Wednesday, October 25, 2006

Business Records (and Public Records) Not Testimonial under Crawford

United States v. Jose Erbo, Docket No. 02-1665-cr (2d Cir. Oct. 25, 2006) (Wesley, Hall, Trager): Yet another awful decision from the Circuit, this time badly misreading Crawford v. Washington, 541 U.S. 36 (2004), and holding via classic circular reasoning that "a statement properly admitted under Fed. R. Evid. 803(6) [or 803(8)] cannot be testimonial because a business [or public] record is fundamentally inconsistent with what the Supreme Court has suggested comprise the defining characteristics of testimonial evidence." Op.11. At issue specifically was whether the admission of autopsy reports prepared by the NYC Medical Examiner's Office -- which, unlike a hospital's pathology department, generally conducts autopsies only when a person has died "from criminal violence, by casualty, by suicide . . . or in any suspicious or unusual manner," NYC Charter § 557(f) -- without testimony from the doctors who performed the autopsy violated Erbo's Sixth Amendment Confrontation Right, in light of Crawford. The Court says no, principally because autopsy records are business records, which means that they were not prepared in anticipation of litigation, which in turn means that they are not testimonial under Crawford.

Because this Blog cannot say it any better, here is a critique from the Blog "Indignant Indigent" regarding the line of reasoning used in Erbo and how it flouts Crawford:

Despite an autopsy report's seeming fit into the factors set forth in Crawford describing a testimonial statement, the majority of courts that have reached the issue have held an autopsy report is not testimonial in nature and admissible under the business records exception to the hearsay rule. (citing cases) . . . The reasoning underpinning those decisions holding an autopsy report to be non-testimonial can be simply summarized: 1) an autopsy report has traditionally been considered a "business record" for hearsay purposes, 2) Justice Scalia noted in Crawford (when discussing those hearsay exceptions that existed at the time of the 6th Amendment's creation) that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy"; and thus 3) since Crawford states business records are "by their nature . . . not testimonial", and because autopsy reports are treated as business records, therefore autopsy reports are not testimonial. . . .

This reasoning . . . ignores the core concerns of Crawford and, by accepting as given that autopsy reports are "business records" and working towards a conclusion from that point, avoids asking the very question that Crawford and the 6th Amendment requires -- whether an autopsy report, by the nature of its content and purpose, is testimonial. Almost any document can be made into a "business record", because the foundational requirements for establishing a "business record" have nothing whatsoever to do with the actual content or purpose of the document, but rather on the manner in which the document is generated and kept. [See Fed. R. Evid. 803(6)] . . . Police reports containing the results of custodial interrogation can easily meet the technical "business records" requirement if they are prepared and kept in a manner meeting [the Rule's] foundational requirements; however, these statements nevertheless fall squarely within the definition of "testimonial" under Crawford and [should be] excluded absent an opportunity to cross-examine the declarant. . . .

The idea that the analysis can begin and end with the observation that autopsy reports have traditionally been admissible hearsay under the "business records" exception ignores the broader implication of Crawford that guts the rationale for treating "business records" as admissible hearsay if the person preparing the document is not subject to cross. "The justification for the admission of regularly kept business records is based upon grounds similar to all of the hearsay exceptions, namely, that such records bear a great degree of reliability." (People v Selassie, 140 Misc.2d 616, 619 [NY Sup Ct Bronx County 1988].) But Crawford expressly held that the 6th Amendment "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination . . . Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." Crawford, 541 US at 62. Thus, Justice Scalia's observation that most "business records" are not testimonial in nature should not be taken as a blanket rule that any document that would have been treated as a "business record" under a pre-Crawford analysis is therefore not testimonial, because to do so would short-circuit the analysis that Crawford and the 6th Amendment requires.

