Counsel’s Stipulation to Testimonial Evidence Waived Client’s Confrontation Right Even Absent Evidence that Client Agreed to Stipulation

United States v. Ceballos, No. 13-50786, (5th Cir. June 16, 2015) (Smith, Prado, Owen)  

Ceballos appealed her conviction for “transporting, attempting to transport, and engaging in a conspiracy to transport an alien within the United States” by alleging a violation of her Sixth Amendment right, improper admission of evidence, and that cumulative error deprived her of a fair trial.  The panel rejected each of her claims, affirming the conviction. 

First, Ceballos challenged the admission of a material witness’s sworn statement as a violation of her Sixth Amendment right of confrontation.  Her defense attorney did not object to its admission.  The Fifth Circuit has upheld waivers of the right of confrontation without evidence that the defendant [herself] expressed agreement with the stipulation.  See United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999); United States v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980).  Since Ceballos did not dissent from the attorney’s failure to object and the stipulation could have been a legitimate trial strategy according to the panel, her counsel’s waiver of her right was valid.  The panel found Crawford did not overrule this precedent and declined Ceballos’ invitation to revisit Stephens.

This holding is of particular concern given how the “stipulation” occurred in this case.  The defense attorney never said, “We stipulate to the admission of the alien’s sworn testimony and waive the right to confront the alien.”  Rather, the district court asked if the parties had agreed on exhibits to be admitted.  Aside from an objection to the notebook described below, defense counsel responded affirmatively to the court’s question if he was “‘in agreement as to the admissibility of the government’s exhibits under those exhibit numbers?’”  In other words, the only way Ceballos could have preserved her right to confront the alien is if she knew the alien’s sworn affidavit was Exhibit 8 and during this oblique exchange with the court said that she disagreed with the admissibility of that exhibit.  The court never asked Ceballos if she was willing to waive her confrontation right, and Fifth Circuit precedent does not require the court to do so.

Ceballos’ allegations that the notebook, identified by the government as a smuggling ledger, was not properly authenticated and was inadmissible under Federal Rule of Evidence 404(b) were denied.  While a “close” issue, the panel found that the district court did not abuse its discretion by finding the notebook properly authenticated even though the Government did not present a handwriting expert.  The notebook was found in Ceballos’ purse, and the contents of the notebook provided some corroboration of the illegal activity.  The panel affirmed the admission of the notebook, on plain error review, because there was a strong basis to determine it was intrinsic evidence and, alternatively, it would have served a permissible evidentiary purpose under Rule 404(b).

The final claim, that there was cumulative error in inappropriate government witness testimony commenting on Ceballos’ invocation of her right to counsel and silence coupled with improper closing arguments deprived her of a fair trial, was also rejected for failure to demonstrate plain error. 

Thanks to FPD Intern Samantha Canava for her contributions to this post.

Not Plain Error to Admit Non-Testifying Co-Defendant’s Confession to Cellmate (Most Circuits Limit Bruton to Testimonial Statements)

United States v. Vasquez, No. 12-41194 (5th Cir. Sept. 3, 2014) (Davis, Smith, Benavides)

Defendants Vasquez and Echeverria were jointly tried for conspiracy to possess methamphetamine with intent to distribute.  The first trial ended in a mistrial.  In the second trial, the Government introduced new evidence consisting of (1) Defendant Echeverria’s confession to a cellmate that both he and Defendant Vasquez participated in the conspiracy, and (2) Defendant Vasquez’s prior drug trafficking conviction.  

On plain error review, the panel found that admission of Defendant Echeverria’s jailhouse confession through the testimony of the cellmate did not violate Bruton or Crawford even though Defendant Echeverria did not testify.  The panel cited First, Third, Fourth, Sixth, Eighth, Ninth, and Tenth Circuit cases that limit Bruton to testimonial statements only, and Defendant Vasquez never disputed that Defendant Echeverria’s jailhouse confession was non-testimonial. 

Defendant Vasquez also challenged the admission of his prior conviction for possession of heroin under Federal Rule of Evidence 404(b).  The Government presented evidence of this conviction through the testimony of the California police officer who made the 1998 arrest and testified that Defendant Vasquez “look[ed] just like the pictures” of the individual convicted in California.  In other words, the officer had no personal recollection of Defendant Vasquez and was relying on the information in the file.  The panel found this to be sufficient evidence that Defendant Vasquez committed the prior bad act.

