08-5589-cr
United States v. Madarikan
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED A FTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING A SUM M ARY
O RDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY O RDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, TH E CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 16 th day of December, two thousand nine.

PRESENT:         RALPH K. WINTER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                          Circuit Judges.
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UNITED STATES OF AMERICA,

                                         Appellee,
                             v.                                               No. 08-5589-cr

MERCY MADARIKAN, also known as Mercy Gage,

                                          Defendant-Appellant.
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APPEARING FOR APPELLANT:                          LEN H. KAMDANG, Federal Defenders of New
                                                  York, Inc., New York, New York.

APPEARING FOR APPELLEE:                           WILLIAM E. SCHAEFFER, Assistant United
                                                  States Attorney (Jo Ann M. Navickas, Assistant
                                                  United States Attorney, on the brief), for Benton

                                                     1
                                            J. Campbell, United States Attorney for the
                                            Eastern District of New York, Brooklyn, New
                                            York.

       Appeal from the United States District Court for the Eastern District of New York

(John Gleeson, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the district court’s judgment of conviction, entered on November 12, 2008,

is AFFIRMED.

       Defendant Mercy Madarikan, a citizen of the United Kingdom, appeals from a

judgment of conviction, entered after a jury trial, for attempted illegal reentry in violation of

8 U.S.C. § 1326(a). Sentenced principally to 8 months’ imprisonment, Madarikan here

argues that the district court erred in (1) precluding evidence that she was previously allowed

to enter the United States in July 2005; and (2) admitting a Certificate of Nonexistence of

Record (“CNR”) in violation of her Sixth Amendment right of confrontation.1 We review

a district court’s evidentiary rulings for abuse of discretion, see Meloff v. N.Y. Life Ins. Co.,

240 F.3d 138, 148 (2d Cir. 2001), and “[a]lleged violations of the Confrontation Clause

. . . de novo, subject to harmless error analysis,” United States v. Vitale, 459 F.3d 190, 195

(2d Cir. 2006). In doing so, we assume the parties’ familiarity with the facts and the record

of prior proceedings, which we reference only as necessary to explain our decision to affirm.



       1
        A CNR is a document created for purposes of litigation in which a government
employee certifies that no record exists of a defendant alien having applied for, or having
been granted, permission to reenter the United States.

                                               2
       1.     Madarikan’s July 2005 Entry

       Madarikan submits that the district court abused its discretion when it precluded her

from introducing evidence that, in July 2005, eleven years after her conviction for importing

heroin into the United States in violation of 21 U.S.C. § 952(a) and eight years after her

exclusion and deportation, federal officials at the Dallas Fort Worth International Airport

effectively granted her permission to reenter the United States when they stamped her

passport and allowed her to proceed through customs. She asserts that evidence of this entry

was admissible to impeach the CNR’s representation that after a diligent search no record

was found indicating that Madarikan had obtained consent from the Attorney General or the

Secretary of the Department of Homeland Security for re-admission into the United States.

We are not persuaded.

       Title 8 U.S.C. § 1326 requires an alien who has been excluded or deported from the

United States to obtain the “express[] consent[]” of the Attorney General or the Secretary of

DHS “prior to his reembarkation at a place outside the United States,” unless he demonstrates

his exemption from such requirement.2 8 U.S.C. § 1326(a) (emphases added). In construing

this provision, we have observed that “[t]here is no statute or regulation that expressly

authorizes a border guard to grant the required express consent of the Attorney General, and

even if there was an implicit or constructive delegation of such authority, no express consent


       2
         Although § 1326 specifically states that an alien must obtain the consent of the
Attorney General, as of 2003, the Homeland Security Act of 2002 requires that consent be
obtained from the Secretary of DHS. See Pub. L. No. 107-296, 116 Stat. 2135 (2002)
(codified at 6 U.S.C. § 202(4)).

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to reapplication for admission could be found where a deported alien reenters without

informing [government] officials of his prior deportations.” United States v. Martus, 138

F.3d 95, 97 (2d Cir. 1998) (citation omitted). Madarikan cites no authority undermining the

continued viability of Martus, nor does she contend that she informed DHS officials in Dallas

that she was previously deported. The district court’s exclusion of evidence of her July 2005

entry into the United States was therefore not an abuse of discretion.

       2.      Confrontation Clause

       Madarikan argues that, because she had no opportunity to cross-examine the

government employee who generated the CNR, admission of that document into evidence

was a violation of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36

(2004). In light of the Supreme Court’s recent holding in Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009),3 the government concedes the existence of a Confrontation Clause

violation but maintains that the error was harmless. We agree.

       Where evidence has been admitted in violation of the Confrontation Clause, we will

affirm a conviction only if we are persuaded beyond a reasonable doubt that the challenged

evidence “did not contribute to the verdict obtained.” United States v. McClain, 377 F.3d




       3
         In Melendez-Diaz, the Court concluded that, in the absence of live testimony, the
admission of “certificates of analysis” from state forensic analysts ran afoul of the
Confrontation Clause. 129 S. Ct. at 2531, 2540, 2542. In reaching this conclusion, it likened
the certificates – which were prepared specifically for purposes of litigation – to
“certificate[s] attesting to the fact that [a] clerk had searched for a particular relevant record
and failed to find it.” Id. at 2539.

                                                4
219, 222 (2d Cir. 2004) (internal quotation marks omitted). In making this determination,

we take into account: (1) “the strength of the government’s case”; (2) “the degree to which

the statement was material to a critical issue”; (3) “the extent to which the statement was

cumulative”; and (4) “the degree to which the government emphasized the erroneously

admitted evidence in its presentation of the case.” United States v. Reifler, 446 F.3d 65, 87

(2d Cir. 2006); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Although no

factor is dispositive, “[t]he strength of the prosecution’s case is probably the single most

critical factor.” United States v. Reifler, 446 F.3d at 87 (alteration in original) (internal

quotation marks omitted).

       To sustain a conviction for attempted illegal reentry, the government was required to

prove that Madarikan (1) is an alien (2) who was deported (3) and thereafter attempted to

reenter the United States (4) without the requisite permission to do so. See 8 U.S.C. § 1326.

Madarikan does not dispute that the evidence presented by the government at trial was

sufficient to satisfy the first three elements. The only disputed issue is thus whether there

was any evidence other than the CNR sufficient to establish lack of permission.

       On cross-examination, Madarikan conceded that at no time after her deportation did

she write any immigration official to request permission to reenter the United States. See

Trial. Tr. at 122. In its summation, the government therefore sought to establish lack of

permission not only by reference to the CNR, but also by reference to Madarikan’s own

testimony. While the defense summation attempted to cast doubt on the reliability of the



                                             5
CNR, it offered no response to Madarikan’s acknowledgment that she never requested –

much less obtained – the express approval under § 1326 required prior to commencing travel

to the United States. Even assuming the CNR had not been admitted into evidence, then,

Madarikan’s concession provided an ample basis for conviction. See generally United States

v. Martus, 138 F.3d at 97 (noting that “a good faith or mistake defense does not exist under

Section 1326” (internal quotation marks omitted)). Accordingly, although Madarikan’s

rights under the Sixth Amendment’s Confrontation Clause were violated by the admission

of the CNR, the error was harmless beyond a reasonable doubt.

       3.     Conclusion

       For the foregoing reasons, the judgment of conviction is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


                                   By:




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