                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 05-3942
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                 v.

BRIAN K. ELLIS,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
      for the Southern District of Indiana, Evansville Division.
              No. 04 CR 22—Richard L. Young, Judge.
                          ____________
  ARGUED FEBRUARY 17, 2006—DECIDED AUGUST 22, 2006
                   ____________


 Before FLAUM, Chief Judge, and KANNE and WOOD, Circuit
Judges.
  KANNE, Circuit Judge. After being convicted at trial
on three counts of illegal possession of firearms, Brian K.
Ellis was sentenced as an armed career criminal to 300
months’ imprisonment. He now raises three issues on
appeal, including one argument relying on the decision of
Crawford v. Washington, 541 U.S. 36 (2004). We affirm.


                          I. HISTORY
  Ellis was pulled over in Gibson County, Indiana, when a
police officer noticed him driving erratically. He failed some
2                                                No. 05-3942

initial field sobriety tests, but a field test for the presence
of alcohol came up negative. With the officer’s prompting,
Ellis agreed to go to a hospital to have his blood and urine
tested for drugs.
  At this point, the officer placed Ellis in custody. An
inventory search of the pickup truck Ellis was driving led to
the discovery of a loaded .22 caliber revolver on the driver’s
side floorboard, .22 caliber ammunition scattered through-
out, drug paraphernalia, and several cans of beer. The only
other passenger, Bradley Ventress, was interviewed and
quickly denied ownership of the gun. Ellis, who has a
lengthy criminal history including three felony convictions,
also disclaimed ownership of the gun.
  After undergoing tests at a local hospital, Ellis was
released from custody. A warrant was later issued for his
arrest on a state DUI charge. That state charge was
followed by a federal indictment charging Ellis with
unlawful possession of a firearm. Ellis was not interested in
facing the warrant or the indictment and apparently went
into hiding.
  About a month later, police were tipped off that Ellis
was at a residence in rural Illinois near the Indiana border.
The local authorities made plans to arrest him. Ellis had
other plans. As the jury heard, a sheriff’s deputy attempted
to effect a traffic stop on Ellis after he drove away from the
residence, but by the time Ellis’s car stopped, it was on fire.
He then jumped out of the car with a can of Coleman fuel in
his hands, which he used to feed the fire. After dousing the
flames and throwing the whole fuel can into the car, Ellis
ran into a cornfield. The Illinois State Police was called to
assist, and in a matter of hours Ellis was arrested. When
taken into custody, he had in his possession a .22 caliber
Beretta and a receipt from the retailer Wal-Mart. What the
jury did not hear was that before dousing his car with fuel
and fleeing the scene, Ellis led authorities on a harrowing
No. 05-3942                                                        3

car chase during which he repeatedly fired shots at the
police.1
  Subsequent investigation revealed that the Wal-Mart
receipt documented a recent purchase of ammunition.
Federal agents traced the receipt to a store in Vincennes,
Indiana, where they were able to obtain video footage (later
shown to the jury) of Ellis purchasing the ammunition.
  Ellis was charged by a superseding indictment with three
counts. Counts I and II, both based on the initial traffic stop
in Indiana, charged that he was a felon in possession in
violation of 18 U.S.C. § 922(g)(1), and a user of a controlled
substance in possession of a firearm in violation of
§ 922(g)(3), respectively. Count III charged that Ellis was a
felon in possession in violation of § 922(g)(1) based upon the
events leading to his final arrest in Illinois. The indictment
also alleged that Ellis would be subject to the fifteen-year
mandatory minimum of § 924(e) because of his three
previous felony convictions.
  A trial was held on all three counts over Ellis’s motion
to sever Count III. A certified copy of the results of Ellis’s
blood and urine tests was introduced at trial over Ellis’s
objection under Crawford. The results were introduced
as business records to help prove that Ellis was a user of
controlled substances. Authentication of these records
was established under Federal Rule of Evidence 902(11).2
The records were admitted during the testimony of the
arresting officer. He testified that he took Ellis to the



