          United States Court of Appeals
                     For the First Circuit

No. 15-2133
                         SINY VAN TRAN,
                     Petitioner, Appellant,

                               v.

                           GARY RODEN,
                      Respondent, Appellee.


No. 15-2134
                          NAM THE THAM,
                     Petitioner, Appellant,

                               v.

                        LISA A. MITCHELL,
                      Respondent, Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
            [Hon. Indira Talwani, U.S. District Judge]


                              Before
                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Janet Hetherwick Pumphrey, for appellant Siny Van Tran.
     Robert F. Shaw, Jr., with whom Law Offices of Robert F. Shaw,
Jr. was on brief, for appellant Nam The Tham.
     Thomas E. Bocian, Assistant Attorney General, Criminal
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for appellees Roden and Mitchell.
January 30, 2017
             TORRUELLA, Circuit Judge.             Petitioners-appellants, Siny

Van Tran ("Tran") and Nam The Tham ("Tham"), contest the district

court's denial of their petitions for writs of habeas corpus under

28    U.S.C.      §    2254.     They    argue     that    the     Commonwealth   of

Massachusetts's         use     of   photocopies   of     United   Airlines   flight

records      at       their     trials    violated      their      Sixth   Amendment

Confrontation          Clause    rights,    albeit      for   slightly     different

reasons.       Tran contends that he had a right to confront someone

who   knew     about      United      Airlines's     procedures      for   verifying

passenger identities at the time of the flight.                       Tham contends

that he had a right to confront the person who created the records.

After careful consideration, we affirm the district court's denial

of habeas corpus relief.

                                     I. Background1

             On January 12, 1991, six men were shot, execution-style,

in the basement of an illegal gambling club in Boston's Chinatown

district; only one survived the resulting injuries. Commonwealth

v. Siny Van Tran, 953 N.E.2d 139, 145 (Mass. 2011).                    According to

the testimony of the surviving victim, Pak Wing Lee ("Lee"), and


1  Because we must accept the findings of fact of the state court
unless convinced by clear and convincing evidence they are in
error, we recount the facts as found by the Supreme Judicial Court,
and note supplementary facts from the record as such. Lynch v.
Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v.
Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)).


                                           -3-
the proprietor of the gambling club, Yu Man Young, Tran arrived at

the gambling club at approximately 2:30 a.m. with another one of

the victims after they had both been drinking at a nightclub

together.    Tran soon left by himself, returned to the gambling

club, and left again.    Tran returned once again, this time with

Tham and another man, Hung Tien Pham ("Pham").       All three had

guns.   Upon entering the club, they told everyone to stop moving

and kneel down.    Lee felt a gun placed to the back of his head,

heard a bang, and lost consciousness.       Two hours later, Lee

regained consciousness and stumbled out of the building to find

help.    A young couple passing by saw him and flagged down a

security guard at a nearby hospital.   The security guard contacted

two police officers who entered the gambling club and found five

people dead, all with gunshot wounds to the head.

            Arrest warrants were issued for Tran, Tham, and Pham

after the shootings, but they had already left the United States.

Authorities in China arrested Tran in 1999, and Tham in 2000.2   A

grand jury in Massachusetts state court indicted Tran and Tham in

1999, and they were extradited from Hong Kong in December of 2001.

            The Commonwealth jointly tried Tran and Tham in 2005.

At trial, the Commonwealth sought to introduce a passenger manifest



2   Pham has never been detained.


                                -4-
and ticket inquiry showing that on February 1, 1991 -- three weeks

after the gambling club shooting -- passengers named Wah Tran,3

Nam The Tham, and Hung Tien Pham flew on United Airlines ("United")

from New York City to Hong Kong via Narita, Japan.      The flight

manifest -- a computer-generated report created for the pilot and

flight crew listing all of the passengers on a flight with each

passenger's seat number -- showed that "Wah Tran" sat in seat 53F

and "Nam The Tham" sat in seat 46J on a flight from New York to

Narita and both passengers had a connecting flight to Hong Kong.