Undoubtedly, most business records will not be testimonial, simply because most businesses do not keep records with an eye towards prosecuting criminals. The phone company keeps billing records in order to be paid and to have a record of payment; the shopkeeper keeps inventory records to better run his business; but a medical examiner who prepares an autopsy report does so primarily to "collect[...] and document[...] evidence collection for legal proceedings." Under any definition suggested by Crawford, the overriding intent, purpose and substance of an autopsy report places it squarely within the Supreme Court's concept of "testimonial," because autopsy reports are created primarily to facilitate the prosecution of alleged murderers. Crawford, 541 US at 51-52. To argue around this conclusion because autopsy reports were admissible as "business records" pre-Crawford is to exploit a loophole that a plain reading the entire Crawford decision neither supports nor intends.

The problem courts seem to be having is recognizing that Crawford fundamentally changed the game -- no longer is the "reliability" of the statement (as roughly measured by the various hearsay "exceptions") the focus. Rather, the first question to answer is whether a statement is testimonial or not. If not testimonial, a statement is probably subject to the old hearsay rules and can be admitted if covered by a hearsay exception or otherwise reliable (although Crawford does not expressly decide that question). But if a statement is testimonial, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination" -- regardless of whether the statement falls within a classic hearsay exception or is otherwise "reliable." Id. at 68. As Justice Scalia put it in Crawford, the Confrontation Clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." Id. at 61.

[While] . . . Crawford does not define the term "testimonial" or otherwise set forth a bright-line test for determining whether a statement is "testimonial" or not, e.g., id. at 68 ("We leave for another day any effort to spell out a comprehensive definition of 'testimonial.'".), Justice Scalia observed generally that "[t]estimony [...] is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.'" Id. at 51. Beyond this general definition, Justice Scalia noted three possible "formulations of this core class of "testimonial" statements: 1) "ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; 2) statements contained in "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; and 3) statements "that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. Common to all three of these potential standards is one factor -- whether a reasonable, objective declarant would expect the statement to be used by the prosecution at trial.

Under Justice Scalia's general definition of "testimonial" or any of the three potential "formulations" set forth in Crawford, an autopsy report is testimonial. A report detailing autopsy findings, prepared by a medical doctor employed by the government, is by its nature a "solemn declaration or affirmation made for the purpose of establishing or proving some fact,'" and far removed from the hypothetical non-testimonial "casual remark to an acquaintance." Id. at 51. An autopsy report is nothing more than a written record of a medical examiner's findings during autopsy related to manner and cause of death, and is in every important way simply a written version of a medical examiner's testimony at trial. Thus, it is hard to see how an autopsy report is anything but the "functional equivalent" of a medical examiner's expected "in-court testimony", and thus testimonial under at least one of Crawford's proposed "formulations" of the term. See Crawford, 541 US at 51-52. That an autopsy report is not technically in the form of an affidavit (specifically mentioned in Crawford) should not change the otherwise testimonial nature of an autopsy report. Indeed, in most cases, the testifying medical examiner (if he or she did not prepare the autopsy report and did not participate in any way in the autopsy of the victim) do little more at trial than vocalize the contents of the autopsy report for the jury. As to the remaining Crawford factors, there can be little question that a medical examiner prepares an autopsy report with the reasonable expectation that such a report will "be used prosecutorially" and will "be available for use at a later trial." Crawford, 541 US at 51-52. . . . To pretend that autopsy reports are not generated in large part with an eye towards prosecuting murder defendants is to indulge a fiction.

(Click here for the full discussion).

We additionally note that Erbo (argued in July 2005) barely touches on the Davis / Hammon case decided earlier this summer, 126 S. Ct. 2266 (June 19, 2006), in which the Court focused on the "primary purpose" of the statements at issue to gauge whether they were testimonial. Davis/Hammon held that while statements made to police officers for the purpose of resolving an on-going emergency were non-testimonial, similar statements concerning events already expired and potentially relevant to a later criminal prosecution were indeed testimonial. As the Court explained, while statements "made . . . under circumstances objectively indicating that the[ir] primary purpose . . . is to enable police assistance to meet an ongoing emergency" are non-testimonial, statements "are testimonial when the circumstances objectively indicate that . . . the[ir] primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecutions." 126 S. Ct. at 2273-74; see id. at 2278 (non-testimonial statements concern "what is happening" while testimonial statements concern "what happened"). Autopsy reports, especially those made by the City's Medical Examiner's Office, are clearly closer to the latter than the former.