Both defendants argued on appeal that the evidence was insufficient to show that they were knowing participants in the conspiracy, but they both failed to renew their motions for judgment of acquittal at the close of trial.  So, the convictions could only be reversed if the convictions constituted “a manifest miscarriage of justice,” and the panel found that they did not.

Convictions and sentences affirmed.

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.

Prosecutor Violated Bruton by Cross-Examining Defendant with Non-Testifying Co-Defendant’s Statements

United States v. Powell, No. 11-51205 (Oct. 3, 2013) (Jones, Smith, Garza)

Both Powell and Akin went to trial on charges of conspiracy to possess crack cocaine with intent to distribute and possession with intent to distribute.  The crack cocaine was discovered pursuant to a legitimate traffic stop and tip from an informant.  Akin made inculpatory statements after her arrest that the Government introduced at trial through the testimony of officers.  Akin did not testify, but Powell did.  During cross-examination of Powell, the prosecutor repeatedly asked Powell to explain Akin’s inculpatory statements.

The panel held that the introduction of Akin’s statements did not violate Bruton v. United States, 391 U.S. 123 (1968), because the statements “did not clearly refer to [Powell] and could only be linked [to him] through additional evidentiary material.”  The statements only focused on Akin’s personal actions and personal knowledge about the crack cocaine.  However, the panel held that the use of Akin’s statements against Powell through cross-examination violated Bruton and the Confrontation Clause because Akin did not testify, so Powell could not confront the witness against him.  The cross-examination “drew the jury’s attention to Akin’s statements and used her statements against” Powell thereby “significantly increas[ing] the danger of improper use” of the statements.  The Bruton error did not mandate reversal, though, because it was harmless given the weight of other evidence against Powell.

The panel also analyzed Powell’s and Akin’s suppression arguments but held that the duration of the stop did not violate Terry because officers had reasonable suspicion that Powell and Akin were transporting cocaine (based on the informant’s tip that contained very specific details) and that the intrusive search of the vehicle was based on probable cause (also the informant’s tip that was gradually corroborated by the officers’ investigation).

Lastly, the panel affirmed Powell’s sentence as reasonable and also the U.S.S.G § 3B1.4 use of a minor enhancement.  The panel reiterated that the test of whether the enhancement applies is purpose-driven:  whether the defendant took “‘some affirmative action to involve the minor in the offense’” and “‘used the minor to avoid detection.’”  (quoting United States v. Mata, 624 F.3d 170, 175 (5th Cir. 2010)).  Here, Powell decided to take the minor on a previously-planned drug trafficking trip.  The panel recognized a plausible explanation for the minor’s presence in the vehicle other than to avoid detection: both parents were young, in the vehicle, and without means for childcare.  However, Powell told the traffic officers that he was returning from picking up his child, which the panel took to “demonstrate use of a minor to avoid detection and provide the additional circumstantial evidence necessary under Mata” for the enhancement.

 

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.

Melendez-Diaz Remains Safe; Court Vacates and Remands VA Case That Could Have Undermined the Recent Ruling

Last June, only one day after handing down its Confrontation Clause ruling in Melendez-Diaz v. Massachusetts, the Supreme Court granted cert in Briscoe v. Virginia on a question that Melendez-Diaz appeared to have answered. That development naturally prompted speculation that the Court might already be looking to modify, if not overrule, Melendez-Diaz, given the vigorousness of the dissent and the at-the-time impending change in the Court's lineup.

Well, Briscoe was argued just a couple of weeks ago, and we've already got a decision: the Court vacated and remanded for reconsideration in light of Melendez-Diaz. Why didn't the Court just GVR the case in the first place, rather than have full briefing and oral argument? Minds ponder.

Popular Mechanics Unveils "The Truth About 4 Common Forensics Methods"

Forensic evidence, shmorensic evidence. Okay, that's a little bit of an exaggeration, but the point remains: much of forensic "science" is anything but scientific. That was one of the findings contained in a recent report by the National Academy of Sciences. And it's one of the reasons why cross-examination of witnesses presenting forencic evidence is no mere formality.

