Certificates of Non-Existence of Record Are Testimonial for Confrontation Clause Purposes, But That's Not the Silver Bullet You Might Have Hoped For

United States v. Martinez-Rios, No. 08-40809 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)

Think way, way back, to the mists of last July, when the world—well, this blog, at least—was abuzz over whether the Supreme Court's Confrontation Clause decision in Melendez-Diaz v. Massachusetts portended a new dawn of heroic struggle against the ease with which the Government can prove the elements of illegal reentry. It seemed as clear as clear could be that Melendez-Diaz would bar the Government from relying on certificates of non-existence of record to establish the lack-of-permission-to-reapply-for-entry element of illegal reentry. Notwithstanding that clarity, we were technically flying blind until the Fifth Circuit could weigh in one way or the other. But no longer. The era of uncertainty has ended, and the result is mixed.

First, the good news: Martinez-Rios holds that CNRs are testimonial in light of Melendez-Diaz, and that the Supreme Court's decision "implicitly overruled" Rueda-Rivera, the Fifth Circuit's 2005 decision to the contrary. (The Government, to its credit, conceded the point.) The court appears to have read Melendez-Diaz's discussion of a clerk's CNR as dicta, but quite strong dicta that "spoke directly" to the issue with CNR's in illegal reentry cases. The court also pointed to Melendez-Diaz's "reli[ance] on a key distinction between records that are kept in the ordinary course of business and those that are specifically produced for use at trial: The latter are “testimonial” and are at the heart of statements triggering the Confrontation Clause. CNR’s are not routinely produced in the course of government business but instead are exclusively generated for use at trial. They are, therefore, testimonial." Finally, the court recognized that the lab reports at issue in Melendez-Diaz served the same purpose that CNR's serve in illegal reentry cases: to prove an element of the offense. Thus, "Rueda-Rivera is overruled."

But then there's the bad news: the Government may be able to prove the lack-of-consent element BRD even without a CNR. How? Let's start with a look at this case.

Martinez was arrested by a Border Patrol agent who caught him and others hitching a ride on a train in Gardendale, Texas (which is about halfway between Laredo and San Antonio, or—for you hunters out there—between Cotulla and Dilley). At the ensuing illegal reentry trial, the Government introduced Martinez's A-file—which contained a CNR—through a Border Patrol agent. The ICE official who prepared the CNR did not testify; "instead, the prosecutor introduced that evidence through [the Border Patrol agent], who explained how a CNR is processed." Martinez's "counsel objected to the introduction of the CNR on grounds that [the agent] had no personal knowledge of the case and was not the custodian of the records[,"] but did not mention the Confrontation Clause.

And you know what that means for the appeal: plain error review. The error prong is easy:

Under Melendez-Diaz, 129 S. Ct. at 2539, Martinez-Rios’s Sixth Amendment rights were violated. [The ICE official] did not testify at Martinez-Rios’s trial, despite having prepared the CNR. The government introduced the CNR through the testimony of [a Border Patrol agent], who explained how a CNR is ordinarily prepared. [The agent] personally reviewed Martinez-Rios’s A-file but did not conduct a search of any of the computerized databases associated with the CNR. Martinez-Rios was unable to cross-examine the person who had prepared a testimonial statement to be used against him at trial. Therefore, the district court erred in admitting the CNR without providing the testimony of the records analyst.

The error looks pretty plain, too, although the court skipped past that to the affected-substantial-rights prong, which requires a defendant to show "'a reasonable probability that, but for [the Confrontation Clause violation], the result of the proceeding would have been different.'" The Government said "harmless," and the court agreed:

[T]he government introduced ample evidence, other than the CNR, to establish that Martinez-Rios lacked permission to reapply. Blanco testified that he observed three individuals hanging onto the outside of a train northbound from Mexico as it pulled into the station, that he discovered Martinez-Rios hiding in the brush, and that Martinez-Rios admitted that he was from Mexico and had “no documents.” Mireles testified that Martinez-Rios said he was from San Luis Potosi, Mexico, and had crossed into the United States by wading across the Rio Grande, walking through the brush to the Laredo train depot, and boarding a northbound train. Melendez testified that he personally searched Martinez-Rios’s A-file for an I-212 (a form granting permission to enter the United States) but did not find any such document. In the face of all that testimony, even if the CNR was not entered into evidence, there was no reasonable probability that Martinez-Rios would have been acquitted.

"Okay," you say. "Big deal. I'll make sure to object on Confrontation Clause grounds. If the CNR stays out, I've got my Rule 29 motion. If that's overruled, I've got sufficiency to argue on appeal. If the CNR comes in, I'll have preserved the confrontation error, and on appeal the Government will have to show it was harmless beyond a reasonable doubt." All true. But will that make any difference?

Note that, in addition to the evidence summarized above, the court cited as support for its substantial-rights finding three court decisions applying the harmless error standard to the same question presented here. In one of those, an unpublished decision from the Second Circuit, the court found the error harmless because the defendant/alien admitted on cross-examination at trial that she had not applied for permission to reapply for entry. That's not your run-of-the-mill illegal reenty trial testimony, to be sure. But look at the other two decisions the court cites: two orders from the same judge denying motions for new trial based on the confrontation violation. In both cases, the evidence was very similar to that in Martinez-Rios: testimony from a Border Patrol agent that a search of the alien's A-file and relevant databases did not turn up the required permission, and the defendant's admission at the time of arrest that he was either present in the U.S. illegally or had not applied for permission to reapply for entry. (Martinez-Rios also cites an unpublished Tenth Circuit decision finding the evidence insufficient to support a conviction absent the CNR, but that appears to have been all the Government relied on. Plus, the court remanded for retrial in order to allow the Government to provide a foundation for the CNR.)

Of course, absent a specific factual scenario, it's impossible to say for sure how things would play out on a Rule 29 motion, motion for new trial, or an appeal raising sufficiency or a preserved Confrontation Clause violation. The point to take away, though, is that while Martinez-Rios is great on the confrontation issue, you can't simply assume that keeping out a CNR will automatically be fatal to the Government's case in an illegal reentry trial. You'll have to consider all the other direct and circumstantial evidence of lack-of-permission that the Government may introduce, along with legal and factual challenges to that evidence, and arguments for insufficiency notwithstanding such evidence. In other words, just like most any other case.