                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        April 4, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee/Cross-                 No. 06-3182 & 06-3224
          Appellant,
          v.                                          (District of K ansas)
 H ECTO R SA LIN A S-V A LEN CIANO,              (D.C. No. 05-10143-01-JTM )

          Defendant-Appellant/Cross-
          Appellee.



                             OR D ER AND JUDGM ENT *


Before M U RPH Y, M cCO NNELL, and M cKAY, Circuit Judges.


      This appeal presents a tricky evidentiary question, as yet unresolved in this

Circuit, stemming from Crawford v. Washington, 541 U.S. 36 (2004).

Unfortunately, because of inadequate briefing, we cannot render a firm and

precedential answer.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
                                           I.

      Hector Salinas-Valenciano was arrested in Sedgwick County, Kansas on

M arch 6, 2005, on domestic-battery and drug charges. County officials informed

Immigration and Customs Enforcement (ICE), which placed a detainer hold on the

Defendant the next day on the suspicion that he was an illegal alien who had

previously been deported after commission of an aggravated felony, in violation

of 8 U.S.C. § 1326(a) and (b)(2). He was convicted of the state charges on July

11, 2005, sentenced to time served, and transferred the next day to ICE custody.

      On July 26, 2005, the Defendant was indicted federally on one count of

reentry after deportation subsequent to an aggravated felony. A § 1326

indictment requires that the government prove four things, one of which is that

the defendant never applied for and received permission to reenter the country.

United States v. M artinez-M orel, 118 F.3d 710, 712-13 (10th Cir. 1997). At trial,

the government attempted to prove this element solely through the introduction of

a Certificate of Non-existence of Record (CNR). The CNR was a statement

signed by M ike Quinn, the chief of the Records Service Branch at U.S.

Citizenship and Immigration Services, stating that either M r. Quinn or one of his

employees had searched their database for a record that M r. Salinas-Valenciano

had applied for and received permission to re-enter. It stated that, “after a

diligent search was performed in these database systems, no record was found to

exist indicating that [M r. Salinas-Valenciano] obtained consent . . . for re-

                                          -2-
admission in the United States.” Appellant’s Br., App. G, at 2. The CNR listed

the information that was keyed into the data search: the file number, the subject’s

name (“HECTOR SA LINAS-VALENCIANO”), other names (none), birth date,

and country of birth. Neither M r. Quinn nor anyone else involved in the database

search or the preparation of the CNR testified.

      To obtain a § 1326 conviction, the government must also prove that the

defendant w as actually deported. M artinez-M orel, 118 F.3d at 712-13. The

government did so here by entering into evidence a warrant of deportation, which

included a signed statement by an unidentified ICE official, saying that he saw

the defendant leave the country. The government did not call that ICE official to

testify or identify him by name. M r. Salinas-V alenciano objected under Crawford

to the admission of both the CNR and the warrant of deportation.

      M r. Salinas-Valenciano was convicted by a jury. At sentencing, the

government objected that the defendant’s prior conviction for attempted sexual

battery was mischaracterized by the court as an aggravated felony rather than as a

crime of violence, resulting in an eight-level enhancement rather than a sixteen-

level enhancement. The Defendant objected that the government listed his date of

capture as July 12, 2005, rather than M arch 7, 2005, which resulted in a higher

criminal history category. The shift in criminal history raised the D efendant’s

sentencing range from 24-30 months to 27-33 months. The judge denied both

motions and sentenced the defendant to 27 months imprisonment.

                                         -3-
      M r. Salinas-V alenciano appeals the admission into evidence of the CNR

and the warrant of deportation, arguing that both violated his rights under the

Confrontation Clause as enunciated in Crawford. He also appeals the court’s

determination that he was “found in” the country on July 12 rather than M arch 7.

The G overnment cross-appeals on the sentencing enhancement issue. Because w e

reverse on the evidentiary issue, we need not address either M r. Salinas-

Valenciano’s other grounds for appeal or the government’s cross-appeal.