1
  The district court judge granted Ellis’s motion in limine to
preclude any mention at trial of him shooting at the police. At
sentencing, the local sheriff testified to being shot at by Ellis.
2
  Before trial, the government complied with Rule 902(11) and
provided written notice of its intent to offer the medical records by
a written declaration of the custodian. Ellis did not challenge the
authenticity of the records.
4                                                No. 05-3942

hospital and witnessed a lab technician draw blood and
Ellis urinate in a cup. He also testified that the results of
the urine tests were positive for methamphetamine.
  The actual exhibit of medical records admitted at trial
contains a number of pages, including a certification of
authenticity performed by a laboratory technician at the
local hospital. The exhibit also contains two forms filled out
at the local hospital, which apparently accompanied Ellis’s
blood and urine samples. These forms indicate that the
“Collector” of the samples was a person with the first name
Kristy. These forms were signed by Ellis and had a number
of preprinted “Reason[s] for Test.” The box checked on
Ellis’s forms indicates that the reason for his tests was
“Reasonable Suspicion/Cause.” Furthermore, in the section
of one of the forms indicating which tests would be per-
formed, presumably the form accompanying Ellis’s blood,
there is a handwritten note stating “Blood Drug
Screen—Requested by Officer.”
  The exhibit also includes pages indicating three sepa-
rate tests of Ellis’s samples. An initial test of Ellis’s urine
was performed by Kristy at the local hospital on the same
day Ellis was there. It returned a positive result for meth-
amphetamine. The samples were then apparently shipped
out of state to two separate companies for further
tests—one for blood and one for urine. Both companies
produced documents—dated after Ellis’s trip to the
hospital—indicating that Ellis had methamphetamine
in his system.
  The jury convicted on all counts. At sentencing, Ellis,
relying on United States v. Booker, 543 U.S. 220 (2005),
objected to the Presentence Report’s conclusion that he
should be sentenced as an armed career criminal, and other
enhancements, on the basis that the jury had not found all
the necessary predicate facts. The judge disagreed. The
resultant offense level and criminal history were 34 and VI,
respectively, which led to a Guidelines range of 262-327
No. 05-3942                                                 5

months’ imprisonment. U.S.S.G. § 4B1.4(b)(3)(A) (2004).
The judge sentenced Ellis to 300 months’ imprisonment.


                      II. ANALYSIS
  We can easily dispose of two of the issues. First, denial of
the severance motion, which we review for abuse of discre-
tion, was not reversible error. See United States v. Stokes,
211 F.3d 1039, 1042 (7th Cir. 2000) (citation omitted). We
approved of the joinder of four “discrete, unconnected” felon
in possession charges in United States v. Coleman by
emphasizing that the evidence was neither excessive nor
confusing and that an accusation of gun possession is
generally not unduly prejudicial to a defendant. 22 F.3d
126, 131-35 (7th Cir. 1994); see United States v. Walls, 80
F.3d 238, 242-43 (7th Cir. 1996) (approving the joinder of
two unconnected felon-in-possession charges). Here, all
three weapons charges “are of like class” as in Coleman, and
Ellis points to no facts indicating any materially greater
prejudice than that we have already considered insufficient
to require severance. See Coleman, 22 F.3d at 133.
  Second, we reject Ellis’s invitation to find error in his
being sentenced as an armed career criminal on the basis
that Almendarez-Torres v. United States, 523 U.S. 224
(1998), is no longer good law. This is something we cannot
do. See United States v. Stevens, 453 F.3d 963, 967 (7th Cir.
2006) (noting that “Almendarez-Torres remains intact”);
United States v. Browning, 436 F.3d 780, 782 (7th Cir.
2006) (explaining that the “continued authority of
Almendarez-Torres is not for us to decide”); see also United
States v. Williams, 410 F.3d 397, 402 (7th Cir. 2005) (“[T]he
district court does not violate a defendant’s Sixth Amend-
ment right to a jury trial by making findings as to his
criminal record that expose him to greater criminal penal-
ties.”) (citations omitted). There is also no merit in Ellis’s
argument that the district judge committed error in making
6                                               No. 05-3942