The deficiencies of forensic science have now reached popular consciousness, as evidenced by this feature article in the August 2009 issue of Popular Mechanics. As the article explains, not only are "America’s forensic labs . . . overburdened, understaffed and under intense pressure from prosecutors to produce results[,]" but

criminal forensics has a deeper problem of basic validity. Bite marks, blood-splatter patterns, ballistics, and hair, fiber and handwriting analysis sound compelling in the courtroom, but much of the “science” behind forensic science rests on surprisingly shaky foundations. Many well-established forms of evidence are the product of highly subjective analysis by people with minimal credentials—according to the American Society of Crime Laboratory Directors, no advanced degree is required for a career in forensics. And even the most experienced and respected professionals can come to inaccurate conclusions, because the body of research behind the majority of the forensic sciences is incomplete, and the established methodologies are often inexact. “There is no scientific foundation for it,” says Arizona State University law professor Michael Saks. “As you begin to unpack it you find it’s a lot of loosey-goosey stuff.”

There's also an article exposing "The Truth About 4 Common Forensics Methods," those methods being fingerprints, ballistics, trace evidence, and biological evidence. Well worth a read.

Hat tip: Radley Balko at Hit & Run.

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.

SCOTUS: Lab Reports Testimonial Under Crawford; Reasoning Applies Broadly to Other Documents Prepared Solely for Use at Trial

Melendez-Diaz v. Massachusetts, No. 07-591 (U.S. June 25, 2009)

Although it took the Supreme Court a long time to get this opinion out (the case was argued last November), it was worth the wait. The issue, as you'll recall, was "[w]hether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." The report at issue identified the substance seized from the defendant as cocaine. The Court, in an opinion by Justice Scalia for a 5-Justice majority, held that such reports are testimonial. But the case isn't just about lab reports; as you'll see, its reasoning applies to a broad range of documents that are prepared to establish facts at trial.

The question, according to the majority, was an easy one "involv[ing] little more than the application of our holding in Crawford[.]" The question was so easy, in fact, that the analysis covers less than three full pages. Crawford described a "core class of testimonial statements":

ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Lab reports fit that description to a "T":

There is little doubt that the documents at issue in this case fall within the “core class of testimonial statements” thus described. Our description of that category mentions affidavits twice. The documents at issue here, while denominated by Massachusetts law “certificates,” are quite plainly affidavits: “declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.” They are incontrovertibly a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine—the precise testimony the analysts would be expected to provide if called at trial. The “certificates” are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”

Here, moreover, not only were the affidavits “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves.

(cites omitted). Thus, "under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment."

The bulk of the opinion is devoted to refuting numerous arguments raised by the state and the dissenters (Justice Kennedy, joined by the Chief, Breyer, and Alito). The majority said:

• Lab techs aren't exempt from cross-examination simply because their testimony is the result of supposedly neutral, scientific testing. As the recent report from the National Academy of Sciences reveals, forensic labs are subject to pressure from law enforcement, and there are serious reliability problems with many types of forensic evidence. "[T]here is little reason to believe that confrontation will be useless in testing analysts' honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts."
• Lab reports are not business or public records—categories of documents Crawford suggested might not be testimonial—because they are produced for trial. "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."
• The fact that the defendant can subpoena the lab tech does not vitiate the violation in introducing the lab report. "Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequence of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."
• The possibility that this ruling will create more hassles for the Government is not sufficient reason to hold otherwise. "The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience."

Although the majority handily disposed of the dissent's protests, the dissenter's attitude towards the issue remains troubling. To them, requiring live-witness testimony rather than lab reports will impose a monumental burden on prosecutors, resulting in many defendants walking on a "technicality" when the witness, for whatever reason, is unable to testify in court, leaving the Government without sufficient proof on an element of an offense. That's right: four Justices of the Supreme Court see the Government's failure to prove its case—due to its failure to marshal and present its witnesses at trial—as a "technicality."

Underlying this attitude seems to be the view that that lab techs and forensic tests are by and large neutral and reliable, such that cross-examination is largely useless. But what about that NAS report demonstrating otherwise?

That report is not directed to this Court, but rather to the elected representatives in Congress and the state legislatures, who, unlike Members of this Court, have the power and competence to determine whether scientific tests are unreliable and, if so, whether testimony is the proper solution to the problem.

Of course, if courts lack such power and competence, then why we have Daubert and Rule 702?

