U.S. v. Anekwu, No. 10-50328 (09-20-12) (N. Smith with Nelson and O'Scannlain).
This is an interesting Confrontation Clause decision. In it, the 9th held that it was not plain error for the court to admit certifications of authenticity for foreign public and business records by affidavit and that it was not a confrontation clause violation. The defendant here was charged with running a fraud scheme that preyed upon the elderly. The victim would be informed he or she had won a lottery in Canada and needed to only send in some tax funds to receive it. The business was located in Canada. At trial, the government introduced certificates of authenticity by Canadian officials for mailboxes and custodians for bank records. The defendant objected in limine and at trial based upon reliability. The defendant was convicted of 16 counts of mail fraud. The 9th construed the objection as only being for hearsay and not confrontation, and so it was plain error review. Under this standard, the 9th noted that the Supreme Court had not directly dealt with this issue. There was language in Melendez that indicated officials preparing authenticity certificates might not be preparing documents or materials for litigation. This differed from certificates that attested to the results of tests run expressly for litigation. The 9th had so held in U.S. v. Weiland, 420 F.3d 1062 (9th Cir. 2005), which found that domestic public records are not testimonial. The reasoning applied here, and was not abrogated by Melendez or Bullcoming. Under plain error review, the 9th found no confrontation violation as the records were public or business, and the certification only went to whether they were what they were. The 9th also dealt with a variety of other evidentiary and constitutional issues, under plain error, that went to jury void dire and the defendant's Nigerian background, chart summaries, argument, and jury instructions.