Finally, Crawford's own Jeff Fisher has recent sought cert. on a similar question -- whether a forensic lab report (concerning whether the residue found was marijuana) was admissible as non-testimonial under Crawford. Click here for the fine cert. petition in Pinks v. North Dakota.

Addendum: One final critique of this opinion, which repeatedly cites a New York State court decision -- cited by the opinion as "People v. Durio, 794 N.Y.S.2d 863, 867 (2005)," Op. 12 -- to support its conclusion. See Op. 12, 13, 15, 16 & 18. Based on the form of the Circuit's citation and its heavy reliance on Durio, we assumed that Durio was decided by the New York Court of Appeals (or, at least, one of the Appellate Divisions).

This turned out to false: Durio is a decision by a justice of the Kings County Supreme Court -- i.e., the basic felony trial court in Brooklyn -- and thus of very little precedential value even in New York courts. The correct Bluebook citation should be "People v. Durio, 794 N.Y.S.2d 863 (Sup. Ct. 2005) ", see Bluebook Rule 10.4(b), which would have properly informed the reader of the value of this authority.

We assume that the error was inadvertent (though, among the lawyer population, one would assume that freshly minted ones -- especially those fortunate enough to obtain a federal clerkship -- have Bluebook rules freshest in mind). But the error is nonetheless a critical one that hides the weakness of the opinion and its reliance on questionable authority.

Friday, October 20, 2006

Bad Crimes Make Bad Law: Circuit Misreads Rule 404(b) and Uses Junk Science to Link Possession of Child Porn to Actual Illicit Sex

United States v. Brand, Docket No. 05-4155-cr (2d Cir. Oct. 19, 2006) (Miner, Wesley, Friedman): It appears that child sex cases have surpassed drug cases in their ability to create bad law and erode civil liberties. We saw in last year's "Candyman" cases an erosion of the Fourth Amendment's probable cause requirement; in Brand, we see the Circuit (1) greatly expand the scope of evidence admissible under Rule 404, in contravention of well-settled law; and (2) conclude based on junk science (or, simply, ungrounded assumptions) that possession of images of child sex constitutes proof of a person's predisposition to commit actual child sex. One almost wishes that these kiddie-sex cases would disappear solely because of the misguided law they leave in their wake. (Disclosure: Colleen Cassidy of this Office litigated the case on appeal).

Brand is a New Jersey voice teacher in his late 30s. He engaged in chat-room (and then phone) conversations with -- you guessed it -- an FBI agent posing as a 13-year-old girl. The chats began innocently, with talk of voice lessons and hand-holding, but eventually turned to sexual activity -- a subject matter admittedly initiated by the Government agent / liaison. Op. 26. Brand ultimately arranged to meet the faux teen at the Port Authority Bus Terminal, whereupon he encountered instead several FBI agents and their handcuffs. A later search of Brand's NJ residence found some child porn on his computer, though most of it had been deleted or resided in temporary cache files. Brand was indicted for (1) traveling across state lines with the intent to engage in sex with the faux teen, in violation of 18 USC § 2423(b), and (2) using the internet to entice said agent-teen into engaging in illicit sexual activity, in violation of 18 USC § 2422(b). He was not charged with possessing porn (likely for venue reasons).

Brand's principal defense at trial was entrapment, though he also argued that the evidence was insufficient to show that he had the requisite mens rea. Over objection, the district court admitted, inter alia, (1) sixteen images of child porn found on his computer under Rule 404(b) to show "intent", and (2) many more images of child porn to demonstrate that Brand was "predisposed" to commit the charged offenses. He was convicted and appealed.