There's more to criticize in the dissent—including its strident tone—but I can already sense some folks in the audience are saying, "The dissent's troubling, but so what? It is the dissent, after all." Well, consider that the day after it issued the opinion in Melendez-Diaz, the Court granted cert in a case presenting this question:

If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

"Whoa, hold on!", you say. "Didn't the Melendez-Diaz majority address this issue and explain that the Compulsory Process Clause doesn't relieve the Government of its burden under the Confrontation Clause?" Why, yes. It did. But keep in mind that Justice Souter, who was in the majority, has retired from the Court. His replacement may not share his views on this issue. And given the dissenters' strong views on the subject, you have to wonder, as does a post at SCOTUSblog, "Is Melendez-Diaz already endangered?"

But, hey, we're not there yet. So let's end things on a cheerful note: in a future post I'll explain how Melendez-Diaz has abrogated Fifth Circuit case law permitting the Government to rely on certificates of non-existence of record to prove the no-permission-to-reapply-for-admission element in illegal reentry cases.

Will They Call It an EA-File?

Via Bender's Immigration Daily, we learn that the Washington Post is reporting that A-Files are going electronic:

The Bush administration has launched a major overhaul of the nation's immigration services agency, selecting an industry consortium led by IBM to reinvent how the government handles about 7 million applications each year for visas, citizenship and approval to work in the United States, officials announced yesterday.

* * *

The new system would allow government agencies, from the Border Patrol to the FBI to the Labor Department, to access immigration records faster and more accurately. In combination with initiatives to link digital fingerprint scans to unique identification numbers, it would create a lifelong digital record for applicants. It also would eliminate the need for time- and labor-intensive filing and refiling of paper forms, which are stored at 200 locations in 70 million manila file folders.

That last bit has to make you wonder just how reliable the filing system is, especially when the presence or absence of documents in an A-File is offered to establish an element of a criminal offense. Turns out lots of mistakes get made:

Government investigators have reported that the agency's pre-computer-age paper filing system incurs $100 million a year in archiving, storage, retrieval and shipping costs; has led to the loss or misplacement of more than 100,000 files; and has contributed to backlogs and delays for millions of cases.

And speaking of using A-File docs (or EA-File bits & bytes?) in lieu of live testimony at trial, the Supreme Court heard oral argument the other day in Melendez-Diaz v. Massachusetts, which presents a related question: "Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." For more on Melendez-Diaz, check out our post on the cert grant, the oral argument transcript, and SCOTUSblog's argument analysis.

Crawford Doesn't Affect Admissibility of Co-Defendant's Out-of-Court Statements at Trial; Reference to Codefendants' Guilty Pleas Harmless Error

United States v. Ramos-Cardenas, No. 06-51383 (5th Cir. Apr. 9, 2008) (per curiam) (King, Stewart, Prado)

Recall that in Bruton v. Smith, the Supreme Court held that the Confrontation Clause bars the admission of a non-testifying codefendant's out-of-court statement that expressly implicates another defendant. Later, in Richardson v. Marsh, the Court held that admission of a non-testifying codefendant's statement didn't violate the other defendant's Confrontation Clause right where the statement was redacted to omit any reference to the other defendant, as well as to remove any implication that anyone other than the codefendant and an identified third party commited the crime. But in Gray v. Maryland, the Court found a Bruton violation where the non-testifying codefendant's statement was redacted by replacing the other defendant's name with blank spaces, "deleted," or "deletion." The difference between Marsh and Gray? In Marsh, the statement incriminated the other defendant only inferentially and in combination with other evidence introduced at trial. But in Gray, the way the statement was redacted obviously implicated the other defendant, and didn't require as much of an inferential leap as in Marsh.

So why the history lesson? Well, when Marsh and Gray were decided, Ohio v. Roberts governed the admissibility of testimonial hearsay, and allowed such statements if they bore sufficient indicia of reliability (either falling within a firmly rooted hearsay exception, or on a showing of "particularized guarantees of trustworthiness"). But Roberts is no longer good law, having been overruled by Crawford. Now (or as it really always was, depending on how you view it) testimonial hearsay is admissible against a defendant only if the witness is unavailable and the defendant had a prior opportunity for cross examination. Thus the question: do Marsh and Gray survive Crawford?