                                          II.

      The Confrontation Clause of the Sixth Amendment states that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

witnesses against him.” U.S. Const. amend. VI. In Crawford, the Supreme Court

held that, under the Confrontation Clause, “the Framers would not have allowed

admission of testimonial statements of a w itness who did not appear at trial unless

he was unavailable to testify, and the defendant had had a prior opportunity for

cross-examination.” 541 U.S. at 53-54.

      The Crawford Court did not fully define the meaning of “testimonial,”

noting the existence of a number of formulations that “share a common nucleus.”

Id. at 52. It pointed out that “[m]ost of the hearsay exceptions cover[] statements

that by their nature [are] not testimonial— for example, business records or

statements in furtherance of a conspiracy.” Id. at 56. This Court has since

adopted a definition of “testimonial” very similar to one cited in Crawford. In

                                          -4-
United States v. Summers, 414 F.3d 1287 (10th Cir. 2005), we held that “a

statement is testimonial if a reasonable person in the position of the declarant

would objectively foresee that his statement might be used in the investigation or

prosecution of a crime.” Id. at 1302.

      M r. Salinas-Valenciano challenges the admission both of the warrant of

deportation and of the CNR. He contends that the evidence is testimonial under

Crawford and therefore inadmissible in the absence of testimony by the declarant.

In a recent unpublished order and judgment, a panel of this Court held that both

CNRs and warrants of deportation are non-testimonial, because they qualify under

Fed. R. Evid. 803(8) and (10) as public records or as certificates of the absence of

a public record. United States v. Lara-Ibanez, 203 F. App’x 200, 203-204 (10th

Cir. 2006) (unpublished opinion). A s an unpublished order and judgment, Lara-

Ibanez is non-binding, and can guide our decision only insofar as it is persuasive.

10th Cir. R. 32.1(A).

      W e believe that the two documents raise different issues under Crawford,

and therefore analyze them separately.

      A. The W arrant of Deportation

      W e agree with the government— and with Lara-Ibanez— that warrants of

deportation are not testimonial. All circuits to have addressed the issue have held

that admissions of warrants of deportation do not violate Crawford. United States

v. Torres-Villalobos, 477 F.3d 978 (8th Cir. 2007); United States v. Garcia, 452

                                         -5-
F.3d 36, 42 (1st Cir. 2006); United States v. Valdez-M altos, 443 F.3d 910, 911

(5th Cir. 2006) (per curiam); United States v. Cantellano, 430 F.3d 1142, 1145

(11th Cir. 2005); United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th

Cir. 2005).

      The key question under Crawford is whether the document sought to be

introduced was prepared for the purpose of litigation, or whether it was prepared

for regulatory, business, or other purposes apart from the possibility of its use as

evidence in a legal proceeding. See Summers, 414 F.3d at 1302. W e believe that

warrants of deportation are non-testimonial under this definition. A warrant of

deportation is a public record signed by a public official attesting to the fact that

the individual in question actually left the country. Its primary purpose is to

enable immigration authorities to keep track of who has been deported and when.

It would be useful, for example, if the deported individual later sought lawful

admission to the United States. As the Eighth Circuit recently noted, “[w]arrants

of deportation are produced under circumstances objectively indicating that their

primary purpose is to maintain records concerning the movements of aliens and to

ensure compliance with orders of deportation, not to prove facts for use in future

criminal prosecutions.” Torres-Villalobos, 2007 W L 528195, at *4. The warrant

of deportation introduced into evidence in this case was not prepared in

contem plation of litigation, and its admission therefore does not violate the Sixth

Amendment.

