                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-1242
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Nebraska.
Peter Charles Urqhart,                    *
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: September 26, 2006
                                  Filed: November 22, 2006
                                   ___________

Before LOKEN, Chief Judge, BEAM, and GRUENDER, Circuit Judges.
                              ___________

BEAM, Circuit Judge,

        Peter Charles Urqhart appeals his conviction for illegal reentry into the United
States after prior deportation. Urqhart claims that admission at trial of a Certificate
of Nonexistence of Record (CNR) violated his Sixth Amendment right to
confrontation in light of Crawford v. Washington, 541 U.S. 36 (2004), a question of
first impression in this circuit. He also claims that the district court1 erred in denying
his motion for mistrial. Because a CNR from a defendant's "alien-file" ("A-file")



      1
        The Honorable Laurie Smith Camp, United States District Court Judge for the
District of Nebraska.
constitutes nontestimonial evidence, and because the district court did not abuse its
discretion in denying the motion for mistrial, we affirm.

I.    BACKGROUND

       In May of 2005, an officer of the Nebraska State Patrol found Urqhart walking
alongside Interstate 80 near Sidney, Nebraska. After speaking with him, and forming
the belief that Urqhart was not a citizen of the United States, the patrolman contacted
Special Agent John Ferreira of the Bureau of Immigration and Customs Enforcement
(BICE). After Urqhart's detention, Ferreira spoke with him and learned that Urqhart,
admittedly from Canada, was a deportee from the United States. After obtaining
BICE's "A-file" for Urqhart, Ferreira confirmed that Urqhart's fingerprints matched
the fingerprints in the "A-file." Urqhart was indicted for reentering the United States
without permission after deportation, in violation of 8 U.S.C. § 1326(a).

      During voir dire at Urqhart's trial, the district court judge stated that "[t]he
defendant in this case is from Canada." After the judge's voir dire, defense counsel
requested a motion for mistrial based on the announcement. The defense argued that
the court's statement established alienage, a required element in an 8 U.S.C. § 1326(a)
charge, alleviating the prosecution's burden of proving all elements beyond a
reasonable doubt. Rather than declaring a mistrial and calling a new jury, the court
gave the following curative instruction:

      Before counsel begins voir dire in this matter, I want to mention a couple
      of things to you. One is that nothing I say during voir dire is evidence
      in this case, nor is anything that I say during voir dire an instruction on
      the law. . . . Earlier I made a reference to Canada and we discussed
      Canada and whether or not anyone had attitudes or opinions about
      Canada that might affect their judgment in this case and cause them to
      favor one side over the other. I anticipate that there will be some
      evidence introduced in the case about the defendant having an
      association with the country of Canada. That is for you to decide,


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      whether the defendant has any association with the country of Canada
      and what that association may or may not be.

       During trial, Ferreira testified that an individual's "A-file" contains hard copies
of all relevant documents maintained by BICE. Through Ferreira, the prosecution
introduced the "A-file" and its partial contents. This included, among other
documents, a "Final Administrative Removal Order" and a "Warrant of
Removal/Deportation" for Urqhart. Finally, Ferreira testified the "A-file" did not
contain a request for permission to reenter, known as a Form 212. In addition to
personally searching the file, Ferreira contacted the BICE records branch "to have
them go through all the databases to ensure that no application or claim for [a Form
212] was currently in our computer databases." In response to Ferreira's inquiry, Mike
Quinn, Acting Chief in the Records Services Branch, issued a CNR stating that "after
a diligent search" of three databases, "no record was found to exist indicating that
[Urqhart] obtained consent . . . for re-admission in the United States." The district
court, consistent with its pre-trial denial of a motion in limine to exclude the CNR in
light of Crawford, received the document into evidence. Quinn was not present at the
trial.

      Based on this evidence, and expert testimony regarding the fingerprints, a jury
convicted Urqhart of reentering the United States without permission after
deportation. He now appeals.

II.   DISCUSSION

       "We review de novo the denial of an objection to the admission of evidence
based on the Confrontation Clause of the Sixth Amendment." United States v.
Clemmons, 461 F.3d 1057, 1060 (8th Cir. 2006). We review a denial of a motion for
mistrial for abuse of discretion. E.g., United States v. Katz, 445 F.3d 1023, 1034 (8th
Cir.), cert. denied, 127 S. Ct. 421 (2006).


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      A.     Admission of the CNR and the Confrontation Clause

       Urqhart contends that admitting Quinn's written CNR, without a showing of
unavailability and a prior opportunity for cross-examination, violated the Sixth
Amendment's Confrontation Clause. As the district court noted, we held in United
States v. Hale, 978 F.2d 1016 (8th Cir. 1992), that admission of a CNR does not
violate the constitutional right of confrontation. Id. at 1021. We based this rationale
on the fact that the record is admissible under Federal Rule of Evidence 803(10) as an
exception to the hearsay rule. Id.