The question arose in this big backpacker case when a dozen or so defendants were prosecuted for conspiring to possess a lot of marijuana with the intent to distribute it. At trial, an agent testified to inculpatory post-arrest statements made by two of the codefendants. Prior to trial, the district court had ordered "that these statements be redacted to eliminate all reference to defendants other than the speaker [,including the elimination of any plural pronouns such as "we" or "they"], and the jury was instructed not to consider the statements as evidence." Unfortunately for the codefendants, the agent slipped up a couple of times and testified that one of the defendants said that "he arrived in Acuna a week before they crossed," an apparent reference to other backpackers who crossed the Rio Grande with him. The agent corrected himself during the rest of his testimony, relating the codefendants' statements with singular pronouns only.

On appeal, the court held that the admission of the codefendants' "plural" statements fell squarely within Marsh, and did not violate the other defendants confrontation rights. It also held that the "they" statements were OK, because the inferential implication of the other defendants was more attenuated than in Gray, and because Gray suggested that use of an indefinite pronoun would take care of the confrontation problem.

So what about Crawford? The court spake thusly:

Crawford involved the admission of an unavailable witness’s out-of-court statement in a single-defendant trial, and thus did not speak directly to the issue before us. However, while Crawford certainly prohibits the introduction of a codefendant’s out-of-court testimonial statement against the other defendants in a multiple-defendant trial, it does not signal a departure from the rules governing the admittance of such a statement against the speaker-defendant himself, which continue to be provided by Bruton, Richardson, and Gray.

It then cites decisions from several other courts of appeals holding the same, but none to the contrary, so there doesn't appear to be a split of authority on the issue.

In addition to the confrontation issue, the court addressed another question that can arise in multi-defendant trials. It so happens that a Mr. Diaz, one of the defendants in the case, pleaded guilty before trial and testified against the others (the terms of his plea agreement were covered during the trial). During deliberations, the jury sent a note asking why "Diaz" was "the only name on the indictment, and not the names of the defendants?" As it turns out, the jury was apparently referring to the jury instructions styled "United States of America v. Daniel Bennett Diaz, et [] al." "In response, the district court submitted a copy of the indictment to the jury, along with a note explaining that the first two individuals listed on the indictment, Diaz and Huerta-Adriano, had pleaded guilty, and that the jury’s job was to determine if the government had proved the guilt of the other defendants beyond a reasonable doubt."

The court of appeals held that "it clearly was not error for the district court to state in the response to the jury note that Diaz had pleaded guilty, as this fact was already properly before the jury: evidence of a testifying coconspirator’s conviction is admissible (and commonly used) for impeachment purposes, and the fact of Diaz’s plea was referenced by both the government and the defense while he was on the stand."

The reference to Huerta-Adriano's guilty plea was more problematic, because he did not testify at trial. Nevertheless, despite finding the disclosure troubling, the court held that the error, if it was even error in the first place, was harmless in light of 1) the evidence against the defendants, and 2) the assumption that the jury followed the district court's instruction that the guilty pleas were not evidence of the other defendants' guilt.

Cert Grant: Are Forensic Lab Reports "Testimonial" and Thus Subject to Crawford?

Today the Supreme Court granted certiorari in Melendez-Diaz v. Massachusetts (No. 07-591), which presents the following question:

Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

The Court's resolution of the question may extend beyond lab reports. As the cert petition notes, "courts holding that forensic reports are testimonial . . . reason that such reports are created solely for use in criminal prosecutions and present ex parte attestations aimed at helping to prove the defendant's guilt." That sounds an awful like like the certificate of non-existence that is commonly presented, in lieu of live testimony in illegal reentry cases, to establish that an alien had not received permission to reenter the United States. Or perhaps the use of a grand jury transcript to establish the predicate for the admission of a business record at trial. So think broadly, and preserve accordingly.

If you'd like to read the papers in the case for yourself, SCOTUSblog has helpfully collected the opinion of the Appeals Court of Massachusetts, cert petition, brief in opposition, petitioner's reply, and two amicus briefs in support of the petitioner.

Goverment's Burden of Proof on Harmless Error Review of Confrontation Clause Violation Depends on Type of Violation

United States v. Alvarado-Valdez, No. 99-40370 (5th Cir. Mar. 12, 2008) (Higginbotham, Davis, Smith)

Here's one for all the appellate geeks out there: how must the Government meet its burden of proving that a Confrontation Clause violation at trial was harmless beyond a reasonable doubt? Answer: it depends on the type of Confrontation Clause violation.

