Federal Evidence Review

In illegal reentry after deportation trial, where it was conceded that the defendant’s Confrontation Clause rights were violated by the introduction of the certificate of non-existence of record under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2539 (2009), the error was harmless beyond a reasonable doubt; the admission of a warrant of removal did not violate the Confrontation Clause since it was not testimonial, in United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir. May 26, 2010) (No. 09-50192)

The Fifth Circuit recently held a certificate of non-existence of record violates the Confrontation Clause when introduced without the preparer’s testimony, in United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. Jan. 28, 2010) (No. 08-40809) (per curiam). See Fifth Circuit Concludes Admission Of Certificates Of Nonexistence Of Record Violates The Confrontation Clause. The Ninth Circuit recently considered this same issue, along with whether the admission of a warrant of removal violated the Confrontation Clause.

In the case, defendant Orozco-Acosta was prosecuted for illegally re-entering the United States following removal. At his trial, the government introduced a certificate of non-existence of record indicating that “after a diligent search [of two agency databases,] no record was found to exist indicating that [Orozco-Acosta] obtained consent . . . for readmission in the United States.” Orozco-Acosta, 607 F.3d at 1161. The government also introduced a warrant of removal to show the defendant had been previously ordered removed and deported from the United States. The trial court overruled the defendant’s Confrontation Clause objections to these exhibits. The defendant was convicted. On appeal he renewed in Confrontation Clause claims.

Certificate of Non-Existence of Record

The Ninth Circuit affirmed the admission of the certificate of non-existence of record but only after concluding the error in admitting it was harmless beyond a reasonable doubt. The defendant relied on Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), in which 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.” The government conceded on appeal that the admission of the certificate of non-existence of record violated Melendez-Diaz. Nonetheless, the error was harmless beyond a reasonable doubt since the certificate of non-existence “was cumulative of other evidence”; “the government’s case on the lack-of-permission element was overwhelming, even without the” certificate of non-existence of record; and the defendant “had an adequate opportunity to cross examine the witnesses who testified against him.” Orozco-Acosta, 607 F.3d at 1162.

Warrant of Removal

The admission of the warrant of removal was controlled by prior precedent in United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (concluding a “warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter”; concluding a notation on the warrant concerning the removal of the alien was not testimonial). The circuit concluded that Melendez-Diaz decision did not modify the Bahena-Cardenas opinion. As the Ninth Circuit explained:

“[Defendant] Orozco-Acosta is correct that, post-Melendez-Diaz, neither the warrant’s routine, objective nature nor its status as an official record necessarily immunizes it from confrontation. See Melendez-Diaz, 129 S. Ct. at 2536-40. Bahena-Cardenas’s holding that warrants of removal are nontestimonial, however, also relied upon the fact that warrants of removal are ‘not made in anticipation of litigation,’ but rather to record the movements of aliens. 411 F.3d at 1075. Melendez-Diaz explained that ‘[b]usiness 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.’ 129 S. Ct. at 2539-40 (emphasis added). Thus, far from undermining Bahena-Cardenas, Melendez-Diaz is wholly consistent with Bahena-Cardenas….

“Unlike the certificates of analysis in Melendez-Diaz, neither a warrant of removal’s sole purpose nor even its primary purpose is use at trial. A warrant of removal must be prepared in every case resulting in a final order of removal, see 8 C.F.R. § 241.2; see also 241.3, and nothing in the record or judicially noticeable suggests that more than a small fraction of these warrants ultimately are used in immigration prosecutions.4 Accord United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008) (“The [warrant of removal’s] primary purpose is to memorialize the deportation, not to prove facts in a potential future criminal prosecution.”); United States v. Torres-Villalobos, 487 F.3d 607, 613 (8th Cir. 2007) (“Warrants of deportation are produced under circumstances objectively indicating that their primary purpose is to maintain records concerning the movements of aliens and to ensure compliance with orders of deportation, not to prove facts for use in future criminal prosecutions.”).

“Melendez-Diaz cannot be read to establish that the mere possibility that a warrant of removal—or, for that matter, any business or public record—could be used in a later criminal prosecution renders it testimonial under Crawford. Accord United States v. Mendez, 514 F.3d 1035, 1046 (10th Cir. 2008) (“That a piece of evidence may become ‘relevant to later criminal prosecution’ does not automatically place it within the ambit of ‘testimonial.’ . . . [Otherwise,] any piece of evidence which aids the prosecution would be testimonial and subject to Confrontation Clause scrutiny.”). We accordingly reject Orozco-Acosta’s argument that Melendez-Diaz renders warrants of removal testimonial.”

Orozco-Acosta, 607 F.3d at 1164.

The Orozco-Acosta decision represents another case highlighting the impact of the Melendez-Diaz on certificates of non-existence of record and warrants of removal. For more on the Melendez-Diaz decision, including links to other cases and materials associated with the case, see the Melendez-Diaz Resource Page.