The manifest also showed that someone named "Hung Tien Pham" was

on the flight and that the passengers named Tran, Tham, and Pham

had the same "group code," meaning that they had purchased their

tickets together.    The ticket inquiry -- a computer-generated

report from United's ticket database -- showed that tickets for

"Tran/Wah Mr.," "Tham/Nam The Mr.," and "Pham/Hung Tien Mr." were

purchased on the same date (January 30, 1991) and, based on their

consecutive ticket information numbers, around the same time.   An

unidentified United employee gave the Boston police the manifest

and ticket inquiry on February 12, 1991.

          The Commonwealth argued that these records helped prove

that Tran and Tham fled the country, and their flight was evidence


3  It is not disputed that Tran obtained a passport issued in the
name of Wah Tran.


                               -5-
of their consciousness of guilt.            Both Tran and Tham sought to

exclude the documents on the grounds that they were improperly

authenticated,     were    inadmissible     hearsay,    and    violated     their

Confrontation     Clause    rights.     Their   motions       were   ultimately

denied,4 and the Commonwealth introduced the manifest and ticket

inquiry   as    business   records    through   the     testimony     of    David

Contarino ("Contarino"), the business manager of United in Boston.

Contarino began working for United in 1999, and therefore was not

a United employee at the time of the flight in question in 1991.

Contarino      authenticated   the    documents    by    stating     that    the

passenger manifest and ticket inquiry contained almost the exact

same identifying information that then-current United passenger

manifests and ticket inquiries contained, and he described the

various numbers and codes on each item.           Contarino also testified

that United created manifests and kept ticket information in the

regular course of business.           He stated that a United employee

created a manifest before every flight to give to the crew.

Contarino further testified that United entered information about



4  The trial court originally ruled in Tran and Tham's favor, but
the Commonwealth sought interlocutory review by the Supreme
Judicial Court of Massachusetts. A single justice resolved the
appeal and concluded that the manifest and ticket inquiry were
admissible subject to the prosecution laying a proper foundation.
The prosecution did so, and then the district court admitted the
documents.


                                      -6-
every ticket at the time of purchase and stored that information

in order to comply with federal regulations and for "revenue

collection from credit card companies."

           The jury convicted Tran and Tham of five counts of first-

degree murder on theories of deliberate premeditation and extreme

atrocity or cruelty, one count of armed assault with intent to

murder, and one count of carrying a firearm without a license.

Both petitioners were sentenced on the murder charges to five

consecutive terms of life in prison.           On the additional charges,

they were both sentenced to an aggregate of twenty-four to twenty-

five years to follow the consecutive life sentences.

           Tran and Tham appealed their convictions to the Supreme

Judicial Court of Massachusetts ("SJC"), asserting -- among other

issues -- that the trial court erred in admitting the passenger

manifest and ticket inquiry.           In 2011, the SJC affirmed the

convictions,   stating   that    the     "jury    could    rationally      have

concluded . . . that the documents were authentic," that the names

on the documents were not hearsay because they "were not offered

for their truth," and that the documents were not testimonial for

Sixth   Amendment   purposes    and,   thus,     their    rights   under    the

Confrontation Clause had not been violated.              Siny Van Tran, 953

N.E.2d at 152, 154-57.




                                   -7-
             Tran and Tham filed petitions for writs of habeas corpus

with the district court in 2013.        Petitioners argued that their

incarcerations violated federal law in a number of ways, including

that they were deprived of the federal constitutional right to

confront the witnesses against them.        The district court denied

each petition and issued a certificate of appealability with

respect to the Confrontation Clause claim.       Their timely appeals

followed.

                             II. Analysis

A. Antiterrorism and Effective Death Penalty Act Standards

             We review petitioners' claims under the deferential lens

of the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA").     Under AEDPA, habeas relief will not be granted unless

the state court's adjudication of the claim on the merits "resulted

in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1),

or "resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding," id. § 2254(d)(2); Zuluaga v. Spencer,

585 F.3d 27, 29 (1st Cir. 2009).

             It is well established that

       [a] state court decision is contrary to clearly
       established federal law if the state court applies a

                                  -8-
            rule that contradicts the governing law set forth by
            the Supreme Court or confronts a set of facts that
            are materially indistinguishable from a decision of
            [the Supreme Court] and nevertheless arrives at a
            result different from [its] precedent.

Linton v. Saba, 812 F.3d 112, 122 (1st Cir. 2016) (alterations in

the original) (citations and internal quotation marks omitted).