findings of fact to support other enhancements. See United
States v. Dean, 414 F.3d 725, 727-30 (7th Cir. 2005).
  Having dealt with those issues, we are left with Ellis’s
argument relying on Crawford attacking the admission of
the medical records establishing the presence of metham-
phetamine in his system. Evidentiary rulings affecting a
defendant’s right to confront witnesses are reviewed
de novo. United States v. Gilbertson, 435 F.3d 790, 794-95
(7th Cir. 2006) (citations omitted). The Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with witnesses
against him.” U.S. Const. amend. VI. As we now know, this
right applies only to evidence that is considered “testimo-
nial.” Davis v. Washington, 126 S.Ct. 2266, 2273-76
(2006). Hearsay evidence that is nontestimonial “is not
subject to the Confrontation Clause.” Id. at 2273. The
Supreme Court, however, has expressly declined to provide
a comprehensive definition of the term “testimonial.” Davis,
126 S.Ct. at 2273 (citation omitted); Crawford, 541 U.S. at
68.
  But we are not without guidance. The prototypical case of
testimonial evidence is that created by the civil-law tradi-
tion of a judicial officer examining a witness in private and
then later reporting the results in court. Crawford, 541 U.S.
at 43-44. This method was contrary to the common-law
tradition of “live testimony in court subject to adversarial
testing,” but, nonetheless, it was utilized at times by
English courts. Id. An infamous example of the use of this
type of testimonial evidence is the treason trial of Sir
Walter Raleigh. Id. at 44. The crucial evidence used against
Raleigh was the statement of an alleged accomplice impli-
cating Raleigh. Despite Raleigh’s cry to “[c]all my accuser
before my face,” the statement was not given by way of live
testimony. See id. (citing Raleigh’s Case, 2 How. St. Tr. 1,
15-16 (1603)). Instead, it was introduced in the form of a
letter that was created during a pretrial examination of the
No. 05-3942                                                7

accomplice. As the Court in Crawford explained, this
method of producing and introducing evidence was the
“principal evil at which the Confrontation Clause was
directed.” Id. at 50. Accordingly, when the Court later
provided guidance as to what constitutes testimonial
evidence, it explained, “[w]hatever else the term [testimo-
nial] covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations. These are the modern
practices with closest kinship to the abuses at which the
Confrontation Clause was directed.” Id. at 68.
   On the other end of the spectrum, the Court in Crawford
explicitly noted, quite importantly for this case, that
business records “by their nature were not testimonial.” Id.
at 56; see also id. at 75 (Rehnquist, C.J., concurring in
judgment) (noting the majority had excluded business
records from the definition of testimonial evidence). Thus,
it is clear that statements embodied in a business record
are nontestimonial. Id.
  The disputed tests were introduced as a business record
under Federal Rules of Evidence 803(6) and 902(11), and we
note that Ellis has advanced no argument here or objection
below under those rules. His only claim of error is under
Crawford. Neither his argument here nor his objection
below were particularly well-developed. Nevertheless, we
will construe his argument as one directed not only to the
business records themselves, but also to the certification of
those records pursuant to Rule 902(11). We will consider
these in turn.


  A. The Business Records of the Underlying Medical Tests
  Faced with the obvious obstacle of the Court’s designation
of business records as nontestimonial, Ellis attacks the
underlying medical records by arguing that they
were created not because of routine medical procedures, but
8                                                No. 05-3942

because of a government investigation. What we gather
from this argument is that most business records would by
their very nature have been created prior to
any investigation of criminal activity, and that these are the
type of business records the Court had in mind. The records
used against Ellis, however, might be considered testimo-
nial because they were created under police supervision and
during an investigation for the purpose of determining
whether a crime had been committed.
  Whether a statement was made with an eye toward
prosecution, that is, with the knowledge or for the purpose
that it would be used later for prosecution, is an important
aspect of delineating between testimonial and nontesti-
monial evidence. Two of the possible definitions of testimo-
nial provided by the Court in Crawford focus on this
circumstance. See Crawford, 541 U.S. at 51-52 (“ex parte in-
court testimony or its functional equivalent . . . that
declarants would reasonably expect to be used
prosecutorially” and “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”) (citations omitted). And the courts
of appeals have taken to defining testimonial in terms of
whether the declarant reasonably expected the statement
to be used prosecutorially. E.g., United States v. Maher, 454
F.3d 13, 21 (1st Cir. 2006) (holding a statement to be
testimonial because “it [was] clear that an objectively
reasonable person in [the declarant’s] shoes would under-
stand that the statement would be used in prosecuting [the
defendant] at trial”); United States v. Hinton, 423 F.3d 355,
359 (3d Cir. 2005) (explaining that statements are testimo-
nial when “made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial”) (citations and
quotations omitted); United States v. Cromer, 389 F.3d 662,
673-74 (6th Cir. 2004) (explaining that a statement is
No. 05-3942                                                9