We focus on two particularly troubling aspects of the decision affirming Brand's conviction.

First, the Court upholds the 404(b) ruling on the ground that Brand's possession of the porn had a "similarity or some connection" to the charged acts. Op. 30, quoting United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002). And "some connection" between the two exists, the Court explains, "because a direct connection exists between child pornography and pedophilia" as a general, social-science conclusion. Op.31. To support this "finding," the Court cites (1) a Fifth Circuit case holding that in a prosecution for porn possession, the defendant's prior acts of pedophilia were relevant (i.e., the reverse of the situation here), and (2) a Congressional "finding" in this regard, based on (surely unbiased) testimony from an FBI agent. We'll address this odd "fact-finding" by the Circuit below.

For 404(b) purposes, the Court's principal error is its misuse of Garcia. There, the Circuit ruled that other-crimes evidence offered to show intent to commit the charged crime must involve misconduct very similar to, or was connected with, the misdeed for which the defendant is being tried. Indeed, Garcia ruled that the district court there abused its discretion in allowing evidence of a prior conviction (involving possession of a small amount of drugs) in Garcia's trial for conspiring to distribute a large quantity of drugs to show intent, since the acts were not connected or sufficiently similar.

In Brand, the Court seizes upon the "some connection" language from Garcia to uphold the admission of the 404(b) evidence, but in a manner totally divorced from the original context. It is clear from Garcia that by "some connection," the Court meant that the prior act was literally linked to the charged act -- e.g., because of an overlap of participants, similarity in modus operandi, and so on. Here, in contrast, the Court claims that the "some connection" requirement is satisfied because of its own "fact-finding" that possessing child porn was linked, as a social-science matter, to committing actual sex crimes against children. As the Court states, "The 'similarity or some connection' requirement is satisfied in the instant case because a direct connection exists between child pornography and pedophilia." Op. 31. In support, it cites the aforementioned 5th Circuit case, as well as FBI testimony before Congress. Op. 31-32.

This is seriously misguided. First, as mentioned, Brand misreads Garcia's "some connection" requirement for 404(b) evidence offered on intent. The connection required by that earlier decision was not the pseudo-scientific link between possessing child porn and actual pedophilia, as a general matter, recited by the Court, but rather a specific connection between the particular defendant's earlier act and the particular defendant's charged act. Second, under Brand's construal of the "some connection" requirement, there seems nothing left of Rule 404's anti-propensity principle: What difference is there between what the Court allows in Brand and simply using the prior porn possession as propensity evidence? None, so far as we can see.

Finally, perhaps the oddest aspect of this ruling is the Court's fact-finding of a connection, based on bad science, between possessing porn and committing sex crimes on actual children. Where, exactly, does Rule 404(b) call for such a fact finding -- and by a court of appeals, no less? None of this "evidence" was apparently before the district court; at the least, the district court made no such findings of a "direct connection" between, generally, possessing sexually explicit images of children and committing sex crimes on real children.

The Court's related conclusion that evidence of Brand's porn possession was admissible to show that he was predisposed to committing crimes against actual children is similarly flawed. E.g., Op. 36 ("Both Congress and at least one other court have concluded that possession of child pornography signals abnormal sexual attraction to children."). But in addition, this conclusion is flawed because it operates at too high a level of generality. Surely, e.g., any prior misconduct by the defendant "signals abnormal willingness to violate the law"; yet does that justify the admission of any prior misconduct to show predisposition for a particular crime? No, of course, for to answer otherwise would contradict the Circuit's decision in United States v. Harvey, 991 F.2d 981, 994 (2d Cir. 1993), requiring predisposition evidence to be evidence of "past conduct ... 'near enough in kind to support an inference that his purpose included offenses of the sort charged'".

