Melendez-Diaz, Illegal Reentry, and Certificates of Non-Existence of Record

As promised, here's a post explaining how the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law that permitted the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases.

Just to make sure we're all on the same page, let's review exactly what a CNR is. Here's how one was described in the Fifth Circuit's decision in United States v. Rueda-Rivera, 396 F.3d 678 (2005):

The CNR was signed by Ruth E. Jones, who was identified as “the Chief in the Records Services Branch, Office of Records, Headquarters, of the Immigration and Naturalization Service, United States Department of Justice.” In the CNR, Jones declared that, pursuant to § 290(d) of the Immigration and Nationality Act and 8 C.F.R. § 1-3.7(d)(4), she was “authorized to certify the nonexistence in the records of the Service of an official file, document, or records pertaining to specified persons or subjects.” The CNR reflected that the INS maintains centralized records relating to immigrant aliens who entered the United States on or after June 30, 1924, and to nonimmigrant aliens who entered on or after June 30, 1948. Additionally, the INS maintains a centralized index of all persons naturalized on or after September 27, 1906. Jones further declared that, “after a diligent search no evidence [was] found to exist in the records of the Immigration and Naturalization Service of the granting of permission for admission into the United States after deportation or exclusion relating to File No. A-72 209 927, Oscar Rueda Rivera . . . .”

In Rueda-Rivera, the Government introduced the CNR through a Border Patrol agent who knew nothing about how the records search was done, or what the Records Chief had done to prepare the CNR.

Sure looks like like a Confrontation Clause violation under the Crawford v. Washington formulation: an out-of-court testimonial statement offered against the defendant, without any showing that the witness is unavailable, and without the defendant having had a prior opportunity for cross-examination. And Crawford identified trial by ex parte affidavit as the "paradigmatic confrontation violation[.]"

But that's not what Rueda-Rivera held. Latching on to some Crawford dicta suggesting that business records are not "testimonial" for Confrontation Clause purposes, Rueda-Rivera adopted the following reasoning from an unpublished Fifth Circuit opinion:

We likened an immigration file to business records and concluded that the file contained statements that by their nature were not testimonial. Accordingly, we held that the introduction into evidence of the immigration file did not run afoul of Crawford and that the district court properly relied on official, non-testimonial public records admissible under the Federal Rules of Evidence, in determining that the defendant was a previously deported alien found in the United States without permission.

The CNR admitted into evidence in this case, reflecting the absence of a record that Rueda-Rivera had received consent to reenter the United States, does not fall into the specific categories of testimonial statements referred to in Crawford. We decline to extend Crawford to reach such a document.

The obvious flaw in Rueda-Rivera's reasoning is that a CNR is not a public record under FRE 803(8)(B), which "exclud[es] . . . in criminal cases matters observed by police officers and other law enforcement personnel[.]"

Fortunately, Melendez-Diaz addresses this very point, and rejects Rueda-Rivera's reasoning. In response to the State's argument that lab reports "are admissible without confrontation because they are 'akin to the types of official and business records admissible at common law[,]'" the Court pointed out that the reports

do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless.

Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. . . . The analysts’ certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).

(emphasis added). Ah, but what about a clerk's certificate authenticating a document?

The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk’s authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” The dissent suggests that the fact that this exception was“‘narrowly circumscribed’” makes no difference. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.

(cites omitted; emphasis added). And that last part is the key. In a passage that almost reads as a direct rebuke to Rueda-Rivera, the Court goes on to say:

Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].

Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.” Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but 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. Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

(citations omitted; emphasis added). As you can see, these portions of Melendez-Diaz completely eviscerate Rueda-Rivera's reasoning. There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[.]"

Okay, so where do we go from here? Given the sheer number of illegal reentry prosecutions, it's obvious that the chief records custodian of whatever agency it is that maintains the relevant records can't possibly be available to testify should a sufficient number of illegal reentry cases proceed to trial. And yet, a CNR won't cut it, if a defendant objects to its admission. So conceivably, if enough defendants charged with illegal reentry demand a trial, the Government will be unable to prove its case in most instances.

But lets assume that the Government makes someone other than the records chief available to testify concerning the lack-of-permission-to-reapply element. There's still ways to attack the element. The witness may not have sufficient knowledge of the record-keeping procedures to prove beyond a reasonable doubt that the defendant lacked the necessary permission to reenter. For that matter, if the witnesses lack of knowledge on such points is bad enough, the Government may not even be able to establish the predicate for admissiblity under FRE 803(10). There's also the possibility that the relevant records are in such a mess that, even with the testimony of a knowledgeable witness, there's still room for a lack-of-proof defense.

In sum, while the effect of Melendez-Diaz on CNR admissibility is clear, the broader ramifications for illegal reentry prosecutions are not. There's always the possbility that the Government will still fight to admit a CNR, meaning that you'll have to litigate the issue. If the Government brings in a witness, you'll have to be prepared for cross-examination both as to the hearsay-exception predicate and with an eye to a failure-of-proof defense. Of course, all this will take a while to shake out, meaning that the effect of Melendez-Diaz on plea negotiations, the decision whether to go to trial, and client advice is even murkier than its effect on trial practice. In the meantime, anyone handling illegal reentry cases will need to pay close attention to these issues.