United States v. Causevic

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3611
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Rasim Causevic, *
*
Appellant. *
___________

Submitted: September 22, 2010
Filed: April 22, 2011
___________

Before SHEPHERD, BRIGHT, and ARNOLD, Circuit Judges.
___________

ARNOLD, Circuit Judge.

A jury convicted Rasim Causevic of one count of making a materially false
statement, see 18 U.S.C. § 1001(a)(2), and one count of making a materially false
statement in an immigration matter, see 18 U.S.C.A. § 1546(a). Mr. Causevic
appealed, contending that he was denied his right to be confronted with the witnesses
against him, see U.S. Const. amend. VI, and challenging the sufficiency of the
evidence. Because we conclude that Mr. Causevic's confrontation rights were
violated, we reverse his convictions and remand for further proceedings.
 I.
Since Mr. Causevic challenges the sufficiency of the evidence, we state the
facts favorably to the guilty verdict. Mr. Causevic and his sister, Fadila Okanovic,
entered the United States as Bosnian refugees from the former Yugoslavia during the
civil war in that country. After a refugee has been in this country for a year, he or she
may apply for permanent resident status, which, in turn, may eventually lead to
citizenship. About ten years after Mr. Causevic arrived, he filed an application for
permanent-resident status (also known as a Form I-485) but did not complete the
process. He filed another Form I-485 three years later. The Citizen and Immigration
Service (CIS) determines whether to grant applications for permanent residency, and,
when conducting a routine background check, the CIS learned that Mr. Causevic
might be sought in his home country on a murder charge. The CIS notified
Immigration and Customs Enforcement (ICE), which obtained a report from the
International Police (an Interpol want) that a "Rasim Causevic" was wanted in Bosnia-
Herzegovina for murder, that the crime had occurred during the civil war in the former
Yugoslavia, and that it involved the killing of a soldier in "Rasim Causevic's" unit.

CIS Officers John Stewart and Ron Mace then interviewed Mr. Causevic to
determine whether he was the person named in the Interpol want. They conducted the
interview in English, and Mr. Causevic asked his sister, who accompanied him, to
assist him twice: once to spell the name of his hometown and another time to explain
his right to counsel. The officers began by questioning Mr. Causevic about his answer
of "no" to a question on his Form I-485 asking whether he had "ever ... been arrested,
cited, charged, indicted, fined or imprisoned for breaking or violating any law" other
than traffic laws. He confirmed that he had answered "no" to that question on the
application and stated that his answer was still "no." Officer Stewart then asked Mr.
Causevic whether he had ever killed anyone while he was in the army or militia in the
former Yugoslavia. He denied having done so, though he said that he had shot long
distances while he was a soldier and did not always know whether he had hit anyone.
Finally, the officer asked him whether he had killed anyone at any time before

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entering the United States, and again his answer was "no." After completing the
interview, Officer Stewart prepared a written statement that included Mr. Causevic's
answers during the interview and Officer Stewart read the document to him. Mr.
Causevic signed it under oath and in the presence of Officer Stewart and Ms.
Okanovic.

Immediately afterward, two agents from ICE, which enforces immigration and
customs laws, interviewed Mr. Causevic without his sister present. Mr. Causevic was
again asked whether he had ever been arrested and whether he had killed anyone while
in the armed services or before coming to the United States, and he responded in the
negative once more. When the agents showed Mr. Causevic the Interpol want, he
confirmed that he was the person named in the document but denied committing the
crime. The agents then asked Ms. Okanovic to come into the interview room, telling
her that they thought her brother might be more "forthcoming" if she were present; she
came in and told her brother to tell the truth, and, as she put it, he "told them
everything." When asked whether he had committed any crimes, Mr. Causevic said
"yes," that in 1995, "I shot in body six bullets," and that the victim "died after about
two minutes." Mr. Causevic asserted that did not know what else to do because the
man was coming toward him with a knife. He added that he was taken from the scene,
"put ... downtown for three days," and then transferred to a unit with about three
hundred other people until the jail was unlocked and everyone left.