       The Supreme Court in Crawford, however, noted that laws of evidence do not
define the parameters of the Confrontation Clause. 541 U.S. at 51. Rather, "[w]here
testimonial evidence is at issue . . . the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-examination." Id. at 68.
The Court left "for another day any effort to spell out a comprehensive definition of
'testimonial,'" id., instead offering examples based in history. See id. at 51-52
(examples of testimonial statements); 56 (historical exceptions). In delineating these
categories, the Court explained that "there is scant evidence that [the historical]
exceptions were invoked to admit testimonial statements against the accused in a
criminal case." Id. at 56. Instead, "[m]ost of the hearsay exceptions covered
statements that by their nature were not testimonial–for example, business records,"
among others. Id. See also id. at 76 (Rehnquist, C.J., concurring) (noting the majority
properly excluded business records from testimonial statements).

      We have not reviewed our holding in Hale since Crawford to determine whether
a CNR is "testimonial," thus requiring the showing of unavailability and a prior
opportunity for cross-examination. Upon considering the question, all other circuits
have held that a CNR is nontestimonial in nature. United States v. Cervantes-Flores,
421 F.3d 825 (9th Cir. 2005), cert. denied, 126 S. Ct. 1911 (2006); United States v.



                                         -4-
Mendoza-Orellana, 133 F. App'x 68 (4th Cir. 2005) (unpublished); United States v.
Rueda-Rivera, 396 F.3d 678 (5th Cir. 2005). We agree.

       We find the rationale of Cervantes-Flores persuasive as it pertains to the
nontestimonial nature of CNRs. There, the United States charged Cervantes with
reentry without permission after deportation. 421 F.3d at 828. As here, the district
court admitted a CNR to prove Cervantes lacked permission to reenter. Id. at 830.

       The Ninth Circuit in Cervantes-Flores looked at the nature and context of a
CNR to determine whether it was testimonial. Id. at 832-833. Cervantes-Flores
states, as we have, that Crawford seemingly excluded business records from the
classification of testimonial statements. Id. at 832. The court noted that the CNR,
certifying that a Form 212 is not present, "certified that a record that the [BICE] would
keep in the course of its regularly conducted activities did not exist in the agency's
files." Id. Even if a Form 212 existed, BICE would certify that fact and both the
certification and the Form would be admissible as official records of the BICE. Id.
Thus, a CNR, certifying that the Form 212 does not exist, is similar enough to a
business record that it is nontestimonial under Crawford and presents no
Confrontation Clause concerns.

       Urqhart argues, as did Cervantes, id., that the government prepared this
document for use against him at his criminal trial. Crawford cited this scenario as an
area of particular concern. 541 U.S. at 56 n.7 ("Involvement of government officers
in the production of testimony with an eye toward trial presents unique potential for
prosecutorial abuse."). Yet as the discussion above explains, while Quinn created the
CNR at the request of Special Agent Ferreira, the underlying subject matter–the
absence of a Form 212–existed when the Nebraska State Patrol found Urqhart on
Interstate 80.




                                          -5-
       Thus, likening the CNR to a business record, we follow the lead of our sister
circuits and hold that a CNR is nontestimonial evidence under Crawford. The district
court properly received it into evidence.

       B.     Denial of Motion for Mistrial

     Urqhart further claims that the trial judge's statement that Urqhart was from
Canada required a mistrial. We disagree.

       We give the district court "broad discretion to grant or deny a motion for
mistrial because it is in a far better position to weigh the effect" of any possible
prejudice. United States v. Davidson, 122 F.3d 531, 538 (8th Cir. 1997). Further, the
district court is in the best position to craft a remedy, given that "less drastic measures
[than mistrial] such as a cautionary instruction are generally sufficient to alleviate
prejudice" stemming from accidental comments. Id. Finally, where there is
"substantial evidence of appellant's guilt, any error in the failure to declare a mistrial
was harmless." United States v. Urick, 431 F.3d 300, 305 (8th Cir. 2005).

       We hold that the district court did not abuse its discretion in denying the motion
for mistrial. The court gave an extensive curative instruction immediately after
Urqhart's counsel brought the matter to the court's attention. We believe the
instruction cured any harm. And, even if it did not, we find that there is substantial
evidence supporting Urqhart's guilt, making any possible error harmless.

III.   CONCLUSION

       Because a CNR is nontestimonial evidence under Crawford, and because the
district court did not abuse its discretion in denying the motion for mistrial, we affirm
the district court in all respects.
                          ______________________________

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