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Jana C. Volante writes:

Recently, in United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012), the Ninth Circuit addressed a question left unaddressed by the Supreme Court and never previously tackled by the Ninth Circuit: are certificates of authentication and accompanying affidavits authenticating foreign public records and foreign business records testimonial? In other words, can foreign records be authenticated without in-person witness testimony, or would using certificates of authentication and affidavits to authenticate foreign records violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment?

In the District Court, defendant Henry Anekwu was convicted of mail fraud, wire fraud, and telemarketing fraud against the elderly. The evidence showed that between 1998 and 2002, Anekwu owned and operated lottery companies in Canada, which targeted elderly victims in California. Anekwu directed the telemarketers working for his companies to call victims and to falsely represent to those victims that they had won lottery money. The victims were then obliged to pay certain taxes and costs to Anekwu and his companies in order to receive the non-existent lottery winnings, with the payments mailed to various commercial mailbox addresses in Vancouver, Canada. The defendant was extradited to the United States to stand trial, and the government sought to introduce foreign business and public records against him pursuant to 18 U.S.C. § 3505 and Federal Rules of Evidence 803 and 902. Among the alleged errors committed in his trial, Anekwu argued that the District Court committed plain error by admitting certificates of authentication for foreign public and business records by means of affidavit in violation of the Confrontation Clause.

The Ninth Circuit previously concluded in United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) that routine certifications of domestic public records are not testimonial, but neither the Supreme Court nor the Ninth Circuit had previously addressed whether certifications of foreign public records are testimonial. If certifications of foreign public records are testimonial, then the custodians who created the certificates of authentication are witnesses subject to a defendant’s Sixth Amendment right of confrontation and admitting certificates of authentication without in-person witness testimony violates a defendant’s Constitutional right to confront witnesses against him.

The Supreme Court had previously held that, to rank as testimonial, a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2714 n.6 (2011) (discussed previously in this space). Furthermore, as the Court held in Bullcoming and in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (discussed previously in this space), a document created solely for an evidentiary purpose is testimonial. Building on this Supreme Court precedent, in Anekwu, the Ninth Circuit held that the certificates of authentication in question certify only that the documents are true copies and that the person so certifying is the custodian of the document. Because the certificates of authentication do not interpret the content of the related business and public records or certify their substance or effect, the appeals court held that the certificates do not create a record for the sole purpose of providing evidence against a defendant. Accordingly, since the purpose of the certificates was merely to authenticate the foreign public and business records, and not to establish or prove some fact at trial, the Ninth Circuit held that the admission of the certificates was not plain error.

As the marketplace becomes increasingly global, and cross-border criminal activity more prevalent, it is highly likely that more and more white-collar criminal schemes will generate the need for evidence from multiple countries, increasing the frequency of the government’s reliance on foreign certificates of authenticity, and heightening the importance of this Ninth Circuit ruling.
 

(Jana C. Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)

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As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court's decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial.  Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when the declarant is unavailable at trial and there has been no prior opportunity for cross-examination, most formerly routinely-admitted paper records upon which prosecutors have relied should be barred.  Some courts have stepped boldly into this new world, while others have notably stumbled at the doorway.

There are two recent illustrations of this fascinating dynamic at work.  In United States v. Martinez-Rios, 2010 WL 323553 (5th Cir., Jan. 28, 2010), the Fifth Circuit held correctly that the defendant's Sixth Amendment rights were violated when the trial judge admitted, in an illegal re-entry case, an Immigration Certificate of Non-Existence of Record (CNR) to establish the essential element that the defendant was not authorized to re-enter the United States after deportation.  Although Fifth Circuit precedent had previously permitted the introduction of CNR's, the court recognized that Melendez-Diaz had changed the landscape; the CNR was testimonial in nature and was improperly admitted.

Conviction reversed even on a plain error standard, right?  No.  The appeals court found sufficient other evidence in the record to establish the element of lack of authority: the defendant had been found by authorities lurking in bushes after having admitted crossing the Rio Grande into Texas and also admitted having "no documents."  If the foregoing is adequate proof of non-authorized entry, then every alien found walking into the United States should be presumed to lack authority and CNR's would be unnecessary.  However, this thin, circumstantial evidence -- or, as the Fifth Circuit put it "all that testimony" -- showed that the erroneous admission of the CNR did not affect the defendant's substantial rights.   Result: conviction affirmed.

At least the Fifth Circuit correctly, and easily, applied Melendez-Diaz.  In contrast, the First Circuit in United States v. Dowdell, 2010 WL 481416 (1st Cir., Feb. 12, 2010), dropped the ball completely.  Dowdell was convicted of drug distribution; his defense was misidentification and included the claim that he was not the individual nicknamed "Smoke" shown in a blue shirt on a surveillance video shot shortly before his arrest.  The government offered at trial the booking sheet prepared at the time of arrest, in which a police officer reported that Dowdell was wearing a "blue plaid shirt."