Mr. Causevic was charged with six counts, all of which related to making false
statements. The jury acquitted him on the first four counts, which were based on
allegations that he falsely stated in his original and second Form I-485 that "he had
never been arrested." But the jury returned a guilty verdict on Counts V and VI. Each
of these two counts alleged that on the day he was interviewed, Mr. Causevic falsely
stated that he had never been arrested, had never killed anyone while in the armed
forces in the former Yugoslavia, and had never killed anyone before coming to the
United States. The counts differed only in that Count V charged him with violating

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§ 1001(a)(2), a general prohibition on false statements in federal matters, and Count
VI charged him with violating § 1546(a), which pertains specifically to immigration
proceedings.

During trial, Mr. Causevic objected to the admission of a Bosnian judgment
convicting him of murder following a trial in absentia; the judgment (translated into
English) recited that Mr. Causevic had committed murder by firing six bullets at a
man at close range while they were serving in what it called an independent army of
West Bosnia. The district court concluded that the judgment was not testimonial and
thus its admission would not violate Mr. Causevic's right to confront the witnesses
against him.

II.
Mr. Causevic maintains that the district court erred in admitting the Bosnian
judgment of conviction because its admission violated the Confrontation Clause,
which states, "In all criminal prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him." U.S. Const. amend. VI. We review the
district court's rejection of this contention de novo. United States v. Holmes, 620 F.3d
836, 840 (8th Cir. 2010).

Mr. Causevic challenges the government's use of the judgment as substantive
proof of an element of the charged crimes. In particular, he contends that his
confrontation rights were violated when the government introduced the Bosnian
murder conviction as proof that he killed someone, which he had denied. The
government acknowledges that it relied on the conviction to show, contrary to
Mr. Causevic's CIS interview and related written statement, that he had fatally shot
a man before coming to the United States.

Under the Sixth Amendment, a defendant has the right to confront those who
"bear testimony" against him. Crawford v. Washington, 541 U.S. 36, 51 (2004).

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Therefore a witness may not give "testimony against a defendant" without appearing
at trial, unless that witness is unavailable and the defendant had previously had an
opportunity for cross-examination. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527,
2531 (2009). Although the Court in Crawford declined to define the term
"testimonial," it gave examples of documents that usually fall within the "core class
of testimonial statements" covered by the Confrontation Clause, including "affidavits,
custodial examinations, [and] prior testimony that the defendant was unable to
cross-examine." Id. at 51-52 (internal quotation marks and citations omitted); see
Melendez-Diaz, 129 S. Ct. at 2531.

At first blush, it seems that the Bosnian judgment, as a public record, differs
significantly from Crawford's examples of testimonial statements, as well as the
analysts' reports at issue in Melendez-Diaz, which the Court emphasized were created
specifically for use at the defendant's trial for cocaine distribution, and identical to
testimony that the analysts would have given had the government called them as
witnesses. And the Ninth Circuit, in a case that the government relies on, has stated
that "it is undisputed that public records, such as judgments, are not themselves
testimonial [and] do not fall within the prohibition established ... in Crawford."
United States v. Weiland, 420 F.3d 1062, 1076-77 (9th Cir. 2005), cert. denied,
547 U.S. 1114 (2006). In that case, the defendant had appealed his conviction for
being a felon in possession of a firearm, arguing that he had a Sixth Amendment right
to cross-examine those attesting to the authenticity of his prior convictions. Id. at
1066, 1076. We agree with the Weiland court that criminal judgments may be
admitted to show that a defendant has a prior conviction without violating the
Confrontation Clause. See id. at 1078-79. But the defendant here challenges the
government's use of a conviction for a significantly different purpose, namely, to show
that he in fact committed the crime of which he was convicted. This is a difference
that makes for a legal distinction.

