Case: 08-40809 Document: 00511015543 Page: 1 Date Filed: 01/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2010
No. 08-40809
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENTINO MARTINEZ-RIOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.
PER CURIAM:
Florentino Martinez-Rios appeals his conviction of illegal reentry into the
United States. He argues that the prosecution’s reliance on a Certificate of Non-
existence of Record (“CNR”), without providing the testimony of the records an-
alyst, violated his Sixth Amendment rights under the Confrontation Clause. We
affirm.
Case: 08-40809 Document: 00511015543 Page: 2 Date Filed: 01/28/2010
No. 08-40809
I.
Border Patrol Agent Gerald Blanco observed three individuals hanging
from the side of a train passing through the inspection station in Gardendale,
Texas. Blanco began to follow alongside the train in his vehicle and saw one per-
son jump off and run into the brush. Blanco ordered the man who remained on-
board to step off; the man called out, and a woman emerged from the brush.
Blanco took the two individuals into custody and returned to the train with his
dog.
The dog alerted to a particular area near the train, where Blanco discov-
ered a third person, later identified as Martinez-Rios, hiding in the brush. Mar-
tinez-Rios said he was from Mexico and was undocumented.
Border Patrol Agent Marie Mireles helped to process Martinez-Rios at the
Border Patrol Station by taking his fingerprints and biographical information.
Mireles later testified that Martinez-Rios said he had crossed the Rio Grande the
previous day and then had boarded the train at Port Laredo.
The government charged Martinez-Rios with one count of illegal reentry
after deportation in violation of 8 U.S.C. § 1326. The government was required
to prove that (1) Martinez-Rios was an alien; (2) he had been denied admission,
excluded, deported, or removed or had departed the United States while an or-
der of exclusion, deportation, or removal was outstanding; (3) he had not re-
ceived consent to reapply for admission or demonstrated that such prior consent
was not required; and (4) he subsequently entered, attempted to enter, or was
at any time found in the United States. 8 U.S.C. § 1326.1
At trial, the government introduced the contents of Martinez-Rios’s alien
file, or “A-file,” which is the repository of immigration records on an alien. The
A-file includes the alien number assigned when an individual first encounters
1
See also United States v. Marte, 356 F.3d 1336, 1345 (11th Cir. 2004); United States
v. Serna-Villarreal 352 F.3d 225, 233 (5th Cir. 2003).
2
Case: 08-40809 Document: 00511015543 Page: 3 Date Filed: 01/28/2010
No. 08-40809
immigration authorities, along with aliases, fingerprints, applications for citizen-
ship, and removal documents. Border Patrol Agent Ramiro Melendez identified
Martinez-Rios’s A-file, No. A-21490464, which contained a CNR, authored by
A.W. Blakeway, a field office director with the U.S. Citizenship and Immigration
Services. The CNR stated the following:
3. [Director Blakeway] or an agency employee acting at [his] direc-
tion, performed a search for records relating to [File A-21490464].
Specifically this office searched Deportable Alien Control System
(DACS), Computer Linked Application Information Management
System (CLAIMS), and the Central Index System (CIS).
4. That after a diligent search was performed in these database sys-
tems, no record was found to exist indicating that [A-21490464] ob-
tained consent at anytime prior to March 1, 2003, from the Attorney
General of the United States, or at anytime after February 28, 2003
from the Secretary of the Department of Homeland Security, for re-
admission in the United States in accordance with the 6 U.S.C.
§§ 202(3) and (4) and U.S.C. § 557.
Blakeway was not called to testify regarding the certificate; instead, the prose-
cutor introduced that evidence through Melendez, who explained how a CNR
is processed.
Martinez-Rios’s counsel filed motions in limine seeking to prevent (1) ref-
erences by the government to Martinez-Rios’s prior criminal record; (2) referen-
ces to specific offenses during cross-examination of the defendant; (3) any refer-
ences to the A-file regarding Martinez-Rios’s prior criminal convictions; (4) any
references to Huntsville, Texas; and (5) evidence of Martinez-Rios’s post-arrest
silence and invocation of the right to counsel. None of those motions mentioned
the Sixth Amendment or the right to confront witnesses. At trial, Martinez-Ri-
os’s counsel objected to the introduction of the CNR on grounds that Melendez
had no personal knowledge of the case and was not the custodian of the records;
as before, he did not mention the Sixth Amendment.
3
Case: 08-40809 Document: 00511015543 Page: 4 Date Filed: 01/28/2010
No. 08-40809
Martinez-Rios argues that the introduction of the CNR violated his Sixth
Amendment right to confront the witnesses against him. He concedes that,
when he filed his appeal, United States v. Rueda-Rivera, 396 F.3d 678 (5th Cir.
2005), foreclosed that issue . In his opening brief, he contended that the then-
pending decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009),
might overrule Rueda-Rivera. The Supreme Court has since decided Melendez-
Diaz, and we must decide whether Rueda-Rivera remains the law of this circuit.
