: It did not explain how the Bosnian justice system operated at the time of the murder trial or, more specifically, show that defendants had a right of cross-examination in that system. Although the record reflects that Mr. Causevic had an attorney in the murder case, we cannot tell from the record if the lawyer cross-examined witnesses, or even had the right to do so. In the circumstances, the judgment based on the murder conviction was admitted in violation of the Confrontation Clause.
Causevic, 636 F.3d at 1004 (citing Crawford, 541 U.S. at 53–54, United States v. Turning Bear, 357 F.3d 730, 738 (8th Cir. 2004) (as proponent of the evidence, the government had the burden to show its admissibility)).

In a concurrence, Circuit Judge Shepherd noted his agreement but used a different approach to the testimonial hearsay problem:

I ... concur with the court's conclusion that the admission of Mr. Causevic's prior conviction violated his right to confront the witnesses against him. I disagree, however, with the method of analysis used by the court in determining that the record of Mr. Causevic's prior conviction is a testimonial document subject to the Confrontation Clause. I believe the record of conviction is testimonial not because of the reason it was introduced at trial, but because it contained statements that were made specifically to be used against Mr. Causevic in a prior trial.
Causevic, 636 F.3d at 1007 .


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