To say that possession of porn predisposed Brand to engage in actual sex acts with actual children because both involved "abnormal sexual attraction to children" begs the question. The real issue in discerning whether predisposition exists in a case where Government inducement has been shown, as here, is whether there is evidence that the defendant previously committed acts sufficiently similar to the one for which he is charged as to support an inference that the defendant would have committed the charged act in the absence of inducement. And to say that possessing images of activity X predisposes one to commit activity X goes way too far in this regard.

Thursday, October 19, 2006

Appellate Remand that Requires Solely Ministerial Act by District Court Does Not Toll Finality Clock

Stanley Burrell v. United States, Docket No. 05-2945-cr (2d Cir. Oct. 18, 2006) (Cardamone, Walker, Sotomayor): This is a real snoozer; the Court narrowly holds that when it affirms a conviction and sentence but remands the case to the district court to perform a purely ministerial act (here, vacatur of one of two counts of conviction, as a lesser-included offense, where the vacatur could not affect the defendant's sentence), the defendant's conviction became final (for retroactivity purposes) when the Supreme Court denied cert. on the original appeal. E.g., Op. 12 ("[A] remand for ministerial purposes, such as the correction of language in a judgment or the entry of a judgment in accordance with a mandate, does not delay a judgment's finality."). This was critical to Burrell because while his conviction became final long before Booker under the theory adopted by the Circuit, it would not yet be final -- and thus he could benefit from Booker -- under his theory, since the district court somehow waited until April 2005 to abide by the Circuit's 2002 mandate to correct the judgment by vacating one count.

That's the gist of the decision, and it apparently creates a conflict with the Ninth Circuit. See United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000). We who live in the Second Realm should all thank the Circuit for ensuring that Burrell, an evil purveyor of poison (or crack dealer), will spend the rest of his natural life in prison, though his Guidelines-mandated sentence concededly violates the Sixth Amendment. Hwew - that was a close one!

Tuesday, October 17, 2006

Which Version of Pereira Should We Follow?

Just to beat this issue completely to death: The version of Pereira that currently appears on Westlaw (United States v. Pereira, ___ F.3d ___, 2006 WL 2925642 (2d Cir. Oct. 13, 2006)), is the first version, in which the Court forgot its own decision in Mejia, rather than the later, corrected one. Anyone want to check LEXIS?

We assume that this will all get corrected soon enough. But the erstwhile confusion could have been avoided if the Court simply indicated that it has amended the original opinion, rather than do so without comment or remark (as if no one would notice ....).

Monday, October 16, 2006

Circuit Silently Changes Decision

United States v. Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006): Sometime this morning, the Circuit altered its original opinion in this case, which as this Blog pointed out (see entry below) somehow forgot about its own decision in Mejia. The opinion now simply rejects Pereira's fast-track disparity argument with a one-sentence cite to Mejia. New Op. 14.

Although this seems a rather substantive alteration, nowhere is there an indication that the original opinion has been amended or modified in any way. Nor did the Circuit change the date of the opinion (still October 13, 2006), even though this new opinion was issued today.

Does this seem like shoddy practice to anyone else? It certainly makes one wonder how often this kind of silent amendment goes on.

Friday, October 13, 2006

Judges Are Always the Last to Know: Circuit Forgets Its Own Decision Rejecting Fast-Track Disparity Argument in Illegal Reentry Cases

United States v. Marvin Pereira, Docket No. 05-5969-cr (2d Cir. Oct. 13, 2006) (Miner, Leval, Calabresi): We had to do a double-take at the publication date of this opinion after reading it. Here's why. Pereira argued on appeal (though he did not do so in the district court) that his 62-month sentence for unlawful reentry after deportation, imposed in the E.D.N.Y., was unreasonable because "the district court did not consider the disparity between his sentence and those received by defendants convicted of unlawful reentry in jurisdictions with fast-track programs." Op. 14. This precise argument, of course, was rejected two months ago by the Circuit in United States v. Mejia, 461 F.3d 158 (2d Cir. 2006) (click here for our unhappy discussion).