The trial court had admitted the booking report under Fed. R. Evid. 803(8), the government-records hearsay exception, which however excludes from its embrace police reports and other records evincing matters observed by police officers.  The appeals court first made quick work of the seeming bar posed by  the evidence rule, saying that "we decline to give it a literal, unqualified meaning."  So, the booking sheet somehow passed muster under the hearsay exception. 

It cannot be determined from the opinion if a Melendez-Diaz objection was made below, but the First Circuit was applying a de novo standard of review to the trial court ruling, so was free to raise the Confrontation Clause issue sua sponte.  Incredibly, though, the First Circuit failed to measure the admissibility of the inculpatory booking sheet under the controlling Sixth Amendment standard.  It is obvious that the police officer's observations, recorded on the booking sheet, are testimonial, and were made by a declarant who neither testified at trial nor was ever subject to cross-examination.  The single most important item of evidence linking Dowdell to "Smoke" was admitted unconstitutionally and the conviction was flawed.  Result: conviction affirmed.

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Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence -- abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that  "testimonial" hearsay be kept out unless subject to cross-examination -- to in-court evidence from drug-testing labs.  Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live witness testimony as to chain of custody issues and test results.  The dissent in Melendez-Diaz predicted that the necessity for live testimony would strain state resources and crime labs around the country.

Not so much, it now appears, at least in the Seventh Circuit.  In United States v. Turner, 591 F.3d 928 (7th Cir. 2010), the state crime lab chemist, Hanson, who had run all the tests on a sample of suspected crack cocaine, taken all the test notes, and written the report confirming the nature of the substance was not called by the government at trial because she was on maternity leave.  Instead, the government in this distribution case called her supervisor, Block.  In testimony that would seem to have flouted the Sixth Amendment and Melendez-Diaz, Block was permitted to testify -- after neutrally describing his lab's equipment and calibration, and the testing protocol for cocaine -- that he had not done any independent testing on the material but had reviewed Hanson's report, Hanson's data charts, and Hanson's handwritten notes, and had reached the same conclusion as had Hanson: the stuff was indeed crack cocaine.

To be sure, Hanson's report, charts, and notes were not literally admitted into evidence, but surely they were virtually admitted through Block's parroting of their contents.  Yet, remarkably, the Turner court held that there was no Sixth Amendment violation because those materials were not actually marked as exhibits and handed to the jury and because Block provided the jury with what was "unequivocally" his own opinion.  Id at 933.  And, by the way said the Turner court, Melendez-Diaz "did not do away with Federal Rule of Evidence 703."  Id. at 934.

The court's last, throw-away comment is particularly noteworthy.  FRE 703, of course, generally permits an expert to rely on hearsay in forming and delivering an opinion if the hearsay is of a type reasonably relied upon by experts in that field.  That is to say, FRE 703 allowed the kind of testimony offered by Block until Melendez-Diaz said that it didn't, because the Confrontation Clause supersedes any conflicting rule of evidence.  Arguably, the Turner decision is result-oriented, reached in order to save a conviction against a seeming constitutional violation.  It will be interesting to watch the continued development in the lower courts of Melendez-Diaz as those courts struggle to apply the Supreme Court's bold restatement of the impact of the Sixth Amendment on the admission of hearsay evidence in criminal cases.

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Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination of the declarant. The Crawford Court did not define the term "testimonial" exhaustively, leading to some confusion in the ranks.  The Court's more recent jurisprudence has been unpredictable, such as its decision last year that the Confrontation Clause requires the government to present live testimony in order to admit lab test results in drug and other cases.

In at least one major category of government-developed evidence, it appears that lower court confusion has led to lower court error in applying Supreme Court precedent. Lower courts have since Crawford generally treated as nontestimonial, and thus impervious to Confrontation Clause objection, co-conspirator statements made to and often recorded by government informants. Recently, for example, the Sixth Circuit held in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) that statements made by Johnson's co-conspirator, O'Reilly, to a government informant were admissible against Johnson. They qualified as an exception to the hearsay rule under FRE 804(b)(3) as statements against penal interest, where O'Reilly was presumed unavailable to testify because he was likely to assert his Fifth Amendment privilege. As for the Confrontation Clause, the court of appeals held that O'Reilly's statements were nontestimonial because they were not made in response to police interrogation. Id. at 325-26.

The Sixth Circuit cited other, post-Crawford decisions which have likewise held that co-conspirator statements to informants are nontestimonial under the Sixth Amendment. For example, the Third Circuit in United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), held that statements of co-conspirators made to a CI were admissible under the Confrontation Clause. What underlies the holdings in these cases is the essential proposition that answering the questions of and responding to a government informant is different for Sixth Amendment purposes than making the same type of statements to a known government representative, as in a formal interview with an agent or police officer. The problem with this proposition is that the Supreme Court's Sixth Amendment jurisprudence shows it to be unfounded.