II.
We usually review an alleged Confrontation Clause violation de novo, sub-
ject to harmless-error analysis. United States v. Morgan, 505 F.3d 332, 338 (5th
Cir. 2007). In this instance, however, Martinez-Rios did not make a timely and
specific Confrontation Clause objection to the introduction of the CNR into evi-
dence. We therefore review that issue for plain error only. See United States v.
Acosta, 475 F.3d 677, 680-81 (5th Cir. 2007).
Before a forfeited error may be corrected on appeal, (1) there must be an
error (2) that is plain and (3) affects the defendant’s substantial rights. F ED. R.
C RIM. P. 52(b); see also United States v. Olano, 507 U.S. 725, 732-35 (1993). In
reviewing for plain error, this court looks to the law as it exists at the time of
appellate consideration. United States v. Dupre, 117 F.3d 810, 817 (5th Cir.
1997) (citing Johnson v. United States, 520 U.S. 461, 468 (1997)). Granting re-
lief under the plain-error standard of review is purely discretionary, and appel-
late courts should not exercise that discretion unless the error “‘seriously af-
fect[s] the fairness, integrity or public reputation of judicial proceedings.” Ola-
no, 507 U.S. at 732 (alteration in original) (quoting United States v. Young, 470
U.S. 1, 15 (1985)).
4
Case: 08-40809 Document: 00511015543 Page: 5 Date Filed: 01/28/2010
No. 08-40809
III.
A.
To decide whether the district court erred in admitting a CNR without
providing the testimony of the records analyst, we must first address the effect
of Melendez-Diaz on this court’s precedent. We can then apply that conclusion
to the facts.
1.
The Sixth Amendment guarantees a criminal defendant the right “to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. In Craw-
ford v. Washington, 541 U.S. 36, 53-54 (2004), the Court held that that right is
violated where the prosecution introduces “testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defen-
dant had had a prior opportunity for cross-examination.” The Court observed,
however, that certain statements, “by their nature [are] not testimonial—for ex-
ample, business records or statements in furtherance of a conspiracy.” Id. at 56.
The Court left “for another day any effort to spell out a comprehensive de-
finition of ‘testimonial,’” id. at 68, so the circuits necessarily developed their own
interpretation of what is a “testimonial statement” for Sixth Amendment pur-
poses. This issue gained particular importance in prosecutions under 8 U.S.C.
§ 1326 , because defendants claimed that the introduction of CNR’s without the
testimony of the preparers violated the Sixth Amendment. Before Melendez-
Diaz, we held that a CNR is akin to an ordinary business record and therefore
does not qualify as a testimonial statement subject to the Confrontation
Clause.2 A majority of our sister circuits that considered the question reached
2
See United States v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005); see also United
States v. Gutierrez-Gonzalez, 111 F. App’x 732, 734 (5th Cir. 2004).
5
Case: 08-40809 Document: 00511015543 Page: 6 Date Filed: 01/28/2010
No. 08-40809
the same conclusion.3
The decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009),
however, calls those cases into doubt. There the Court addressed the question
whether the introduction of a forensic analyst’s laboratory report, prepared for
use in a criminal prosecution to prove that bags seized by police and connected
with the defendant contained cocaine, violated the Sixth Amendment. Id. at
2530. The prosecution placed the bags into evidence with three “certificates of
analysis” that reported the weight of the bags and stated that they were found
to contain cocaine. Id. at 2530-31. The defendant objected to the certificates,
arguing that Crawford required the analysts to testify in person. Id. at 2531.
The Court characterized the certificates as falling “within the ‘core class
of testimonial statements’ [described in Crawford].” Id. at 2532. The Court rea-
soned that the certificates were sworn declarations of fact made for the purpose
of establishing or proving some fact—namely, that the substance found was co-
caine. Id. The affidavits thus 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.” Id. (quoting Crawford, 541 U.S. at 52).
The government concedes that Melendez-Diaz implicitly overruled Rueda-
Rivera, and we agree. First, Melendez-Diaz spoke directly to the issue in the in-
stant case. It found particularly analogous “the 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.” Id. at
2539.
3
See, e.g., United States v. Burgos, 539 F.3d 641, 645 (7th Cir. 2008); United States v.
Urqhart, 469 F.3d 745, 748-49 (8th Cir. 2006); United States v. Cervantes-Flores, 421 F.3d 825,
830-34 (9th Cir. 2005); cf. United States v. Salinas-Valenciano, 220 F. App’x 879, 883 (10th Cir.
2007) (holding that a CNR is testimonial); United States v. Earle, 488 F.3d 537, 545 (1st Cir.
2007) (declining to decide whether admitting CNR violates Confrontation Clause).
6
Case: 08-40809 Document: 00511015543 Page: 7 Date Filed: 01/28/2010
No. 08-40809
Like the testimony of the analysts in this case, the clerk’s state-
ment 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 con-
frontation.