                                          -6-
      B. The Certificate of Non-Existence of Record

      Three circuits have held that CNRs do not violate Crawford. United States

v. Urqhart, 469 F.3d 745, 749 (8th Cir. 2006); United States v. Cervantes-Flores,

421 F.3d 825, 830-34 (9th Cir. 2005); United States v. Rueda-Rivera, 396 F.3d

678, 680 (5th Cir. 2005) (per curiam). These opinions rely heavily on the

language in Crawford that refers to business records. See, e.g., Urqhart, 469 F.3d

at 748-49 (“Crawford seemingly excluded business records from the classification

of testimonial statements. . . . Thus, a CNR . . . is similar enough to a business

record that it is nontestimonial under Crawford and presents no Confrontation

Clause concerns.”). This is not entirely persuasive.

      W e can agree that the underlying Citizenship and Immigration Services

database containing records of requests for permission to reenter is an official

record and is not testimonial. The database is created in connection with ongoing

regulatory functions independent of prosecution. Appellant’s argument that he is

entitled under Crawford to cross-examine a witness regarding the accuracy and

reliability of the database is therefore mistaken.

      But the CNR itself is a different matter. Unlike warrants of deportation,

CNRs are prepared specifically in contemplation of litigation. Indeed, the sole

purpose of a CNR is to provide the proof necessary in a prosecution under 8

U.S.C. § 1326 that the defendant was not given permission to reenter the country.

                                          -7-
It has no other use. The CNR in this case was signed on August 9, 2005, thirteen

days after the defendant was indicted. It was produced to be used as part of the

government’s case in chief.

      The declarant with respect to the CNR is the person who actually

performed the data search and who discovered no record pertaining to M r.

Salinas-Valenciano. 1 If the declarant testified at trial, he or she could be cross-

examined regarding when and how the data search was conducted. It is far from

clear how this could be of practical assistance to the defense in most cases. To be

sure, if the defendant could establish that the query to the database was

inaccurate, for example if the subject’s name w ere misspelled or other identifying

information inaccurately keyed in, this would impeach the validity of the CNR.

But the CNR itself already lists precisely the information used in the data search:

the subject’s name, number, date of birth, and country of origin. Any errors

would be evident from the face of the document. It is hard to see how cross-

examination would add much of substance.

      Under these circumstances, we are not certain that the evidence falls within

the ambit of the Confrontation Clause, or that any violation could be other than

harmless. In an analogous context, the Seventh Circuit held that it did not violate

the Confrontation Clause, as interpreted in Crawford, to admit a certificate from

      1
        The C NR is signed by M ike Quinn, but he states in the text of the CNR
that “I, or an agency employee acting at my direction, performed a search for
records relating to the subject identified below.”

                                          -8-
the custodian of records at a hospital attesting that attached documents

establishing the presence of methamphetamine in the defendant’s system were, in

fact, hospital records. United States v. Ellis, 460 F.3d 920, 923-27 (7th Cir.

2006). The certificate “[did] not purport to convey information about [the

defendant], but merely establish[ed] the existence of the procedures necessary to

create a business record.” Id. Although recognizing that the certificate was made

in anticipation of litigation, the court held that this fact was not controlling. Id. at

927. “Given the records themselves do not fall within the constitutional

guarantee provided by the Confrontation Clause,” the court reasoned, “it would be

odd to hold that the foundational evidence authenticating the documents do.” Id.

The court thus found admission of the certificate “too far removed from the

‘principal evil at which the Confrontation Clause was directed.’” Id., quoting

Crawford, 541 U.S. at 50.

          The same argument might (almost) apply to a CNR. The principal

difference is that CNRs are created by agents of the government, while the

certificate in Ellis was created by an employee of the hospital. The concerns of

the Confrontation Clause might arguably be more pertinent in the case of

evidence created by a government agent. Justice Scalia, writing for the Court,

states:

          Involvement of government officers in the production of testimony with an
          eye toward trial presents unique potential for prosecutorial abuse— a fact
          borne out time and again throughout a history with which the Framers w ere

                                           -9-
      keenly familiar. This consideration does not evaporate when testimony
      happens to fall within some broad, modern hearsay exception, even if that
      exception might be justifiable in other circumstances.