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 The Supreme Court long ago addressed this distinction in Kirby v. United
States, 174 U.S. 47 (1899), and it has cited Kirby favorably in two post-Crawford
cases: Melendez-Diaz, 129 S. Ct. at 2534, and Davis v. Washington, 547 U.S. 813,
825 (2006). In Kirby, the defendant was charged with receiving property that had
been stolen from the United States, and his indictment alleged, inter alia, that three
named men had stolen stamps from a post office and that the defendant had received
the stamps with the intent to convert them to his gain. Id. at 48-49. A relevant statute
provided that proof that the alleged thief (the "principal felon") had been convicted
was "conclusive evidence" that the property had been stolen, and the defendant
challenged that statute's constitutionality. Id. at 48-50. Over the defendant's
objection, the government introduced court records showing that two of the men
named in the defendant's indictment pleaded guilty to stealing stamps, the other was
convicted by a jury, and all three were sentenced to prison. Id. at 49.

The Supreme Court held in Kirby that it was "fundamental error" for the trial
court to admit evidence of the convictions. Id. at 60. In explaining its holding, the
Court observed that when a "conviction" is an element of a crime, a record of
conviction is admissible to show the fact of conviction because "a fact of that nature
could only be established by a record." But such a record should not be used to prove
that the property the defendant received "was actually stolen from the United States."
Id. at 54. The Court held that admitting the convictions in this circumstance violated
the defendant's Sixth Amendment right to confront the witnesses against him, "[o]ne
of the fundamental guaranties of life and liberty"; the defendant had had no
opportunity or right to confront the witnesses who testified against the man convicted
by a jury or the two men who pleaded guilty to the crime. Id. at 55.

We believe that the Supreme Court's recent decisions make plain that Kirby's
holding remains vital because these cases have identified the judgments of conviction
in Kirby as testimonial. In Davis, the Supreme Court cited Kirby to support an
assertion that its "own Confrontation Clause jurisprudence was carefully applied only

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in the testimonial context." Davis, 547 U.S. at 825 (emphasis added). The Court
relied on Kirby again in Melendez-Diaz, 129 S. Ct. at 2534: There the state argued,
inter alia, that the drug-testing reports were not subject to the Confrontation Clause
because they were not evidence "against" the defendant but merely evidence of a fact
that, in itself, was not incriminating. In response, the Court remarked that one piece
of evidence seldom sufficed to support a conviction. It added that it was not surprised
that the state failed to come up with a case to support its position, "since such a
holding would be contrary to longstanding case law," and it used Kirby to illustrate
its point: "In Kirby ... the Court considered [the defendant's] conviction for receiving
stolen property, the evidence for which consisted, in part, of the records of conviction
of three individuals who were found guilty of stealing the relevant property. Though
this evidence proved only that the property was stolen, and not that [the defendant]
received it, the Court nevertheless ruled that admission of the records violated [the
defendant's] rights under the Confrontation Clause." It is apparent to us that the Court
in both Davis and Melendez-Diaz endorsed the continuing validity of the Kirby
decision, and made plain that the judgments of conviction in that case were
testimonial, as the Court has used that term to determine when a defendant has a right
to be confronted by adverse witnesses. Thus we conclude that "testimonial evidence"
encompasses not only "prior testimony that the defendant was unable to
cross-examine," Crawford, 541 U.S. at 51-52, but also judgments of conviction based
on trials during which the defendant was unable to cross-examine, when those
convictions are used as proof of facts underlying the crime charged.

Following the same reasoning, we conclude that the Bosnian judgment at issue
here was testimonial because the government used it as evidence that Mr. Causevic
had lied when he said that he had not killed anyone. Mr. Causevic obviously had no
opportunity at his false-statements trial to cross-examine the witnesses against him in
his murder trial. The admission of the testimonial evidence therefore violated the
Confrontation Clause unless the witnesses were "unavailable to testify, and the
defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S.

