Are Certificates Of Authentication For Foreign Public And Business Records Non-Testimonial?

In mail and telemarketing fraud trial of creator of companies "that targeted elderly victims in the United States," with fraudulent schemes, admitting certificates of authentication for the foreign public and business records regarding defendant's enterprises as the certificates were not testimonial under the Confrontation Clause; the certificates purpose "was merely to authenticate the records, and not to establish or prove some fact at trial," in United States v. Anekwu, __ F.3d __ (9th Cir. Sept. 20, 2012) (No. 10–50328)

Last month the Ninth Circuit addressed whether “[t]he long-accepted practice of authenticating copies of documents by means of a certificate from the document's custodian stating the copy is accurate” violates the Confrontation Clause - "an issue of first impression" which the Circuit addressed in the context of foreign public and business records. The Ninth Circuit joined the Tenth Circuit, agreeing that where “the purpose of the certificates ... was merely to authenticate the ... records—and not to establish or prove some fact at trial....” it could not be excluded as testimonial, violating the Confrontation Clause. Anekwu, __ F.3d at __ (quoting United States v. Yeley–Davis, 632 F.3d 673, 680 (10th Cir.), cert. denied, 131 S.Ct. 2712 (2011).

In the Ninth Circuit case, defendant Anekwu was indicted for mail and telemarketing fraud in connection with his ownership and operation of Canadian lottery companies that targeted "elderly victims" in the United States. The defendant was extradited to the United States and during his trial, as part of its case the prosecution "sought to introduce foreign business and public records pursuant to 18 U.S.C. § 3505 and Federal Rules of Evidence 803 and 902. The records consisted of incorporation records for [defendant's lottery companies] Capital and Platinum, Canadian bank records, and mailbox applications, linked to Anekwu." The government alleged that the defendant's Canadian enterprises involved telemarketers who would call U.S. elderly victims and "falsely represent" that the victim had won a lottery and that once the victim mailed certain payment for "taxes and costs to Anekwu ... [at] his companies" through "various commercial mailbox addresses in Vancouver, Canada" a victim would receive his or her supposed winnings. Anekwu, __ F.3d at __

After the defendant's conviction, he appealed to the Ninth Circuit, raising the issue of whether the court had erred by "by admitting certificates of authentication for foreign public and business records by means of affidavit in violation of the Confrontation Clause" - which the government used to show the connection between the defendant and the lottery scheme. The defendant's claim of error was important in the Ninth Circuit because:

The Supreme Court has not specifically addressed whether admitting certificates of authentication for documents violates a defendant's Confrontation Clause rights. Melendez–Diaz v. Massachusetts, 557 U.S. 305, 336–37 (2009) (Kennedy, J., dissenting). We have not previously dealt with the issue of whether certifications of foreign public records are”testimonial,” making the custodians who created the certifications “witnesses” subject to the defendant's Sixth Amendment right of confrontation. However, we have concluded that routine certifications of domestic public records are not testimonial. United States v. Weiland, 420 F.3d 1062, 1077(9th Cir.2005). We have not addressed whether certificates of authenticity for business records are testimonial. [T]here is no controlling authority on point, and ... our cases indicate that the admission of the certificates of authentication did not violate the Confrontation Clause.
Anekwu, __ F.3d at __ .

After reviewing the changing interpretation of the Confrontation Clause since the decision in Crawford v. Washington, the circuit explained what the proffered evidence was and why it was not testimonial in nature:

[T]he incorporation documents are foreign public records. The certificates of the incorporation documents certify that the documents are true copies and that the person certifying the documents is the custodian. The certificates name the company and the date dissolved in order to specify the company to which the certificate applies. This information does not interpret what the records contain or certify their substance or effect. The certificates do not “ create a record for the sole purpose of providing evidence against a defendant.”
Anekwu, __ F.3d at __ (emphasis added; footnote omitted) (citing Melendez–Diaz v. Massachusetts, 557 U.S. 305, 323 (2009). In particular, the Ninth Circuit noted that a previous case it had resolved in 2005 "seem[ed] to indicate that a routine certification by the custodian of a foreign public record would not be testimonial in nature. If so, the certificates for the incorporation documents would not violate the Confrontation Clause." Anekwu, __ F.3d at __.

The Ninth Circuit found that the certificates of authentication for foreign public and business records by means of affidavit did not violate the Confrontation Clause. It noted that this matter had been previously addressed by the Tenth Circuit by the case of United States v. Yeley–Davis, 632 F.3d 673 (10th Cir. 2011), which

dealt with certificates of authentication of cell phone records. Id. at 680. The Tenth Circuit held that “certificates of authenticity presented under [Federal Rule of Evidence] 902(11) are not testimonial.” Id. (citing United States v. Ellis, 460 F.3d 920, 927 (7th Cir.2006)). “Because the phone records here were ‘created for the administration of [Verizon's] affairs and not for the purpose of establishing or proving some fact at trial’ we conclude that they were not testimonial and thus, not subject to confrontation.” Id. at 679 (quoting Melendez–Diaz, 557 U.S. at 324). The Tenth Circuit invoked the Supreme Court's distinction “between affidavits created to provide evidence against a defendant and an affidavit created to authenticate an admissible record.” Id. at 680(citing Melendez–Diaz, 557 U.S. at 322–23).
Anekwu, __ F.3d at __.

In Anekwu, the Ninth Circuit was able to explore an approach to the matter of certifications in evidence and also to draw a distinction of the records involved in the defendant's case with the certifications which were testimonial. It explained that because the records involved here "were not substantive evidence against" the defendant, it was hardly testimonial since the function of the certification was merely to authenticate a record, not to prove the truth of the matter stated in the record


Federal Rules of Evidence