Sunday, September 23, 2012

Case o' The Week: Ninth Avoids Canadian Confrontation, Anekwu and Confrontation Clause

Avoid Confrontation and Canadians, advises James Howlett.

The Ninth concurs. United States v. Anekwu, 2012 WL 4125861 (9th Cir. Sept. 20, 2012), decision available here.

Players: Decision by Judge N.R. Smith. Hard-fought appeal by CD Cal AFPD Alexandra W. Yates.

Facts: Anekwu was extradited from Canada and prosecuted for fraud. Id. at *1. At trial, the government sought to introduce foreign business and public records from Canada, linked to Anekwu. Id.; see 18 USC § 3505, FRE 803, 902. The government offered no Canadian record-keepers as witnesses, instead relying on signed “certifications.” Id. at *2. The records were admitted over Anekwu’s hearsay (but not Confrontation Clause) objection, and he was convicted. Id. at *3, *4.

Issue(s): “The primary question raised on appeal is whether the district court committed plain error by admitting certificates of authentification for foreign public and business records by means of affidavit in violation of the Confrontation Clause.” Id. at *1. “Whether certifications of business records violate the Confrontation Clause is an issue of first impression for this Court.” Id. at *5.

Held:We cannot conclude that the district court plainly erred in admitting certificates of authentification for foreign public and business records into evidence." Id. at *3. “Following the reasoning of [the Tenth Circuit’s decision] in Yeley-Davis, the certificates authenticated otherwise admissible records . . . . If so, then the admission of the authenticating certificates for the mailbox applications and bank records would not have violated the Confrontation Clause. Thus, we cannot conclude that the district court plainly erred by admitting the certificates for the foreign business records.Id. at *6.

Of Note: Like Apprendi, feels like the Supreme’s great 2004 Crawford decision is suffering the death of a thousand cuts. In Anekwu, Judge N.R. Smith distinguishes the Canadian records at issue here from the Supreme Court’s Confrontation cases in Melendez-Diaz and Bullcoming. Id. at *5-*6. The result is an unfortunate one-two punch: for the first time, the Ninth holds that certifications of business records are not “testimonial” and therefore don’t trigger the Confrontation Clause bar. Id. at *5. Immediately expanding its new rule, the Court then concludes that certifications of foreign business records fall within the same reasoning and are admissible if compliant with 18 USC § 3505(a)(1). Id. at *5-*6. 

It is a disappointing decision; the Ninth seems to adopt the Tenth Circuit’s reasoning (Yeley-Davis) without really wrestling with testimonial aspects of this type of evidence. While Anekwu is another unfortunate chink in our Confrontation Clause armor, remember that the Supreme Court has not yet spoken on this unsettled area of law: preserve objections.

How to Use: Raise a Confrontation Clause objection at trial, get de novo review. Id. at *3. Raise only a hearsay objection at trial, and you’ll be saddled with the nearly-insurmountable bar of plain error in the Ninth when making your constitutional argument. Id. In this case, “Anekwu failed to object to the admission of the foreign records under the Confrontation Clause. Rather, Anekwu objected to the admission of the foreign records on hearsay grounds.” Id. The result? “[P]lain error review of Anekwu’s Confrontation Clause claim is appropriate.” Id. at *3.  

Anekwu again illustrates that handy mantra: constitutionalize claimsIf you utter the words, “hearsay” in a trial objection, always throw in “and violates the defendant’s Sixth Amendment Confrontation Clause rights.” That little addition can make all the difference on appellate review.
For Further Reading: Lurking in the shadows is a huge evidentiary issue potentially impacted by Anekwu: the “testimonial” nature of digital evidence. For an interesting piece on this issue, see Deborah L. Meyer, Melendez-Diaz v. Massachusetts: What the Expanded Confrontation Clause Ruling Means for Computer Forensics and Electronic Discovery, 28 Temp. J. Sci. Tech. & Envtl. L 243 (2009).

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


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