"And    a    state   court   adjudication    constitutes      an   unreasonable

application [of clearly established federal law] if the state court

identifies the correct governing legal principle from the Supreme

Court's      then-current    decisions   but     unreasonably      applies   that

principle to the facts of the prisoner's case."               Id. (alteration

in the original) (citations and internal quotation marks omitted).

               "A state court's determination that a claim lacks merit

precludes federal habeas relief so long as 'fairminded jurists

could       disagree'   on   the   correctness    of   [the   state    court's]

decision."       Id. at 122-23 (alteration in the original) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).                    "Thus, to

obtain federal habeas relief, a petitioner must show 'the state

court's ruling on the claim . . . was so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.'"

Id. at 123 (quoting Harrington v. Richter, 562 U.S. 86, 103

(2011)).




                                       -9-
B. Petitioners' Claims

            Petitioners argue that the introduction of the flight

manifest and ticket inquiry at trial violated their Confrontation

Clause rights.    Specifically, Tran argues that the admission of

the flight manifest and ticket inquiry violated his Confrontation

Clause right because he was not able to confront a witness who

could testify that he and Tham were the individuals who boarded

the United flight.      Tran contends that the manifest and ticket

inquiry    contained   two    levels    of   hearsay:    (1)   the    documents

themselves were out-of-court statements made by whoever created

them; and (2) the names of the passengers were recorded by an out-

of-court   declarant   who,    in   turn,    relied     on   the   out-of-court

statements of the passengers who gave their names.                 Tran argues

that Contarino's testimony did not address United's procedures for

verifying passengers' identities in 1991 and therefore only cured

the first level of hearsay.            He claims that he had a right to

confront someone who had personal knowledge about the accuracy of

the names contained in the manifest given that, according to him,

the Commonwealth relied on the documents for their truth -- i.e.,

to prove that he was on the flight from Boston to Narita and Hong

Kong.

            Additionally, Tran argues that the SJC's application of

the facts was objectively unreasonable in holding that Contarino's


                                    -10-
testimony properly authenticated the airline documents.                       According

to him, the Commonwealth needed to produce a witness who could

explain where the documents came from.

               Tham makes a slightly different argument than Tran.

Tham argues that the admission of the manifest and ticket inquiry

was improper because he did not have an opportunity to confront

the individual who produced those documents.                        Tham contends that

the    SJC    had    no     way   of    knowing      whether    the    documents      were

testimonial or not because of the lack of information presented

about how they were produced.                He notes that in the context of the

Fifth Amendment's right against self-incrimination, the production

of records can be incriminating testimony.                     Tham argues that this

rule   applies       in     the   Sixth      Amendment      context,    and    that   the

Commonwealth's failure to present any evidence as to how the police

obtained       the    documents        or    where   they    came     from    creates   a

Confrontation Clause violation.

C. Discussion

               In    this    case,     the    SJC    held    that     Tran   and   Tham's

Confrontation Clause rights were not violated because the manifest

and ticket inquiry were neither testimonial nor offered for their

truth.       Siny Van Tran, 953 N.E.2d at 154-57.               The SJC stated that

the passenger manifest and ticket inquiry were admissible under

the business records exception to the state rule against hearsay


                                             -11-
evidence, Mass. Gen. Laws ch. 233, § 78.                Id. at 154.           The SJC

also   concluded      that    the     statements    contained       within      these

documents were not offered for their truth, but rather for a

nonhearsay purpose -- to show "that the statements were made by

someone,    even,     perhaps,    a   person   being    untruthful,      who       held

themselves out to be these men."               Id. at 155.          The SJC also

concluded     that,     based    on    Contarino's      testimony       and        other

circumstantial      evidence     introduced    at   trial,       "the   jury       could

rationally    have     concluded,      applying     a   preponderance         of     the

evidence standard, that the documents were authentic."                         Id. at

152-53.