Crawford, 541 U.S. at 56 n.7. W hether this distinction is sufficient to require a

different result is a nice question, even assuming that this Court would follow the

reasoning of Ellis.

      The government, however, did not make any of these arguments. The

government’s sole argument consisted of a citation to the panel’s unpublished

decision in Lara-Ibanez, and to urge the Court to adopt that analysis here. Lara-

Ibanez devotes a single paragraph to the question of CNRs, saying simply that “A

Certificate of No Existence of Record (CNR) has also been held to come within

the exception to the hearsay rule as set forth in Fed. R. Evid. 803(10).” 203 F.

App’x at 204. As noted in Crawford, however, the mere fact that a statement

“fall[s] within some broad, modern hearsay exception” is not sufficient to render

it nontestimonial. Crawford, 541 U.S. at 56 n.7. A separate analysis is needed.

      Lara-Ibanez seemingly rests on the premise that any statement that fits

within certain hearsay exceptions is, by its nature, nontestimonial. The opinion

cites to Chief Justice Rehnquist’s concurrence in Crawford, which states, “the

Court’s analysis of ‘testimony’ excludes at least some hearsay exceptions, such as

business records and official records.” Crawford, 541 U.S. at 76 (Rehnquist, C.J.,

concurring). But the CNR is not itself an official record within the meaning of

Fed. R. Evid. 803(8); it is a document prepared for purposes of prosecution,

                                         -10-
reporting the absence of a public record. M oreover, the premise of Crawford is

that we are constitutionally required to do a second Confrontation Clause analysis

even if we have determined that a piece of evidence fits into a hearsay exception.

      As noted above, the application of the Confrontation Clause to purely

ministerial documents whose only purpose is to establish the foundation for

admission of nontestimonial evidence is unclear, and even if the admission of

such evidence is error, it may be harmless by its nature. But we are reluctant to

decide a question of first impression, particularly where it recurs so frequently, in

the absence of full adversarial presentation. Because the government puts

forward no argument – other than reliance on Lara-Ibanez – as to why the

statement in question is nontestimonial and makes no argument that the error was

harmless, we find for the defendant in this case.

      The CNR was the government’s sole evidence to prove that M r. Salinas-

Valenciano never successfully applied for re-entry. W ithout that evidence, the

proof against the defendant is insufficient to sustain the charges.

                                         III.

       Finally, we address how the district court should proceed should the

government attempt to relitigate the charges. W here a conviction is overturned

because a piece of evidence necessary to obtain the conviction was erroneously

admitted at trial, Double Jeopardy does not bar retrial. Lockhart v. Nelson, 488

U.S. 33, 39-42 (1988); United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir.

                                         -11-
1995). Had the court below ruled this evidence violative of Crawford, “the trial

judge would presumably have allowed the prosecutor an opportunity to offer

[additional] evidence.” Lockhart, 488 U.S. at 42. Permitting retrial “thus merely

recreates the situation that would have been obtained if the trial court had

excluded the evidence of the conviction.” Id. Thus, the government is free to

present new evidence on remand, including, if it wishes, testimony by a declarant

who could provide the foundation for admission of the CNR.

      However, the government is barred from relitigating the issue of the

admissibility of the CNR, absent a testimonial foundation. Although in future

litigation the government may be able to square the admission of a CNR with the

requirements of Crawford, it failed to do so in this case, and may not do so on

remand. See United States v. Husband, 312 F.3d 247, 250-51 (7th Cir. 2002)

(discussing the effect of waiver and conclusive appellate rulings on remand).

      W e REV ER SE the defendant’s conviction and REM AND to district court

for further proceedings. The mandate shall issue forthwith.



                                                     Entered for the Court,

                                                     M ichael W . M cConnell
                                                     Circuit Judge




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