Admitting 40-Year-Old Affidavit of Deceased Grandmother Violated Confrontation Clause

United States v. Duron-Caldera, No. 12-50738 (Dec. 16, 2013) (Higginbotham, Owen, Higginson)

The panel vacates Duron’s conviction and remands after finding that the district court’s admission of his deceased grandmother’s affidavit violated his Confrontation Clause rights.  Duron went to trial on an illegal reentry charge with the defense that the Government could not prove beyond a reasonable doubt that he did not derive citizenship through his U.S. citizen mother. 

At trial, the Government introduced over Duron’s objection a 40-year-old affidavit signed under oath by his now deceased grandmother in connection with an investigation into document fraud.  In that affidavit, the grandmother accuses others of falsely registering her daughter’s (Duron’s mother) birth in Texas.  The district court overruled the objection finding that the affidavit is nontestimonial because it was not created to accuse Duron in his illegal reentry trial.

On appeal, the panel finds that the district court erred by admitting the affidavit because the Government did not meet its burden of establishing that the affidavit was nontestimonial.  First, the Government argued that the affidavit was nontestimonial because it was created primarily for providing evidence for immigration, not criminal, proceedings.  The panel finds, however, that the Government did not provide conclusive evidence that the affidavit was not created for the primary purpose of providing evidence for a later criminal trial. 

Second, the Government argued that the affidavit is nontestimonial because it was not prepared for that particular prosecution of Duron.  After reviewing Williams v. Illinois, 132 S. Ct. 2221 (2012), the Confrontation Clause, and other precedent, the panel concludes that the Government’s proposed “accusation test” construes the Confrontation Clause too narrowly because it does not address the witness-related reliability concerns. 

Given the circumstances of the affidavit and the jury’s initial deadlock (suggesting it seriously considered Duron’s derivative-citizenship defense), the panel concludes that the Government did not prove that the district court’s error was harmless beyond a reasonable doubt.