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at 53-54. As the proponent of the evidence, the government had the burden to show
its admissibility. See United States v. Turning Bear, 357 F.3d 730, 738 (8th Cir.
2004); United States v. Arnold, 486 F.3d 177, 213-14 (6th Cir. 2007). But the
government argued only that the judgment was non-testimonial and made no effort to
show that the witnesses were unavailable; this failure alone precludes admissibility.
The government also made no showing that Mr. Causevic had a prior opportunity for
cross-examination. We know that he was absent during his murder trial, and the
government provided no basis for concluding that he would have had a right of cross-
examination even if he had been there: It did not explain how the Bosnian justice
system operated at the time of the murder trial or, more specifically, show that
defendants had a right of cross-examination in that system. Although the record
reflects that Mr. Causevic had an attorney in the murder case, we cannot tell from the
record if the lawyer cross-examined witnesses, or even had the right to do so. In the
circumstances, the judgment based on the murder conviction was admitted in violation
of the Confrontation Clause.

The government does not maintain on appeal that admission of the Bosnian
judgment was harmless, so we are not obliged to reach the issue. See United States
v. Williams, 627 F.3d 324, 329 (8th Cir. 2010); United States v. Cacioppo, 460 F.3d
1012, 1025-26 (8th Cir. 2006). Though we have discretion to review sua sponte for
harmless error, we see no basis for doing so here. Before deciding to conduct such a
review, we consider, among other things, whether the harmlessness is so certain that
a reversal would merely "result in protracted, costly and futile proceedings in district
court." Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir. 1992). (And even when we
conduct sua sponte review, we err on the side of the defendant. United States v.
Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005) (citing Lufkins, 965 F.2d at 1481)).
Here the harmlessness is far from certain: The government offered the tainted murder
conviction, potentially powerful evidence in the minds of jurors, as proof that the
defendant killed a man, an element of the government's case; and the Bosnian court's
detailed findings about the crime that were included in the judgment could only have

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enhanced the power of that evidence. The government had no witnesses to the killing.
Other trial evidence showed that Mr. Causevic had some difficulty with English (he
also had an interpreter at trial), and that the CIS officers and ICE agents did not record
their interviews with him. So we cannot say that the harmlessness is so manifest that
a new trial would be futile. We see no occasion for full-blown harmless-error review.

We thus conclude that Mr. Causevic is entitled to a new trial because he was
denied his constitutional right to be confronted by the witnesses against him.

III.
We must also address Mr. Causevic's challenge to the sufficiency of the
evidence because he is entitled to an acquittal if the government failed to make out its
case. Burks v. United States, 437 U.S. 1, 18 (1978). In determining whether the
district court should have granted Mr. Causevic's motion for an acquittal, we consider
all of the evidence presented in the district court, even though we have decided that
some of it was erroneously admitted. "An error in the admission of evidence may
warrant a new trial without the disputed evidence, but if the evidence admitted at the
first trial was sufficient to support a conviction, the defendant is not entitled to a
judgment of acquittal." United States v. Eagle, 515 F.3d 794, 806 (8th Cir. 2008).
We review the sufficiency issue de novo, viewing the evidence in the light most
favorable to the guilty verdict, resolving conflicts in favor of the government, and
accepting all reasonable inferences that support the jury's verdict. United States v.
Washington, 318 F.3d 845, 852 (8th Cir. 2003). We may not reverse unless no
reasonable jury could have found Mr. Causevic guilty beyond a reasonable doubt. Id.

Mr. Causevic was convicted of violating § 1001(a)(2) and § 1546(a). Each
count alleged that he knowingly made material false statements to the CIS when he
said that "he had never been arrested ... , that he had never killed anyone during his
service in the armed forces or militia in the former Yugoslavia, that he had never
killed anyone before coming to the United States." Mr. Causevic contends that the

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government failed to offer evidence to support a finding beyond a reasonable doubt
that any one of the statements was false, was material, or was knowingly made; these
findings are necessary to both convictions. See 18 U.S.C. § 1001(a)(2), § 1546(a).
But if there is evidence to support a finding beyond a reasonable doubt that any of the
violations in a count in the indictment occurred, we must uphold the conviction on
that count. See United States v. Van Nguyen, 602 F.3d 886, 900 (8th Cir. 2010), cert.
denied, 79 U.S.L.W. 3205 (U.S. Oct. 4, 2010).