             As to the confrontation challenge, the SJC noted that

"the   [C]onfrontation          [C]lause    guarantees       a    defendant          the

opportunity to confront any person, in the 'crucible of cross-

examination,'       whose    'testimonial'     statements         are   introduced

against him."       Id. at 156 (quoting Crawford v. Washington, 541

U.S. 36, 50-52, 61 (2004)).                It stressed that "[i]t is the

testimonial character of any item of evidence that triggers the

confrontation right."        Id. (citing Meléndez–Díaz v. Massachusetts,

557 U.S. 305, 324 (2009)).              It further noted that, as "[t]he

Supreme Court has stated: '[b]usiness and public records are

generally admissible absent confrontation . . . because -- having

been created for the administration of an entity's affairs and not


                                       -12-
for the purpose of establishing or proving some fact at trial --

they    are   not   testimonial.'"         Id.    (third      alteration       in    the

original) (quoting Meléndez-Díaz, 557 U.S. at 324).                         Relying on

these    Supreme     Court    precedents,       the   SJC    concluded       that    the

passenger     manifest    and    ticket    inquiry     were    created       "for    the

administration of an entity's affairs," and not in anticipation of

use at trial, as evidenced by Contarino's testimony, and, thus,

the     documents     were    not      testimonial     and     Tran    and      Tham's

Confrontation Clause rights had not been violated.                    Id. at 156-57

(quoting Meléndez–Díaz, 557 U.S. at 324).

              The district court determined that the SJC's conclusion

that the documents were not testimonial and, thus, petitioners'

Confrontation       Clause    rights    were    not   implicated,      was     not   an

unreasonable application of Supreme Court precedent.                   Accordingly,

it denied habeas relief.

              We review the district court's denial of habeas relief

de novo.      Sánchez v. Roden, 753 F.3d 279, 293 (1st Cir. 2014).

The district court is not entitled to deference.                Healy v. Spencer,

453 F.3d 21, 25 (1st Cir. 2006).                  Rather, we must "determine

whether the habeas petition should have been granted in the first

instance."     Sánchez, 753 F.3d at 293.

              Because    it     is   undisputed       that    the     SJC     properly

recognized the controlling Supreme Court precedent, see Siny Van


                                         -13-
Tran, 953 N.E.2d at 156 (citing Crawford, 541 U.S. at 51-52, 61;

Meléndez-Díaz, 557 U.S. at 323-26), the SJC's determination that

the   admission      of   the    airline       records   did       not   violate     the

Confrontation Clause will be upheld unless the SJC applied the

principles     of    Crawford     and    Meléndez-Díaz        in    an    objectively

unreasonable     manner     or    unreasonably       refused       to    extend    those

principles to a new context where they should clearly apply.

See Linton, 812 F.3d at 122.

             As the SJC correctly noted, the Confrontation Clause

applies   only       to   evidence      that    is   testimonial.           Davis    v.

Washington, 547 U.S. 813, 823-25 (2006).                 The Supreme Court has

defined a "core class" of testimonial statements as including

affidavits, custodial examinations, or prior testimony without

cross-examination.          Crawford,      541    U.S.   at     51.       Testimonial

statements also include those made with "a primary purpose of

establishing or proving past events potentially relevant to later

criminal prosecution."           Bullcoming v. New Mexico, 564 U.S. 647,

659 n.6 (2011) (quotations and brackets omitted).                          Generally,

courts do not label business records as testimonial as long as

they are not created for the purpose of prosecution.                        Meléndez-

Díaz, 557 U.S. at 322-24.

             Here,    the   SJC    could       reasonably      conclude     that     the

manifest and ticket inquiry were not testimonial.                        Neither Tran


                                         -14-
nor Tham contend that the manifest or ticket inquiry fell within

Crawford's core class of testimonial documents.                       Rather, they

focus their attacks on the documents' purpose.                  Petitioners take

issue with the documents' unknown origin and argue that the

Commonwealth failed to rule out the possibility that the manifest

and   ticket   inquiry      were   created     for   the    primary    purpose    of

establishing past events relevant to a later criminal prosecution.

They fail, however, to cite any on-point Supreme Court decisions

stating that the unknown origin of otherwise standard business

records makes those documents testimonial.                 See Hensley v. Roden,

755 F.3d 724, 732-33 (1st Cir. 2014), cert. denied, 135 S. Ct. 964

(2015) (noting that the Supreme Court has declined to "produce an

exhaustive classification of all conceivable statements . . . as

either testimonial or nontestimonial" (alteration in the original)

(quoting Davis, 547 U.S. at 822)); Nardi v. Pepe, 662 F.3d 107,

112   (1st   Cir.   2011)     (rejecting      habeas   petition    arguing      that

forensic laboratory reports were testimonial and "stress[ing] the

present uncertainty of the law").

