United States v. Humberto Duron-Caldera, 2013 U.S. App. LEXIS 24899

Background

In 2011 a federal grand jury indicted Humberto Duron-Caldera for illegal reentry under 8 U.S.C. § 1326(a); the government had to prove he was an alien and the defendant argued he might have derived U.S. citizenship from his U.S.-citizen mother under the 1952 statute.
The government sought to admit a 1968 sworn affidavit by the defendant’s maternal grandmother, Francisca Serrato, asserting the mother lived in the U.S. only from Sept. 1960–Apr. 1961; the affidavit was taken during a document-fraud investigation.
Serrato was deceased at trial; the government offered the affidavit through an immigration officer who located it in A-files but did not testify to the circumstances of its creation.
The defense moved to exclude the affidavit under the Confrontation Clause as testimonial hearsay; the district court admitted it, finding it nontestimonial because it was not created to accuse Duron-Caldera.
The affidavit was a key piece of the government’s proof against the defendant’s derivative-citizenship theory; the jury initially deadlocked then convicted; defendant appealed arguing a Sixth Amendment violation.

Issues

Issue	Duron-Caldera’s Argument	Government’s Argument	Held
Whether Serrato’s 1968 affidavit was testimonial under the Confrontation Clause	Affidavit is testimonial; Serrato unavailable and defendant had no prior opportunity to cross-examine	Affidavit was taken for immigration purposes and therefore nontestimonial	The affidavit was testimonial; government failed to prove otherwise and admission was error
Whether the affidavit could be treated as nontestimonial because it did not specifically accuse Duron-Caldera	The Clause protects against testimonial statements used prosecutorially regardless of whether they directly accuse the defendant	The affidavit was not aimed at accusing Duron-Caldera and thus is nontestimonial under an "accusation" formulation	Court rejected an "accusation-only" test; history and precedent support a broader primary-purpose test and Crawford/Melendez-Diaz line controls
Whether business-record or other hearsay exceptions cured the Confrontation problem	Cross-examination right not satisfied by business-record foundation; hearsay exception analysis does not obviate Confrontation Clause requirements	Affidavit is an immigration/business record and admissible without confrontation	Court held business-record argument insufficient to defeat Confrontation claim; Rule-based admissibility does not replace Crawford analysis
Whether the Confrontation error was harmless beyond a reasonable doubt	Admission likely affected jury given affidavit’s importance and prosecutor’s reliance in closing; defendant had no chance to cross-examine	Any error was harmless because other documentary evidence corroborated Serrato’s statements	Error was not harmless; affidavit was important, not merely cumulative, and government did not prove lack of any reasonable possibility it contributed to conviction

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (testimonial statements inadmissible without prior opportunity for cross-examination)
Davis v. Washington, 547 U.S. 813 (primary-purpose test for testimonial statements)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (affidavits and similar certificates can be testimonial)
Chapman v. California, 386 U.S. 18 (harmless-error standard beyond a reasonable doubt)
Delaware v. Van Arsdall, 475 U.S. 673 (scope of cross-examination and prejudice analysis)
Marks v. United States, 430 U.S. 188 (interpretation of fragmented Supreme Court opinions)
United States v. Polidore, 690 F.3d 705 (5th Cir. Confrontation-Clause standard and de novo review)
United States v. Jackson, 636 F.3d 687 (government bears burden to show evidence is nontestimonial)
United States v. Alvarado-Valdez, 521 F.3d 337 (harmless-error considerations in Confrontation-Clause cases)