We believe that the evidence admitted at trial and that we have already recited,
viewed favorably to the verdict, was more than sufficient to support a finding beyond
a reasonable doubt that Mr. Causevic falsely denied that he had killed anyone before
coming to the United States. Mr. Causevic contends, however, that the government
failed to establish the element of materiality because it did not show that the statement
affected the CIS's decision to deny his permanent-residency application. But under
the relevant statutes, a false statement may be material even if the agency did not
actually rely on it to make its decision; the statement need only have a "natural
tendency to influence," or be "capable of influencing, the decision." United States v.
Henderson, 416 F.3d 686, 692 (8th Cir. 2005), cert. denied, 546 U.S. 1175 (2006); see
also Kungys v. United States, 85 U.S. 759, 770 (1988). The CIS may grant
permanent-resident status only to aliens who are "admissible to the United States for
permanent residence," 8 U.S.C.A. § 1255(a)(2), and an alien who "admits acts which
constitute the essential elements of ... a crime involving moral turpitude" see 8 U.S.C.
§ 1182(a)(2)(A)(i)(I), are inadmissible. By denying having killed anyone,
Mr. Causevic denied an element of a crime involving moral turpitude, i.e., murder, see
Franklin v. INS, 72 F.3d 571 (8th Cir. 1995), and his statement thus supported a
finding of eligibility. We therefore believe that his denial was "capable of
influencing" the CIS's decision.

Mr. Causevic argues that his case is different because the evidence shows that
the statement occurred after CIS had made its decision. If he is right, we would face

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the question of whether a false statement can have a "tendency to influence" or be
"capable of influencing" an already fully-formed decision, see Henderson, 416 F.3d
at 692, but we need not answer that question here because we conclude that the
evidence supports a finding beyond a reasonable doubt that Mr. Causevic's statement
preceded the CIS's decision. Officer Stewart testified that when he and another CIS
officer interviewed Mr. Causevic, they had not decided whether to grant his
application. The officer added that even after that interview, during which
Mr. Causevic denied having killed anyone, they still had not made a decision; they did
not have sufficient evidence that the defendant was the person in the Interpol want,
a document that CIS agents were not permitted to see. The ICE agents, who had
access to the Interpol want, later showed it to Mr. Causevic before he admitted having
killed someone.

In support of his argument, Mr. Causevic asserts that Officer Stewart's
testimony shows that he knew – before Mr. Causevic's statement that he had not killed
anyone – that his Form I-485 application would be automatically denied because a
subsequent application will not be granted when, as here, an earlier Form I-485
application was deemed "abandoned." To the contrary, however, Officer Stewart
repeatedly resisted counsel's attempts to get him to admit that the abandoned
application prevented Mr. Causevic from prevailing, and we are aware of no evidence
to support his assertion that it had that effect.

Nor does the record support Mr. Causevic's contention that ICE Agent Shane
Nestor testified that before the CIS agents had interviewed Mr. Causevic, one of them
told him "that Mr. Causevic's application was going to be denied for providing false
information." Agent Nestor acknowledged that he had said, in a form sent to the
United States Attorney to initiate a case against Mr. Causevic, that CIS had stated that
it was going to deny his application. But Agent Nestor testified that the CIS agent
made this statement only after both the CIS interview and the ICE interview were
concluded. Because the evidence supported a finding beyond a reasonable doubt that

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the CIS did not decide to deny Mr. Causevic's application until after his false
statement, he cannot prevail on a sufficiency-of-the-evidence argument that is
bottomed on a contrary finding of fact.

Mr. Causevic maintains, finally, that he could not have knowingly made the
false statements because he was not sufficiently proficient in English to understand
the CIS officers' questions. Mr. Causevic correctly notes that some witnesses agreed
that he spoke "broken" English, but we do not think that that is enough to require a
jury to conclude that he could not understand the questions that he answered, notably
without consulting his sister, who was available to assist him. And one of the
witnesses who agreed that his English was "broken" testified that he had spoken
several times with Mr. Causevic and had had no difficulty understanding him.
Though there is evidence that Mr. Causevic had some difficulty with the language,
that evidence did not compel a reasonable juror to find that he did not understand the
questions nor does it support the conclusion that no reasonable juror could find
beyond a reasonable doubt that Mr. Causevic "knowingly" answered the relevant
question. We therefore deny Mr. Causevic's challenge to the sufficiency of the
evidence.