testimonial when “a reasonable person in the declarant’s
position would anticipate his statement being used against
the accused in investigating and prosecuting the crime”);
United States v. Saget, 377 F.3d 223, 228-29 (2d Cir. 2004)
(“Crawford at least suggests that the determinative factor
in determining whether a declarant bears testimony is the
declarant’s awareness or expectation that his or her
statements may later be used at a trial.”); see also Richard
D. Friedman, Confrontation: The Search for Basic Princi-
ples, 86 Geo. L.J. 1011, 1042-43 (1998) (defining a testimo-
nial statement as one made when the declarant “anticipates
that the statement will be used in the prosecution
or investigation of a crime”).
  We, in fact, have previously rejected a Crawford argu-
ment on the basis that the challenged statements (certified
certificates of vehicle titles, including odometer statements
used to prove fraud) were “not testimonial because they
were not made with the respective declarants having an eye
towards criminal prosecution.” United States v. Gilbertson,
435 F.3d 790, 795-96 (7th Cir. 2006) (citing Crawford, 541
U.S. at 56 n.7).
  Given the focus of the courts of appeals and our own
precedent on the declarant’s reasonable expectations of
whether a statement would be used prosecutorially, Ellis
may appear to be on strong ground in arguing that the
results of his medical tests were testimonial. It must have
been obvious to Kristy (the laboratory technician at the
local hospital) that her test results might end up as evi-
dence against Ellis in some kind of trial. After all, she
indicated on the form that the reason for the tests was
“Reasonable Suspicion/Cause.” Moreover, the police officer’s
participation in initiating these tests—the officer accompa-
nied Ellis to the hospital and even watched him urinate in
a cup—would also have led Kristy to believe that her test
results would be used for criminal prosecution. The same
might go for the professionals performing the tests out of
10                                              No. 05-3942

state. The forms which we assume accompanied the sam-
ples bore the ominous “Reasonable Suspicion/Cause”
indication checked by Kristy, and the blood sample form
also had the notation that it was “Requested by Officer.”
  Nevertheless, we do not think these circumstances
transform what is otherwise a nontestimonial business
record into a testimonial statement implicating the Con-
frontation Clause. There is no indication that the observa-
tions embodied in Ellis’s medical records were made in
anything but the ordinary course of business. Such observa-
tions, the Court in Crawford made clear, are
nontestimonial. 541 U.S. at 56. And we do not think it
matters that these observations were made with the
knowledge that they might be used for criminal prosecution.
Prior to the Court’s decision in Davis, two other courts of
appeals decided that certificates of nonexistence of record
(“CNR”), admitted under Rule 803(10) and used to prove an
alien did not receive permission from the Attorney General
to reenter the country, were nontestimonial despite the fact
they were prepared by the government in anticipation of a
criminal prosecution. See, e.g., United States v. Cervantes-
Flores, 421 F.3d 825, 833 (9th Cir. 2005); United States v.
Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005). The focus
of these decisions was that the preparation of these CNRs
was routine, and the statements in them were simply too
far removed from the examples of testimonial evidence
provided by Crawford. Cervantes-Flores, 421 F.3d at 833-34;
Rueda-Rivera, 396 F.3d at 680.
  We agree with these courts that the mere fact a person
creating a business record (or other similar record) knows
the record might be used for criminal prosecution does
not by itself make that record testimonial. The Court’s
recent decision in Davis (though we recognize the Court
made no such pronouncement) supports this conclusion
because we think it necessarily rejects a strict adherence to
denominating as testimonial all statements made
No. 05-3942                                                     11