Id. (citing People v. Bromwich, 93 N.E. 933, 934 (N.Y. 1911); People v. Goodrode,
94 N.W. 14, 16 (Mich. 1903)). Though not strictly necessary for the disposition
in Melendez-Diaz, the discussion of clerks’ certificates is highly suggestive that
Rueda-Rivera is no longer good law.
Further, the holding in Melendez-Diaz relies on a key distinction between
records that are kept in the ordinary course of business and those that are spe-
cifically produced for use at trial:. The latter are “testimonial” and are at the
heart of statements triggering the Confrontation Clause. CNR’s are not rou-
tinely produced in the course of government business but instead are exclusive-
ly generated for use at trial. They are, therefore, testimonial.
Also important to the rationale in Melendez-Diaz, 129 S. Ct. at 2533, is
the fact that the affidavits in question were used to establish a necessary fact
to convict: that the bags contained cocaine. CNR’s serve a comparable purpose
in § 1326 cases: They establish that there is no record indicating that the alien
had obtained government consent to reapply for admissionSSa fact necessary to
convict. See 8 U.S.C. § 1326(a); see also 6 U.S.C. § 202(3)-(4). CNR’s thus cer-
tainly fall within the scope of Melendez-Diaz.4 Because our holding in Rueda-
Rivera that CNR’s are not testimonial statements cannot survive Melendez-Diaz,
4
The Second Circuit reached the same conclusion on a Confrontation Clause objection
to the use of a CNR in a § 1326 case. See United States v. Madarikan, No. 08-5589-cr, 2009
WL 4826912 (2d Cir. Dec. 16, 2009) (unpublished).
7
Case: 08-40809 Document: 00511015543 Page: 8 Date Filed: 01/28/2010
No. 08-40809
Rueda-Rivera is overruled.5
2.
Under Melendez-Diaz, 129 S. Ct. at 2539 , Martinez-Rios’s Sixth Amend-
ment rights were violated. Blakeway did not testify at Martinez-Rios’s trial, de-
spite having prepared the CNR. The government introduced the CNR through
the testimony of Melendez, who explained how a CNR is ordinarily prepared.
Melendez personally reviewed Martinez-Rios’s A-file but did not conduct a
search of any of the computerized databases associated with the CNR. Mar-
tinez-Rios was unable to cross-examine the person who had prepared a testimon-
ial 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.
B.
Martinez-Rios must also demonstrate that the error was plain and that it
affected his substantial rights. See Olano, 507 U.S. at 732-35. The parties focus
on the latter inquiry. To demonstrate that an error affects substantial rights,
a defendant must show “a reasonable probability that, but for [the Confrontation
Clause violation], the result of the proceeding would have been different.”6 Mar-
tinez-Rios argues that the CNR was the government’s only evidence that he had
not obtained consent to reapply for entry into the United StatesSSa fact essen-
tial to his conviction. The government, citing United States v. Nutall, 180 F.3d
182, 188 (5th Cir. 1999), counters that the Confrontation Clause violation was
5
See United States v. Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007) (“Absent an
en banc or intervening Supreme Court decision, one panel of this court may not overrule a pri-
or panel’s decision.”).
6
United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)); see also United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th
Cir. 2006).
8
Case: 08-40809 Document: 00511015543 Page: 9 Date Filed: 01/28/2010
No. 08-40809
harmless, because there was otherwise considerable evidence that Martinez-Rios
had not sought consent to reapply.
Indeed, the 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 north-
bound 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 Unit-
ed 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 proba-
bility that Martinez-Rios would have been acquitted. See Nutall, 180 F.3d at
188.
Other courts have held that the introduction of a CNR in violation of the
Sixth Amendment is harmless error where additional evidence is sufficient to
establish that an alien never obtained the required consent to reapply for entry.7
We agree; the error in admitting the CNR without the opportunity for confronta-
7
See, e.g., United States v. Madarikan, 2009 WL 4826912, at *2 (2d Cir. Dec. 16, 2009)
(unpublished); United States v. Corona-Rivera, 2009 WL 3490286, at *2 (S.D. Cal. Oct. 26,
2009) (holding that admission of CNR was harmless beyond a reasonable doubt in light of bor-
der patrol agent’s testimony that he had searched defendant’s A-file and found no application
for permission to reenter the United States and alien’s admission that he had no immigration
documents); United States v. Diaz-Delgado, 2009 WL 3384181, at *2 (S.D. Cal. Oct. 16, 2009)
(same); cf. United States v. Salinas-Valenciano, 220 F. App’x 879, 885 (10th Cir. 2007) (“The
CNR was the government’s sole evidence to prove that Mr. Salinas-Valenciano never suc-
cessfully applied for re-entry. Without that evidence, the proof against the defendant is insuf-
ficient to sustain the charges.”).
9
Case: 08-40809 Document: 00511015543 Page: 10 Date Filed: 01/28/2010
No. 08-40809
tion did not affect Martinez-Rios’s substantial rights.
The judgment of conviction is AFFIRMED.
10