If the violation consists of the introduction of inadmissible testimony, then apply the Chapman v. California test: the error is harmless only if there is no reasonable possibility that the evidence contributed to the conviction. This is the test that would apply to Crawford violations (the introduction of testimonial hearsay absent unavailability and a prior opportunity for cross-examination).

But if the violation is a denial of the defendant's right to impeach a witness for bias, then apply the test from Delaware v. Van Arsdall, which considers

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

According to Alvarado-Valdez, Van Arsdall did not announce a standard of review different from that set forth in Chapman. It's just that the Van Arsdall "test makes sense in light of that specific Confrontation Clause violation: To determine whether a defendant was harmed by not being able to impeach a witness, it is necessary to look at what the full exercise of cross-examination could have disclosed." Hence the different proof requirements depending on the exact type of Confrontation Clause violation.

And now for an interesting procedural aside. Alvarado was convicted almost a decade ago, but he may actually have benefitted from having his appeal take so long. Here's how:

In 1998, Alvarado was charged in a drug conspiracy. One of his codefendants pled guilty before trial, and later fled to Mexico. At Alvarado's trial, the Government called "Agent Garcia" to testify about what that codefendant said during his interrogation, and relied heavily on that testimony in the closing argument. Alvarado was convicted, and appealed.

In 2001, the Fifth Circuit erroneously dismissed the appeal for failure to prosecute. The court reinstated the appeal in 2006, and just yesterday reversed Alvarado's conviction on the basis of the Crawford violation.

As it turns out, Alvarado may have actually benefitted from the erroneous dismissal of his appeal. Had that not happened, the court likely would have resolved the appeal in 2001 or 2002. Of course, that was before Crawford, which was decided in 2004. It's possible that the court would not have found a Confrontation Clause violation based on the pre-Crawford state of the law, thus affirming Alvarado's conviction. And Crawford isn't retroactive, so Alvarado wouldn't have been able to benefit from it. How 'bout that?

Court Again Confronts Crawford, Holds 911 Call Not Testimonial In Light of Davis v. Washington Factors

United States v. Proctor, No. 07-60011 (5th Cir. Oct. 22, 2007) (per curiam) (Garwood, Jolly, Stewart)

911 calls: testimonial or not, for purposes of the Confrontation Clause? It depends. Were the statements made for the purpose of allowing police to respond to an ongoing emergency, or has that purpose been accomplished such that any further statements become testimonial? Let's see how that played out here, on a somewhat strange set of facts.

Proctor, his brother Yogi, and their friend Fairley left a nightclub together and headed to Yogi's car. When they got there, Proctor grabbed a .38 revolver that Fairley had left on the dashboard. Fairley took exception to that, and Proctor started cussing, fired the gun into the ground twice, and took off running. Yogi called 911, and told the operator that Proctor 1) had stolen someone else's gun, fired it into the ground twice, and run back into the club; 2) was a convicted felon, and therefore barred from possessing a gun; 3) might be under the influence of cocaine; and 4) was "know[n] . . . real good" by the police. The police apprehended Proctor after a brief gun battle. Proctor was eventually convicted of three gun charges.

On appeal, Proctor argued that the admission of the 911 tape violated his rights under the Confrontation Clause. The court disagreed. It relied on Davis v. Washington, in which the Supreme Court held that statements made for the purpose of enabling police to respond to an ongoing emergency, which characterizes many 911 calls, are not testimonial for purposes of the Confrontation Clause. But Davis also acknowledged that a call for assistance can evolve into testimonial statements after the initial purpose of the call has been satisfied. So how do you know whether's a 911 call is testimonial? In Davis,

[t]he Court noted that: (1) the caller was describing the events as they were happening; (2) the caller was facing an ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller’s answers were frantic. In conclusion, the Court held that the circumstances of the interrogation on the 911 recording indicate that the caller was not testifying as a witness, but rather was enabling police assistance to meet an ongoing emergency.

Applying these factors to Proctor's case, the court concluded that Yogi's 911 call was not testimonial:

Yogi’s call to 911 was made immediately after Proctor grabbed the gun and fired it twice. During the course of the call, he recounts what just happened, gives a description of his brother, indicates his brother’s previous criminal history, and the fact that his brother may be under the influence of drugs. All of these statements enabled the police to deal appropriately with the situation that was unfolding. The statements about Proctor’s possession of a gun indicated Yogi’s understanding that Proctor was armed and possibly dangerous. The information about Proctor’s criminal history and possible drug use necessary for the police to respond appropriately to the emergency, as it allowed the police to determine “whether they would be encountering a violent felon.”