under circumstances where a reasonable person would
know the statements might be used as evidence of a crime.
  In Davis, the Court addressed a statement made by
a woman to a 911 operator reporting she had been as-
saulted. 126 S.Ct. at 2270-71. That recorded statement was
later used at trial to prosecute Davis (the woman’s former
boyfriend) for a felony violation of a domestic no-contact
order. Id. at 2271. The Court considered the 911 operator’s
questioning of the woman to be an interrogation, id. at 2274
n.1, and the operators themselves to be at least “agents of
law enforcement,” id. at 2274 n.2. In the face of Davis’s
objection that introduction of the statement violated the
Sixth Amendment, the Court held that when the objective
circumstances indicate the “primary purpose” of police
interrogation is to meet an ongoing emergency, the state-
ments elicited in response are nontestimonial. Id. at 2273-
74. We believe this holding necessarily implies that con-
sciousness on the part of the person reporting an emergency
(or the police officer eliciting information about the emer-
gency) that his or her statements might be used as evidence
in a crime does not lead to the conclusion ipso facto that the
statement is testimonial. A reasonable person reporting a
domestic disturbance, which is what the declarant in Davis
was doing, will be aware that the result is the arrest and
possible prosecution of the perpetrator. See, e.g., Richard D.
Friedman & Bridget McCormack, Dial-In-Testimony, 150 U.
Pa. L. Rev. 1171, 1199 (concluding that most 911 callers
know that by reporting domestic violence “they are practi-
cally ensuring that the other person will be arrested, and
that a criminal prosecution will probably follow”). So it
cannot be that a statement is testimonial in every case
where a declarant reasonably expects that it might be
used prosecutorially.3


3
  The justice dissenting in the Supreme Court of Washington’s
ruling in State v. Davis found the statements to be testimonial in
                                                     (continued...)
12                                                     No. 05-3942

  While the medical professionals in this case might have
thought their observations would end up as evidence in a
criminal prosecution, the objective circumstances of this
case indicate that their observations and statements
introduced at trial were made in nothing else but the
ordinary course of business. Therefore, when these pro-
fessionals made those observations, they—like the declarant
reporting an emergency in Davis—were “not acting as . . .
witness[es];” and were “not testifying.” See Davis, 126 S.Ct.
at 2277 (emphasis in original). They were employees simply
recording observations which, because they were made in
the ordinary course of business, are “statements that by
their nature were not testimonial.” Crawford, 541 U.S. at
56.


    B. Certification Pursuant to Rule 902(11)
   Prior to Crawford, we held that Rule 803(6) remained a
firmly rooted exception to the hearsay rule, and, therefore,
did not violate the Confrontation Clause despite the then-
recent amendment allowing authentication by written
certification pursuant to Rule 902(11). See United States
v. Klinzing, 315 F.3d 803, 809-10 (7th Cir. 2003). The
question we must answer in the wake of Crawford is
whether a written certification attesting to the authenticity
of a business record is testimonial evidence. Davis, 126
S.Ct. at 2274-76. We do not think it is.



3
   (...continued)
large part because the 911 caller had to have known her call
would be used prosecutorially. 111 P.3d 844, 853 (Wash. 2005)
(“[I]t is clear that a reasonable person in [the declarant’s] position
would have known that her 911 call would have resulted in Davis’
prosecution and that the information relayed in the call would be
used in that prosecution.”) (Sanders, J., dissenting).
No. 05-3942                                                 13

  As should be clear, we do not find as controlling the fact
that a certification of authenticity under 902(11) is made in
anticipation of litigation. What is compelling is that
Crawford expressly identified business records as
nontestimonial evidence. Crawford, 541 U.S. at 56. Given
the records themselves do not fall within the constitu-
tional guarantee provided by the Confrontation Clause, it
would be odd to hold that the foundational evidence authen-
ticating the records do. We also find support in the decisions
holding that a CNR is nontestimonial. See, e.g., Cervantes-
Flores, 421 F.3d at 833; Rueda-Rivera, 396 F.3d at 680. A
CNR is quite like a certification under 902(11); it is a signed
affidavit attesting that the signatory had performed a
diligent records search for any evidence that the defendant
had been granted permission to enter the United States
after deportation. Cervantes-Flores, 421 F.3d at 831; Rueda-
Rivera, 396 F.3d at 679.
  The certification at issue in this case is nothing more than
the custodian of records at the local hospital attesting that
the submitted documents are actually records kept in the
ordinary course of business at the hospital. The statements
do not purport to convey information about Ellis, but merely
establish the existence of the procedures necessary to create
a business record. They are made by the custodian of
records, an employee of the business, as part of her job. As
such, we hold that the written certification entered into
evidence pursuant to Rule 902(11) is nontestimonial just as
the underlying business records are. Both of these pieces of
evidence are too far removed from the “principal evil at
which the Confrontation Clause was directed” to be consid-
ered testimonial. Crawford, 541 U.S. at 50.


                    III. CONCLUSION
  For the foregoing reason, Ellis’s convictions and sen-
tence are AFFIRMED.
14                                        No. 05-3942


A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-22-06
