Red Check Mark Verifications Were Not Testimonial

In prosecution for making false statements and unlawfully applying for naturalization, First Circuit considers whether “red check marks” verifying the responses of the defendant were admissible under the Confrontation Clause and any hearsay exception, in United States v. Lang, _ F.3d _ (1st Cir. Feb. 16, 2012) (No. 10-1353)

A recent First Circuit considers the tension between government forms completed in an administrative capacity or for a law enforcement purpose under the Confrontation Clause and the public records hearsay exception.

District Court Proceedings

In the case, defendant Lang was prosecuted for making false statements and unlawfully applying for naturalization. He was charged with falsely answering in the negative each of these questions on his Application for Naturalization form (N-400) and Notice of Naturalization Oath Ceremony (Form N-445):

Q15 (N-400): “Have you ever committed a crime or offense for which you were not arrested?”
Q22c (N-400): “Have you ever sold or smuggled controlled substances, illegal drugs or narcotics?”
Q2 (N-445): “Have you been arrested, cited, charged, indicted, convicted, fined or imprisoned for breaking or violating any law or ordinance, including traffic violations?”

The defendant admitted a prior arrest for driving while intoxicated and failing to pay a fine. However, he failed to disclose that he had a prior conviction for trafficking in cocaine. He also did not disclose an arrest for distributing cocaine and amphetamines after his naturalization interview and before his oath ceremony. At trial the government, introduced the naturalization application form (N-445) which included the defendant’s responses and red check marks indicating a Citizenship and Immigration Services (CIS) Officer had verified each response as required.

The defendant claimed that his Confrontation Clause rights were violated since the officer did not testify at trial subject to cross-examination. The trial court overruled the objection by concluding the form was not testimonial under the Confrontation Clause as a public record. A supervisor testified that “[t]he red checkmark next to the applicant's response demonstrates the CIS agent's compliance with the administrative protocol and the form is kept permanently in every applicant's file.” Lang, _ F.3d at _. After the defendant was convicted as charged by the jury, on appeal he challenged the admission of the naturalization application form.

Confrontation Clause

The First Circuit agreed that the check mark answers were part of “a non-testimonial public record produced as a matter of administrative routine, for the primary purpose of determining Lang's eligibility for naturalization.” Lang, _ F.3d at _ (citing Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009) (stating that business and public records "are generally admissible absent confrontation . . . because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial"); United States v. García, 452 F.3d 36, 41-42 (1st Cir. 2006) (holding that admission of warrant of deportation was not in error because document did not constitute testimonial hearsay under Crawford)).

The First Circuit also noted a consensus in other circuits that many immigration documents were not testimonial:

Fifth Circuit: United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th Cir. 2006) (warrants of deportation were not testimonial under Crawford); United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985) (admitting warrant of deportation as reliable since the official preparing the warrant had no motivation to do anything other than "mechanically register an unambiguous factual matter")
Ninth Circuit: United States v. Bahena-Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (same), cert. denied, 547 U.S. 1056 (2006)
Eleventh Circuit: United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (warrant of deportation not testimonial because it was "recorded routinely and not in preparation for a criminal trial") (citation and internal quotation marks omitted)

Hearsay: Public Record Exception

After concluding there was no Confrontation Clause issue, the circuit turned to the separate question of whether the naturalization form included hearsay. There was no dispute that the defendant’s responses were admissible as statements offered against a party opponent, under FRE 801(d)(2)(A). The admissibility question concerned the remainder of the form including the red check marks verifying the defendant’s responses since the verifying officer did not testify.

The defendant argued in part that the public records exception did not apply based on a “law enforcement exception, which precludes the admission of public records in criminal cases for matters observed by police officers and other law enforcement personnel” under FRE 803(8)(A)(ii). The circuit found it unnecessary to consider the law enforcement exclusion. Even assuming arguendo the status of the officer as a law enforcement official, “the present case concerns the introduction of documents related to an administrative proceeding for purposes of determining qualifications for naturalization.” As the circuit explained:

The circumstances presented here certainly are not the "adversarial circumstances which might render a law enforcement officer's observations unreliable." [United States v. Dowdell, 595 F.3d 50, 70 (1st Cir. 2010)] (quoting United States v. Union Nacional de Trabajadores, 576 F.2d 388, 391 (1st Cir. 1978) (internal quotation marks omitted)). Instead, form N-445 is "ministerial, non-adversarial information" and is therefore "admissible under Rule 803(8)[(A)(ii)], notwithstanding its documentation at the hands of law enforcement personnel." Id. at 72. While it is true that criminal charges can result, if, as is the case here, false evidence is elicited on the form, criminal charges are not the primary purpose of the administrative proceedings surrounding an application for naturalization. There was no abuse of discretion.

Lang, _ F.3d at _.

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