The court rejected Proctor's argument that the emergency had passed once he ran off with the gun, concluding that Yogi could reasonably think the people in the nightclub were in danger, or that Proctor might come back to confront him and Fairley. So because the 911 call wasn't testimonial, its admission didn't violate Proctor's confrontation right.

Crawford Doesn't Bar Use of Grand Jury Testimony to Establish Business-Record Predicate at Trial; Court Explores Interplay Between 404(b) & 608(b)

United States v. Morgan, No. 06-20634 (5th Cir. Oct. 17, 2007) (per curiam) (Dennis, Clement, Prad0) (The opinion indicates that Judge Dennis concurred in the judgment only, but there's no explanation as to why.)

Morgan was convicted at trial of twelve counts of health care fraud, under 18 U.S.C. § 1347, for her role in a scheme involving Medicare claims for motorized wheelchairs and scooters ("durable medical equipment" in Medicare-speak). Medicare beneficiaries can submit claims for DME, but the claims regulations require 1) a prescription for the DME from a treating physician who has actually seen the patient face-to-face, and 2) a "certificate of medical necessity" that, as the name implies, certifies that the patient actually needs the equipment. The details of the scheme were pretty involved, but here's Morgan's involvement in a nutshell: Morgan was paid to write wheelchair and scooter prescriptions for patients she never met. Her signature also appeared on CMN's for the equipment. Medicare paid nearly $8 million of the $24 million in claims submitted using Morgan's Medicare physician identification number.

Morgan raised a couple of interesting evidentiary issues on appeal, both of which the court rejected. First, she argued that the use of grand jury testimony to authenticate business records used against her at trial, as well as the admission of the records themselves, violated the Sixth Amendment's Confrontation Clause. (Unfortunately, the opinion doesn't clearly explain which records those were, or exactly what the testimony was. Also, the witness appears to have been a participant in the scheme. For reasons not explained in the opinon, he was unavailable to testify at trial.)

As for the foundational testimony, the court acknowledged that "Crawford specifically identifies grand jury testimony as testimonial in nature." But then it pointed to pre- and post-Crawford case law from the Fifth Circuit holding that the Confrontation Clause doesn't bar the admission of a certificate of the absence of public records, and that the confrontation right doesn't apply at sentencing. The court also cited Seventh and Ninth Circuit cases holding that certifications of the authenticity of business and public records aren't testimonial. The Seventh reasoned that if business records are nontestimonial, as Crawford said, then the foundational evidence must be, too. The Ninth Circuit apparently relied in large part on the inconvenience that live testimony would pose for witnesses and the Government, "without any apparent gain in the truth-seeking process." (I'm just a caveman, but don't see what that has to do with whether evidence is testimonial or not. And hasn't the Sixth Amendment has already made the inconvenience call in the accused's favor?) Based on all this, the court held "that Crawford does not apply to the foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence." It also held that the business records themselves aren't testimonial, pointing to Crawford and to Fifth Circuit cases holding that public records and a certificate of non-existence of an INS record aren't testimonial, either.

Morgan's second challenge was to the admission of extrinsic evidence that she violated a condition of her pretrial release. At trial,

[a]fter questioning Morgan about the charges in the indictment, the government continued to cross-examine her about pretrial release conditions requiring her to refrain from opening any new bank accounts. Morgan admitted that she met her daughter at Compass Bank one day and that she endorsed a check for approximately $179,000 on that visit but denied depositing it and denied opening a new account.

The government called a rebuttal witness, Daniel Wu of Compass Bank, who testified that Morgan and her daughter met with him on October 24, 2005 when Morgan asked him to close two business accounts, to open a new business account, and to transfer the funds from the old accounts into the new account. The new account carried the same name as one of the closed accounts, and Morgan’s daughter was to be the signatory. Over a defense objection, Compass Bank records were admitted which included a signature card with Morgan’s daughter’s name and a copy of a check for $172,506. Wu identified the check as the instrument that was deposited on October 24, 2005, stated that Morgan had handed him the check and stated that he was present when she endorsed it. Morgan told Wu to only put her daughter’s name on the new account. Wu testified, “[Morgan] said to make sure that I remembered who she was so that when she took care of her personal matters, that she could—so that I could add her to this new account.”