In Massiah v. United States, 377 U.S. 201 (1964), the Court long ago held that it was a violation of the Sixth Amendment to admit at trial the statements of the defendant made to a government informant after he had been arrested and his right to counsel had attached. To the argument that there was a meaningful difference under the Sixth Amendment between post-charge interrogation by the police and interrogation by an informant working for the police, the Court said unequivocally:

It is true that in the Spano [v. New York] case [excluding a post-indictment confession] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But [the Sixth Amendment rule] must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.

Under Massiah, then, the distinction drawn in cases like Johnson and Hendricks based on whether the interrogator is or is not wearing a uniform and carrying a badge is a meaningless one. If the person to whom statements are made is either a law enforcement agent or one doing the bidding of law enforcement, then those statements should be deemed "testimonial" under the Sixth Amendment and they should not be admitted unless the declarant is unavailable at trial and was subject to cross-examination about the statement at an earlier time. The second element of that test will never been met in the informant situation and those statements should be thrown out.
 

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Typically, cross-examining a cooperator regarding the impact of the Sentencing Guidelines (e.g., its reduction of, say, a five-year exposure on each mail fraud charge in an Information to nothing more than 12-18 months in the aggregate even before a downward reduction) or the intricacies of a 5K1.1 variance motion can be dicey under the best of circumstances.  Intuitive-sounding strategies can backfire (e.g., showing a jury that a cooperator really faces only 12-18 months despite numerous charges may be intended to convey that he got a sweetheart deal, but it also educates a sharp jury to the relatively limited amount of jail time a defendant might receive, making it more palatable to convict him) and Booker/Gall/Kimbrough have diminished the importance of the 5K as the exclusive jail-cell key.

But the Seventh Circuit has made the cross-examination even harder, holding in a recent case that the Sixth Amendment right of confrontation means only that a defense attorney must be permitted to raise the subject of the Guidelines and their impact, but that the attorney need not be given a full opportunity to explore their consequences for truth-telling.

In United States v. Recendiz, 557 F.3d 511 (7th Cir. 2009), the attorney for one of the defendants had crossed a cooperator by having the witness acknowledge familiarity with the Guidelines and with his potential sentencing range, and then obtaining a concession that the witness could get a reduced sentence by testifying truthfully.  However, when counsel asked cooperator Herrera who would determine what was truthful and what "truth" really meant, the district court cut off questioning.  

On appeal, the Seventh Circuit affirmed.  While the Sixth Amendment guarantees an opportunity for effective cross-examination, the opportunity is not unlimited and the trial judge can impose reasonable restrictions.  When a core Sixth Amendment value is at stake, like the ability to expose a witness's motivation for testifying, his bias, or motive to lie, the review is de novo.  Here, the court explained, defense counsel was allowed to explore the witness's motive for testifying, so the constitutional right of confrontation was deemed not to be implicated.

Then, applying a lesser and non-constitutional abuse of discretion standard, the appeals court held that the trial judge sufficiently allowed defense counsel to explore the Sentencing Guidelines with the cooperator.  Questions about the "truth" and who determined its presence or absence were permissibly found by the trial judge to be confusing to the jury and questions of law beyond the witness's knowledge.  Although both of these rationales appear specious -- it could be said to be clarifying, not confusing, for the jury to know that the prosecutor is the sole decider of "truth" and the questions are not legal, but seek the witness's factual knowledge of the agreement he/she signed -- the Seventh Circuit found no abuse of discretion in the lower court's denial of the right to cross-examine the witness in these areas.

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In a decision issued on April 29th, the Supreme Court -- in a decision which thematically follows from the previous post regarding the breadth of the "impeachment by contradiction" doctrine -- has reaffirmed the principle that a defendant may be impeached with a statement obtained from him in violation of the Sixth Amendment. Kansas v. Ventris, 556 U.S. ___, No. 07-1356 (Apr. 29, 2009).

Defendant Ventris was convicted of various charges in state court after the jury was allowed to hear from a jailhouse informant, who testified that Ventris admitted in his jail cell after arrest on these charges that he had committed a robbery and murder. As Ventris's Sixth Amendment rights had attached, the statement was plainly obtained in violation of the Sixth Amendment under Massiah v. United States, 377 U.S. 218, 224 (1964) and could not be used in the State's case in chief. The prosecution did, however, persuade the trial court to allow use of the statement to cross-examine Ventris after he testified that another defendant had committed the crime.

The Supreme Court held that the tainted statement was permissibly used to impeach Ventris's inconsistent testimony at trial. In a majority opinion by Justice Scalia, the Court explained that "[o]ur precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle … It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can … provide himself with a shield against contradiction of his untruths." Slip op. at 6.
 

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