IV.
Because we conclude that the admission of the Bosnian judgment violated
Mr. Causevic's Sixth Amendment right to be confronted by the witnesses against him,
we reverse his convictions and remand for further proceedings.

SHEPHERD, Circuit Judge, concurring.

I join the court’s opinion except with respect to part II. I also concur with the
court’s conclusion that the admission of Mr. Causevic’s prior conviction violated his
right to confront the witnesses against him. I disagree, however, with the method of
analysis used by the court in determining that the record of Mr. Causevic’s prior

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conviction is a testimonial document subject to the Confrontation Clause. I believe
the record of conviction is testimonial not because of the reason it was introduced at
trial, but because it contained statements that were made specifically to be used
against Mr. Causevic in a prior trial.

The Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004)
announced a “new rule” for the analysis of Confrontation Clause challenges. Whorton
v. Bockting, 549 U.S. 406, 416-17 (2007); see also Bobadilla v. Carlson, 575 F.3d
785, 788 (8th Cir. 2009) (noting that Crawford “set forth a materially different
analysis for Confrontation Clause claims”). After Crawford, the threshold question
in any Confrontation Clause challenge is whether the challenged statement is
testimonial. See United States v. Wright, 536 F.3d 819, 823 (8th Cir. 2008). If the
statement is testimonial, we must then determine whether it was offered at trial for its
truth because the Confrontation Clause only applies to statements that are both
testimonial and hearsay—that is, statements offered to prove the truth of the matter
asserted. See United States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010). This
distinction is particularly relevant in this case because, contrary to the court’s holding,
the reason that a document is introduced at trial affects only whether the document is
hearsay, not whether it is testimonial. To the extent that Kirby v. United States, 174
U.S. 47 (1899), holds otherwise, I do not believe that portion of its holding survived
Crawford.

Although Crawford did not provide a comprehensive definition of the term
“testimonial,” subsequent Supreme Court decisions have clarified that whether a
statement is testimonial depends on the primary purpose for which the statement was
given or procured. In Davis v. Washington, the Court held that statements are not
testimonial if they are made in response to “police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” 547 U.S. 813, 822 (2006). Conversely,
similar statements would be testimonial if “the circumstances objectively indicate that

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there is no such ongoing emergency, and that the primary purpose of the interrogation
is to establish or prove past events potentially relevant to later criminal prosecution.”
Id. In Melendez-Diaz v. Massachusetts, affidavits from forensic analysts were held
to be testimonial not only because they 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,” but also because “the sole purpose of the affidavits was to
provide prima facie evidence” at trial. 129 S. Ct. 2527, 2532 (2009) (internal
quotations and citations omitted). The Court also noted that “public records are
generally admissible absent confrontation . . . 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.” Id. at 2539-40. Finally, after oral
argument in this case, the Supreme Court decided Michigan v. Bryant, in which the
Court affirmed that a statement is not testimonial if the statement was “not procured
with a primary purpose of creating an out-of-court substitute for trial testimony.”
131 S. Ct. 1143, 1155 (2011).1

The court correctly notes that Kirby was cited favorably in Crawford, Davis,
and Melendez-Diaz. But a closer reading of those cases indicates that none support
the analysis utilized by the court here. In each case, the Court’s citations to Kirby
indicate only that the materials at issue in Kirby were likely testimonial—but not