The court observed that, because Morgan put her character for truthfulness at issue by testifying, FRE 608(b) permitted the Government to ask her about specific instances of misconduct, and "violations of the conditions of her pretrial release rise to a level of dishonest conduct sufficient to allow the government’s inquiry." But the court also pointed out that "Rule 608(b) does not allow extrinsic evidence of specific instances of misconduct outside of cross-examination and could not be the basis for admission of Wu’s rebuttal testimony or the bank records."

The court nevertheless held that Rule 404(b) permitted what Rule 608(b) otherwise disallowed in this case. It concluded that, because Morgan's defense at trial was that she lacked the intent to defraud and that the signatures on the CMN's were forgeries, "[e]vidence of Morgan’s attempt to circumvent pretrial release conditions by concealing her opening of a new bank account by using her daughter’s name rebutted her defense that she lacked fraudulent intent. Also, Morgan’s apparent perjury at trial proved fraudulent intent as to the underlying scheme for which she was on trial." The court also said that the episode at the bank showed that "Morgan had knowledge of how to commit fraud," that Morgan's "knowledge of how to circumvent signature requirements rebutted her testimony" that the signatures on the CMN's were forgeries, and that "[e]ven if she had not signed the forms, her activity at Compass bank proved that she knew how to benefit from the use of her identity without fully disclosing it." Finally, the court held that the prejudicial effect of the evidence didn't subtantially outweigh its probative value, so there was no abuse of discretion in admitting it.

Officer's Testimony That Non-Testifying CI Identified Defendant at Crime Scene Violated Confrontation Clause, Error Not Harmless

United States v. Rodriguez-Martinez, No. 05-11384 (5th Cir. Jan. 12, 2007) (per curiam) (Garwood, Dennis, Owen)*

Officer Cedillo was running a CI. The CI made arrangements with "Jorge," over the course of several phone conversations, for delivery of 15 kilos of cocaine. "Officer Cedilo listened to some of the calls through the informant's speaker-phone." Jorge called the CI on the agreed-upon date of delivery, and told the CI that he was in a gray minivan with his girlfriend at a Denny's. The police, along with the CI, set up surveillance on the Denny's. They saw Rodriguez and three others get into the minivan and drive off. An officer pulled over the van and ultimately found 12 kilos of cocaine in hidden compartments in the van.

Rodriguez was charged with possession of more than 5 kilos of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1), (b)(1)(A)). The trial evidently centered on whether Rodriguez was "Jorge."

[Officer Cedillo] testified that he had “substantial contact and time to listen to [Jorge’s] voice” and that Rodriguez-Martinez’s voice “sound[ed] similar to the voice that belonged to Jorge on the other end of the cell phone.” Over hearsay and Confrontation Clause objections, Officer Cedillo testified that the informant pointed to Rodriguez-Martinez in the Denny’s parking lot and said, “[T]hat’s Jorge, the guy I’ve been talking to.”

Slip op. at 3.

Rodriguez pressed the Confrontation Clause issue on appeal, arguing that Officer Cedillo's testimony about the CI's out-of-court identification was testimonial hearsay barred by Crawford v. Washington. The Government conceded that point, so the more significant issue was whether the error was harmless. The court held that it was not:

The informant’s out-of-court statement was the only evidence that definitively identified Rodriguez-Martinez as the drug source. Only one other witness, Officer Cedillo, testified that Rodriguez-Martinez “sounded similar” to the drug source. Other circumstantial evidence connects Rodriguez-Martinez to the drug source, but Rodriguez-Martinez presented a “logically possible and not implausible account” for this evidence because it also points to Alberto Mendoza as the drug source. The scales simply do not tip in favor of the Government on the record before us. Since the informant’s identification of Rodriguez-Martinez as the drug source was particularly important to the Government’s case, we declineto interpret any adverse influence its admission had on the jury as harmless beyond a reasonable doubt. Accordingly, Rodriguez-Martinez is entitled to a new trial.

Slip op. at 8.

Rodriguez also argued that the evidence was insufficient to support his conviction. The court disagreed, holding that the evidence was sufficient even without the out-of-court ID. So Rodriguez gets a new trial instead of a judgment of acquittal.

*It appears that the court granted Rodriguez's motion to publish this originally unpublished opinion.