                            In the

United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-4091

U NITED S TATES OF A MERICA,
                                               Plaintiff-Appellee,
                                v.

F RANKLIN B URGOS, also known as
F RANKLIN B URGOS-M ARTINEZ,
also known as A LFREDO DE JESUS,
also known as R ICHARD L EB RON,

                                           Defendant-Appellant.
                        ____________
         A ppeal from the U nited States District Court
              for the Eastern District of W isconsin.
         N o. 05 CR 241— Charles N . Clevert, Jr., Judge.
                        ____________

   A RGUED S EPTEMBER 26, 2007—D ECIDED A UGUST 22, 2008
                        ____________



 Before M ANION, E VANS, and S YKES, Circuit Judges.
  S YKES, Circuit Judge. This is an appeal from a convic-
tion for illegal reentry into the United States following
deportation. See 8 U.S.C. § 1326. It presents the question,
under the Sixth Amendment’s Confrontation Clause,
2                                               No. 06-4091

whether the government may use at trial the contents of
the defendant’s alien-registration file (his “A-file”)—
specifically, a warrant of deportation and a “certificate of
nonexistence of record”—to prove its case. We conclude
that these A-file records are nontestimonial business
records not subject to the requirements of the Confronta-
tion Clause under Crawford v. Washington, 541 U.S. 36
(2004), and Davis v. Washington, 547 U.S. 813 (2006).
  We are also asked to review the district court’s denial of
defendant Franklin Burgos’s request for new counsel. That
request came on the morning of trial, and Burgos had
already received one substitution of appointed counsel.
The district judge patiently questioned Burgos about the
matter, noted the prior substitution of counsel and the
court’s readiness to proceed, and permitted a lengthy
recess for counsel and client to confer. The judge then
carefully explained Burgos’s plea and trial options, and
Burgos eventually waived the jury and proceeded to a
court trial, represented by his then-present counsel.
Whether this was an implicit withdrawal of the request
for new counsel or an implicit denial of it, we see no
abuse of discretion by the court and affirm Burgos’s
conviction.


                      I. Background
  Milwaukee police arrested Franklin Burgos in 2005 and
reported him to federal authorities when they suspected
that his presence in this country, as a previously deported
alien, was unlawful. Burgos is a native and citizen of the
Dominican Republic who had once resided lawfully in
No. 06-4091                                             3

this country as a resident alien. But he acquired two
criminal convictions—one for burglary in New York and
another for possession of cocaine with intent to deliver
in New Jersey—and thus relinquished the privilege of
remaining here. Burgos was deported in 1995 after serving
his sentences for these crimes, and when he attempted to
reenter the country illegally through California, he was
deported again in 1998. At some point thereafter he
returned. His arrest in Milwaukee in 2005 was the
genesis of this prosecution.
   Burgos was charged in a one-count indictment with
illegal reentry as an aggravated felon in violation of
8 U.S.C. § 1326(a) and (b). His first appointed counsel
moved to withdraw, citing communication problems with
his client. Judge Clevert granted this motion. On the
morning of trial, Burgos’s second appointed counsel
announced that Burgos wanted a new lawyer. The
judge asked Burgos and his counsel to explain the reason
for the request, and then advised Burgos that his present
counsel “is your second attorney in this case, and we
are prepared to go forward with the jury trial today.”
The judge said he would ask an attorney on the staff of
the Federal Defender to confer with Burgos and his
counsel about “the matters that seem to be troubling you
at this time.” A recess was taken for that purpose, and
when court reconvened an hour and a half later, Burgos’s
attorney advised the court that Burgos would prefer new
counsel and an adjournment, but if the court decided that
the trial would proceed that day, “Mr. Burgos is accepting
that and wants me here as counsel.” Judge Clevert then
questioned Burgos and at length explained his options to
4                                                 No. 06-4091

plead guilty or proceed with a jury or court trial. After
a brief conference between Burgos and his counsel,
Burgos opted for a court trial and entered a jury waiver.
  To convict, the government was required to prove
three facts: that Burgos was an alien; that he was deported;
and that he reentered the country without permission
from the Attorney General. The latter two requirements
were proved during the court trial by two documents
from Burgos’s A-file: a warrant of deportation, which
attested to the fact of his prior deportations, and a “certifi-
cate of nonexistence of record” (a “CNR”), which certified
that Burgos’s file contained no record that the Attorney
General had granted permission for Burgos to return to
this country. Burgos stipulated to his prior convictions and
also that he did not have consent from the Attorney
General to reenter the United States. He objected to
admission of the two documents from his A-file, but in
light of his stipulation that he did not have consent to
reenter, later agreed to the admission of the CNR. The
district court found Burgos guilty and imposed a below-
guidelines sentence of 57 months.