             Contrary    to   petitioners'      contentions,      Supreme    Court

precedent suggests that the manifest and ticket inquiries were not

testimonial.        Contarino      testified    that   United    kept    both    the

manifest and ticket information in its ordinary course of business.

Contrary to Tham's argument, the act of an unknown United employee


                                       -15-
handing    these     documents   to    the    police     does   not   make    them

testimonial.   After all, business records must be handed to either

the police or the parties in order to be introduced at trial and

the Supreme Court has explicitly held that ordinarily business

records are not testimonial.            Meléndez-Díaz, 557 U.S. at 324;

see also United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002)

(holding check-in and reservation records from Korean Airlines

flight fit within business record exception and fact that "the

information was printed out at the request of the INS does not

deprive the printouts of its business-record character").

            Tham's    reliance   on    this    court's    decision    in     United

States v. Cameron, 699 F.3d 621 (1st Cir. 2012) -- a circuit court

case that post-dates the SJC's 2011 opinion -- is misplaced.                   Tham

contends that Cameron supports his argument that the act of

production can make evidence testimonial.                  In Cameron, Yahoo

created reports whenever it suspected a user's account contained

child pornography.        Id. at 628-29.         This court held that the

reports, although created in Yahoo's ordinary course of business,

were testimonial because the reports were always sent to the

National    Center     for   Missing     and     Exploited      Children,      "an

organization that is given a government grant to forward any such

reports to law enforcement."          Id. at 644.      In Cameron, it was not

Yahoo's act of turning the reports over to law enforcement that


                                      -16-
made the documents testimonial -- it was that Yahoo created the

documents for the primary purpose of turning them over.               In Tran

and Tham's case, however, there is no evidence that the manifest

and ticket inquiries were created for law enforcement.                     The

production of the documents to the police does not change their

primary purpose or make them testimonial.

            Furthermore, Tran and Tham's arguments relating to the

origin of the manifest and ticket inquiry go to authentication and

not   the   Confrontation    Clause.         Petitioners   are   correct   that

Contarino    could   not    testify     directly    about    the    documents'

authenticity or whether they were at any point altered to contain

petitioners' names; he could testify only that they bore similar

markings    to   genuine    United    manifests     and    ticket   inquiries.

Although the Supreme Court has forbidden a witness from testifying

about "another's testimonial statements," Bullcoming, 564 U.S. at

662 (emphasis added), as stated above, the manifest and ticket

inquiry were not testimonial in the first instance.                  Moreover,

even for testimonial documents, the Supreme Court has not clearly

stated which witnesses the prosecution must call in the chain of

custody.     See Meléndez-Díaz, 557 U.S. at 311 n.1 ("[W]e do not

hold, and it is not the case, that anyone whose testimony may be

relevant in establishing the chain of custody, authenticity of the

sample, or accuracy of the testing device, must appear in person


                                      -17-
as part of the prosecution's case. . . . '[G]aps in the chain [of

custody] normally go to the weight of the evidence rather than its

admissibility.'" (quoting United States v. Lott, 854 F.2d 244, 250

(7th Cir. 1988) (third alteration in the original)).5

          In light of the above, we conclude that the SJC's

decision did not contradict, nor was it an unreasonable application

of, Supreme Court precedent.

                            III. Conclusion

          Because     the   SJC   did    not   rule   "contrary   to"   or

unreasonably apply "clearly established Federal law," Linton, 812

F.3d at 122, we affirm the district court's denial of Tran and

Tham's habeas corpus petitions.

          Affirmed.




5  Because we conclude that the manifest and ticket inquiry were
not testimonial, we do not need to reach petitioners' additional
argument that the documents constituted hearsay and they had the
right to confront a witness who knew about United's identification
procedures in 1991. See United States v. Castro-Davis, 612 F.3d
53, 64 n.14 (1st Cir. 2010) (noting that "Crawford draws a
distinction between testimonial and non-testimonial hearsay and
applies only to the former category of statements" (quoting Horton
v. Allen, 370 F.3d 75, 84 (1st Cir. 2004))).


                                  -18-