Apparently, however, judges of the Circuit do not always read their own opinions. Rather than rejecting Pereira's argument with a one-sentence cite to Mejia, this particular Panel first discussed in detail the plain-error standard, Op. 14-15, and then concluded that the defendant could not meet this standard because "[a]t this time, there is no binding precedent from either the Supreme Court or our Court with respect to the issue of sentencing disparities arising from fast-track programs." Op.15. Oy.

For a fleeting moment, we wondered whether Mejia had been overruled or withdrawn sub silentio. No such luck; a quick Westlaw check confirmed Mejia's continuing vitality. Someone at 40 Foley (or, more accurately, 500 Pearl) simply blew it.

In any event, the opinion also holds that a New York youthful offender adjudication could trigger a 16-level enhancement under the reentry Guideline (§ 2L1.2), where the conviction occurred in an adult court and the defendant served his sentence in an adult prison. Op. 11-12. This aspect of the decision simply extends the reasoning of cases such as United States v. Jones, 415 F.3d 256 (2d Cir. 2005) and United States v. Cuello, 357 F.3d 162 (2d Cir. 2004), to the reentry Guideline. (Click here for our critique of that misguided line of cases).

Postscript: Professor Berman has offered other criticisms of this decision (click here). He complains principally that the Court's casual affirmance of Pereira's above-the-range sentence as "reasonable" is inconsistent with the searching approach it has used to reverse otherwise similar but below-the-range sentences as unreasonable in cases such as Rattoballi. I don't disagree, but my cynicism about the Circuit's behavior in this realm (In sum: "Above the range? OK! Below the range? Bad!") prohibits further commentary in this family-friendly forum.

Wednesday, October 11, 2006

Concealment Element of Money Laundering Statute Satisfied by Showing that Defendant Hid Identity of Transported Cash

United States v. Samuel Ness, Docket No. 05-4401-cr (2d Cir. Oct. 10, 2006) (Winter, Calabresi, Pooler): This decision confirms a split among the Circuits concerning the meaning of the concealment element of the "transaction" and "transportation" money laundering statutes, 18 U.S.C. § 1956(a)(1)(B)(i) & (1)(2)(B)(i). Specifically, while some Circuits have ruled that the defendant has "conceal[ed] or disguise[d] the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity" only where s/he has attempted to create a false appearance that the funds are legitimate, e.g., United States v. Cuellar, 441 F.3d 329 (5th Cir. 2006), the Second Circuit has ruled that the concealment element is satisifed merely by a showing that defendant has engaged in conduct designed to conceal the identity of the funds, see United States v. Gotti, 459 F.3d 296 (2d Cir. 2006).

Applying Gotti to this case, the Circuit rejects Ness's sufficiency challenge where the evidence at trial showed that he, the operator of an armored car carrier business, delivered cash from drug sellers to drug suppliers and attempted to hide (for obvious reasons) the fact that he was doing so. Op. 4. Ness likely would have prevailed in the Fifth Circuit, which vacated a money-laundering conviction based on evidence showing that the defendant hid drug money in the floorboard of his car while driving toward Mexico. Cuellar, supra.

Wednesday, October 04, 2006

A Good Thing from Our Friends in Oregon (and It's Not a Pinot)

Steve Sady of the Oregon FPD has made available the latest version of his article, "Developments in Federal Search and Seizure Law" (click here for a link to the PDF version). The article outlines in detail all the key issues in search and seizure law, with an emphasis on "trac[ing] recent developments in selected areas and juxtapos[ing] the lead cases [(often pro-Government)] with federal court cases in which the defendant prevailed." Although most of the examples of favorable lower court cases are from the Ninth Circuit, Steve's article should prove invaluable in "encourag[ing] creative use of the available precedents that may make a decisive difference for our clients in state or federal court." So print it out, read it on the subway, and dream of the Ninth Circuit!