                       II. Discussion
A. Confrontation Clause Challenge to Admission of
   A-file Contents
  On appeal Burgos renews his challenge to the admission
of the warrant of deportation and CNR from his A-file.1 We


1
    We note, however, that Burgos apparently waived the
                                                 (continued...)
No. 06-4091                                              5

review evidentiary rulings implicating a defendant’s
Sixth Amendment right to confrontation de novo. United
States v. Ellis, 460 F.3d 920, 923 (7th Cir. 2006).
  The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” As the Su-
preme Court explained in Crawford, the Confrontation
Clause bars “admission of testimonial statements of a
witness who did not appear at trial unless he was unavail-
able to testify, and the defendant had had a prior oppor-
tunity for cross-examination.” 541 U.S. at 53-54. The
critical inquiry is whether the statements in question are
“testimonial”—because, as the Court held, it is only that
type of statement that makes a declarant a “witness” under
the Confrontation Clause. Id. at 51. “It is the testimonial
character of the statement that separates it from other
hearsay that, while subject to traditional limitations
upon hearsay evidence, is not subject to the Confronta-
tion Clause.” Davis, 547 U.S. at 821.
  Crawford did not attempt to provide a comprehensive
definition of “testimonial statements,” relying instead on
the Framers’ conception of the right to confront one’s
accusers that existed at common law and on their funda-


1
    (...continued)
argument regarding the admissibility of the CNR. Although
he initially challenged the admission of the warrant of
deportation and the CNR, he abandoned his challenge to
the admission of the CNR after stipulating that he did
not have consent to reenter the United States.
6                                               No. 06-4091

mental concern with the civil law’s practice of ex parte
examinations. Crawford, 541 U.S. at 51-52. The Court in
Crawford held that “[w]here testimonial evidence is at
issue . . . the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity
for cross-examination,” explaining that the term “testimo-
nial” applies “at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former
trial; and to police interrogations.” Id. at 68. The Court
noted, however, that “[m]ost of the hearsay exceptions
covered statements that by their nature were not testimo-
nial—for example, business records or statements in
furtherance of a conspiracy,” id. at 56; these are not
subject to the requirements of the Confrontation Clause
but only to the evidentiary rules governing the ad-
mission of hearsay.
  The Court clarified the definition of “testimonial” in
Davis. There, the Court considered two cases, one involv-
ing a victim’s statements to a 911 operator reporting an
assault and identifying her former boyfriend as her assail-
ant, and the other involving a victim’s statements to the
police after a domestic disturbance describing her hus-
band’s assaultive conduct during an argument. Davis, 547
U.S. at 817-21. The Court held that the statements made
to the 911 operator during the ongoing emergency were
nontestimonial, while the statements made to the police
after the emergency had ceased were testimonial. Id. at 827-
32. Without attempting to classify “all conceivable state-
ments—or even all conceivable statements in response to
police interrogation,” the Court drew the following
distinction: statements to police are nontestimonial “when
No. 06-4091                                                 7

made in the course of police interrogation under circum-
stances objectively indicating that the primary purpose . . .
is to enable police assistance to meet an ongoing emer-
gency”; they are testimonial “when the circumstances
objectively indicate that there is no such ongoing emer-
gency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to
later criminal prosecution.” Id. at 822.
  In a different context we have noted Crawford’s reference
to business records as an example of hearsay statements
that are “by their nature” nontestimonial and therefore
not subject to the requirements of the Confrontation
Clause. See Ellis, 460 F.3d at 924. Ellis concerned the
admissibility of hospital laboratory records recording the
results of blood and urine tests. Id. at 922. Ellis analogized
to a line of case law from other circuits holding—also post-
Crawford—that an alien’s CNR is a nontestimonial busi-
ness record.2 Id. at 925-26.


2
  We have also suggested, in the context of crime laboratory
reports, that raw data from lab instruments are
nontestimonial under Crawford and Davis, while the interpre-
tation of those data could be testimonial. United States v.
Moon, 512 F.3d 359, 361-62 (7th Cir. 2008) (noting the Con-
frontation Clause issue but affirming the admission of the
lab report when it was received under Rule 703 of the
Federal Rules of Evidence through the testimony of an expert
who did not conduct the original lab tests). We note that
the Supreme Court will soon address the question of the
testimonial character of laboratory reports used in criminal
                                                (continued...)
8                                                No. 06-4091