1
Our court has accordingly focused on the purpose a statement was made to
determine whether it is testimonial and within the scope of the Confrontation Clause.
See, e.g., United States v. Dale, 614 F.3d 942, 955-56 (8th Cir. 2010); United States
v. Honken, 541 F.3d 1146, 1160 (8th Cir. 2008). Our sister circuits have similarly
looked to the purpose a statement was made or procured in determining whether it is
testimonial. See, e.g., United States v. Naranjo, 634 F.3d 1198, 1213 (11th Cir. 2011);
United States v. Adams, 628 F.3d 407, 416 (7th Cir. 2010); United States v. Pablo,
625 F.3d 1285, 1291 (10th Cir. 2010); Miller v. Stoval, 608 F.3d 913, 924 (6th Cir.
2010); United States v. Ayala, 601 F.3d 256, 275 (4th Cir. 2010).
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because of the way they were used at trial.2 See Melendez-Diaz, 129 S. Ct. at 2534;
Davis, 547 U.S. at 825; Crawford, 541 U.S. at 59 n.9.3 In other words, the Court’s
citations affirm the validity of the outcome reached in Kirby, not Kirby’s method of
analysis for reaching that outcome. This distinction is particularly significant in light
of Crawford’s statement that while “the results of [the Court’s] decisions have
generally been faithful to the original meaning of the Confrontation Clause, the same
cannot be said of [its] rationales.” 541 U.S. at 60. Thus, this court should not
embrace Kirby’s method of analysis when it conflicts with Crawford’s “new rule”
simply because the Supreme Court has continued citing to Kirby. Rather, to determine
whether the statements contained in Mr. Causevic’s record of conviction are
testimonial, we must look to the primary purpose for which those statements were
made or procured.

I believe that Mr. Causevic’s record of conviction, as it was admitted at trial,
contained two types of statements—one of which is testimonial. First, the document
contained various details of Mr. Causevic’s prior trial such as the date of the trial and
the law he was convicted of violating. These statements are not testimonial because
they are public records, created for administrative purposes rather than for use at a
subsequent trial. See Melendez-Diaz, 129 S. Ct. at 2539-40; United States v. Torres-

2
Concluding that the materials at issue in Kirby were testimonial does not
resolve this case. There, the Government submitted numerous documents from the
prosecution of three other men including a copy of the grand jury indictment, the pleas
of guilty given by two of the defendants, and even a transcript from the trial of the
remaining defendant. Exh. A-L for Plaintiff, United States v. Kirby, No. 557 (D.S.D.
1897) (on file with The National Archives, Kansas City, Missouri). Here, the only
document challenged by Mr. Causevic on Confrontation Clause grounds is the record
of his previous conviction.
3
Melendez-Diaz and Crawford also cite Kirby as support for the proposition that
if a statement is testimonial, it can only be admitted if the defendant had a prior
opportunity to cross-examine the defendant. See Melendez-Diaz, 129 S. Ct. at 2534;
Crawford, 541 U.S. at 57.
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Villalobos, 487 F.3d 607, 613 (8th Cir. 2007); United States v. Weiland, 420 F.3d
1062, 1076-77 (9th Cir. 2005); see also United States v. Mendez, 514 F.3d 1035,
1044-45 (10th Cir. 2008) (collecting cases). Second, the document also contained a
factual narrative of the murder for which Mr. Causevic was convicted. The factual
narrative was merely a summary of the evidence submitted against Mr. Causevic
during his previous trial. Summary evidence is testimonial if the evidence underlying
the summary is testimonial. See United States v. Naranjo, 634 F.3d 1198, 1214 (11th
Cir. 2011); United States v. Jamieson, 427 F.3d 394, 411 (6th Cir. 2005). Because the
evidence underlying the factual narrative was undoubtedly testimonial, Crawford, 541
U.S. at 68, the factual narrative was also testimonial.

The Government offered the prior conviction as proof that Mr. Causevic
actually committed the charged offense rather than merely as proof of his conviction.
Thus, the factual narrative was also hearsay because it was offered for its truth. As
a result, these statements fall within the scope of the Confrontation Clause and could
not be admitted against Mr. Causevic absent a showing that the declarants were
unavailable and that Mr. Causevic had a prior opportunity to cross-examine the
declarants. Crawford, 541 U.S. at 54. I agree with the court that the Government
failed to show either requirement was met here, and therefore the admission of the
document violated Mr. Causevic’s rights under the Confrontation Clause. I therefore
concur in the result reached by the court.
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