Monday, May 31, 2010

Case o' The Week: Nontestimonial (enough) - Orozco-Acosta, Confrontation Clause, and Warrants of Removal

Because of the sheer volume of prosecutions, trials, and appeals (and the aggressiveness of defenders fighting these cases) "simple" illegal reentry cases generate a disproportionate share of federal law on evidence, criminal procedure, and sentencing. An example of this phenomenon is a disappointing new decision on the reach -- or limits -- of the Supreme Court's recent decisions on the Confrontation Clause. United States v. Orozco-Acosta, __ F.3d __, No. 09-50192, 2010 WL 2089474 (9th Cir. May 26, 2010), decision available here.

Players: Hard-fought appeal by San Diego Assistant Federal Public Defender James Fife.

Facts: Samuel Orozco-Acosta, a man of “advanced age,” was arrested in the desert near the Mexican border with women’s underwear in his pocket (a peculiar fact that the panel relies upon to uphold a high sentence). Id. at *1, *7.

At the illegal reentry trial the defense raised a number of challenges, including a Confrontation Clause objection to the government’s use of a “warrant of removal.” Id. at *1. This “warrant” is a document completed by a border agent (not called at trial), representing that Orozco-Acosta had previously physically been deported. Id. at *3.

The Ninth had previously held that these warrants are non-testimonial (and thus admissible after Crawford) because they are not made in anticipation of litigation. See United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005). The district court overruled the defense objections, admitted the warrant, and Orozco-Acosta was convicted. Id. at *1.

Issue(s): It is “Orozco-Acosta’s contention that [the Supreme Court’s recent decision in] Melendez-Diaz has so undermined Bahena-Cardenas that we should depart from its holding.” Id. at *4.

Held: “[N]othing in Melendez-Diaz is clearly irreconcilable with Bahena-Cardena’s holding that a warrant of removal is ‘nontestimonial because it was not made in anticipation of litigation.” Id. at *5.

Of Note: The “warrant of removal” is not the only Confrontation Clause decision in Orozco-Acosta. The government also introduced – over defense objection – a “Certificate of Non-Existence.” Id. This certificate is a document prepared by an ICE official which stated that Orozco-Acosta had never applied for permission to enter the United States. Id. at *2. The good news is that the government conceded on appeal that the introduction of these certificates violates the Confrontation Clause. Id. at *2. (The bad news is that it was harmless error). Id. at *2-*3.

How to Use: Orozco-Acosta follows a circuit trend of hedging-in the Supreme Court’s recent Confrontation Clause cases of Crawford and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

The key holding of Orozco-Acosta is that Border agents’ “warrants of removal” aren’t “prepared for litigation” – so they escape the Crawford ban on admission of “testimonial” hearsay. Note, however, that in arriving at that conclusion the Court takes judicial notice that over 280,000 aliens were removed in 2006. About 17,000 were prosecuted for illegal reentry in the same time period. Id. at *5 n.4 (about 6%). If a law-enforcement document is offered in a future case, use that very low statistic as the benchmark for evaluating whether or not the document is “prepared for litigation” while fighting the Confrontation Clause fight.

For Further Reading: It is an interesting bar argument: which is more absurdly unjust, crack cocaine or illegal reentry sentencing? Based on the sheer volume of defendants, there’s a strong argument for the latter. For a superb article on the inanity of the federal illegal reentry guideline, see San Diego AFPD Doug Keller’s recent piece, Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases Are Unjust and Unjustified (and Unreasonable Too), 51 B.C. L. Rev. 719 (2010) pdf available here.

Doug’s analysis reveals just how unfair a sentence scheme is when it is driven largely by prior convictions, and it shows how our Latino clients bear the brunt of this uniquely unjust guideline. Merits addition as Exhibit A in our Section 1326 sentencing memos.

Image of the Border Patrol patch from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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