  The consensus on this point has only grown stronger
since our decision in Ellis. The reported cases from the
other circuits that have considered the question are
unanimous in holding that an alien’s warrant of deporta-
tion and CNR are nontestimonial business records not
subject to the requirements of the Confrontation Clause
under Crawford. See United States v. Torres-Villalobos, 477
F.3d 978, 982-84 (8th Cir. 2007) (warrant of deportation);
United States v. García, 452 F.3d 36, 41-42 (1st Cir. 2006)
(same); United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th
Cir. 2006) (same); United States v. Cantellano, 430 F.3d 1142,
1144-46 (11th Cir. 2005) (same); United States v. Bahena-
Cardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (same).
And see United States v. Urqhart, 469 F.3d 745, 748-49 (8th
Cir. 2006) (CNR); United States v. Cervantes-Flores, 421 F.3d
825, 830-34 (9th Cir. 2005) (same); United States v. Rueda-
Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (same).
  We now conclude, in accord with this consensus, that an
alien’s warrant of deportation and CNR are nontestimonial
business records not subject to the requirements of the
Confrontation Clause under Crawford and Davis. These
documents have many attributes in common with
business records. A warrant of deportation records the
movement of a deported alien; the signing witness



2
    (...continued)
prosecutions. It recently issued a writ of certiorari to con-
sider whether a forensic analyst’s laboratory report is
testimonial under Crawford. Melendez-Diaz v. Massachusetts,
128 S. Ct. 1647 (2008).
No. 06-4091                                                   9

attests to the alien’s departure from the country. The
warrant’s primary purpose is to memorialize the deporta-
tion, not to prove facts in a potential future criminal
prosecution.
   Similarly, a CNR certifies that a government official
searched the database of the Department of Homeland
Security and failed to find any record permitting a de-
portee’s return to this country. Although prepared in
anticipation of trial, a CNR simply memorializes the
contents of the Department database, maintained in the
ordinary course of business—or, more particularly, the
absence of a certain sort of record in that database. This, we
noted in Ellis, was “too far removed from the examples
of testimonial evidence provided by Crawford.” 460 F.3d
at 926. In other words, because the database underlying
the CNR is not maintained for the primary purpose of
proving facts in criminal prosecutions, the CNR itself,
attesting to the absence of a record within that database,
is a nontestimonial business record.3


3
  Burgos cites an unpublished decision of the Tenth Circuit,
United States v. Salinas-Valenciano, 220 F. App’x 879 (10th Cir.
2007), but that decision does not deserve much weight.
Although the court held that a CNR was testimonial, it did
so by noting its reluctance to resolve the issue in the gov-
ernment’s favor when the government offered no substan-
tive argument to the contrary. In addition, the Tenth Circuit,
in another unpublished decision, recently held that it was
not plain error to admit a CNR over a Confrontation Clause
challenge. United States v. Provencio-Sandoval, 272 F. App’x
                                                  (continued...)
10                                                 No. 06-4091

B. Denial of Substitute Counsel
  Burgos also contends the district court improperly
denied his request for new appointed counsel. Before
proceeding, we note that it is far from clear whether the
district court actually denied this request or Burgos
withdrew it. Judge Clevert discussed the matter at length
with Burgos and his attorney and then called a recess for
the two to talk it over in the presence of a lawyer from the
Federal Defender’s office. After this conference Burgos’s
counsel told the court that although Burgos would prefer
to have new counsel appointed, if the court were
inclined to proceed with the trial, Burgos “is accepting
that and wants me here as counsel.”
  Regardless, the district court has substantial discretion
on requests for substitute appointed counsel, and we
review the court’s decision only for an abuse of that
discretion. United States v. Zillges, 978 F.2d 369, 371 (7th
Cir. 1992). Three factors are relevant to this inquiry: (1)
the timeliness of the motion; (2) the adequacy of the
court’s inquiry into the motion; and (3) the ability of the
defendant and his counsel to communicate and to formu-
late a defense, despite the alleged conflict. Id. at 372.
We will reverse only if we find “an unreasoning and


3
    (...continued)
683, 685 (10th Cir. 2008). The court said that it was not “clear
under current law” that the use of CNRs violated the Con-
frontation Clause because all circuits considering the
issue have decided that CNRs are nontestimonial. Id.
No. 06-4091                                               11

arbitrary insistence upon expeditiousness in the face of a
justifiable request.” United States v. Carrera, 259 F.3d 818,
825 (7th Cir. 2001) (internal quotation marks omitted).
   We note first that Burgos’s motion for new counsel was
tardy; he waited until the morning of trial to raise the
issue, having told the judge at a status conference only
the week before that he would go to trial. Second, the
district court’s inquiry after being presented with the
request was more than adequate. Judge Clevert took
ample pains to try to understand the basis for Burgos’s
request and explain his rights to him. That the court had
obliged an earlier request for a change of counsel, patiently
listened to Burgos the second time around, and allowed
a lengthy recess for consultation between attorney and
client demonstrate that this was not an “unreasoning
and arbitrary insistence on expeditiousness.” Finally,
Burgos and his counsel were able to communicate and
formulate a defense. They conversed privately during the
recess, and ultimately, Burgos’s attorney provided an
adequate defense to what was a straightforward case. The
district court did not abuse its discretion in declining to
adjourn the trial for the appointment of a third attorney.
                                                  A FFIRMED.




                           8-22-08
