*1 Finally, expert judgment it. seeks. The court the district was corroborated vengeance hereby their is gangs Asian testified to Inthavong have required that would ethic AFFIRMED. car kicked. retaliate once his was this, Inthavong’s to all In addition being statements he confessed
other physically scene of the murder
attacking the victim. In November 5 his
confession, Inthavong that he admitted participating at the scene but denied
was In the attack on his trial Dobson. America, UNITED STATES testimony, Inthavong that he had admitted Plaintiff-Appellee, with returned friends to the scene had v. police Finally, Dobson. record kicked Inthavong saying, asking “I hom keep ed WEILAND, William Defendant- why ey he shoot. He almost dead was Appellant. we were ... him.”
when done with These No. 04-30091. weigh heavily against confessions Intha- held, vong. As we have defendant’s “the United States Court of Appeals, probably proba confession most own is Ninth Circuit. damaging that can
tive evidence be Argued and Submitted March against admitted him.... [T]he admis Aug. Filed of a sions defendant from the actor come himself, knowledgeable the most and unim
peachable source of information about his
past conduct. Certainly, confessions have
profound impact Taylor jury....” on the Maddox, Cir.
2004) (alterations in original). Even with confession, September
out the it would be unfair say Inthavong
not was
convicted out of his own mouth.
Even September without the 16 confes-
sion, Inthavong’s own statements and an
abundance of evidence to his partic- attest
ipation in Dobson’s murder. The Califor- Appeal
nia Court of objectively was rea-
sonable to admitting rule error
Inthavong’s September 16 confession was beyond
harmless doubt. reasonable
IV
Because the California court’s harmless
error holding reasonable, objectively
we cannot grant Inthavong relief he *4 FERNANDEZ, TASHIMA,
Before:
GOULD,
Judges.
Circuit
GOULD,
Judge:
Circuit
Defendant-Appellant William Weiland
appeals his conviction and sentence for one
possessing
count of
two firearms and am
felon, in
munition as a convicted
violation
§ 922(g)(1),
of 18 U.S.C.
and one count of
924(d)
forfeiture,
§
pursuant to 18 U.S.C.
2461(c).
argues:
and 28 U.S.C.
1) that Federal Rule of Criminal Proce
41(b) requires suppression
dure
of the fire
during
and ammunition seized
arms
search of his home because the warrant
that authorized
search was not re
by a
quested
“federal law enforcement offi
*5
“attorney
government;”
cer” or an
for the
2) that records of his four Oklahoma Sec
Degree Burglary
ond
convictions should be
excluded under Federal Rules of Evidence
901(a),
§
802 and
28 U.S.C.
and the
Confrontation Clause of the Sixth Amend
3)
ment;
the admission
four convic
prove
tions to
Weiland’s status as a felon
only
required
unduly
when
one was
was
prejudicial under Federal Rule of Evi
4)
403;
dence
that the
did not
establish that
for
his convictions
Oklahoma
Degree Burglary
Second
met the defini
“generic
tion of
burglary”
Taylor
under
States,
575, 599,
495 U.S.
110 S.Ct.
5)
(1990);
istrate for the home of William Wei- trial, Before Weiland moved suppress land at 42313 North Sherman Road in house, the firearms found his arguing Spokane County, Washington. he When the warrant completed by affidavit warrant, applied for the Ricketts had a Ricketts was defective deputa- because his “Special Deputation Appointment” from tion a Special Deputy as United States him, permitting the U.S. Marshals Service Marshal did not make Ricketts a “federal authority delegated by “under the Attor- law enforcement officer” within the mean- General, ney perform ing the duties of the of Federal Rules of Criminal Proce- 41(b) 41(a)(2)(C). Special Deputy Office of dure United States In the sup- pression hearing, Ricketts, appropriate Marshal as directed offi- Weiland called that, and Ricketts testified with the assis- cial the United States Marshals Service secretary, tance of his personally he pre- appropriate or some other Federal Official pared the warrant upon affidavit based designated.” appointment as so The indi- information received from other sheriffs cated that the Bureau of Alcohol Tobacco deputies.1 Ricketts then Drug notified the (ATF) spon- and Firearms was Ricketts’s (DEA) Agency Enforcement and ATF soring agency specifically authorized Special Agent Darrell Bone that he Ricketts seek and execute arrest and “[t]o planned apply warrant, for a federal but supporting search warrants a federal task agency no one from either assisted him in force.” appointment further stated drafting Ricketts, the warrant affidavit. par- Ricketts authorized to “[n]ot however, present did the warrant affidavit ticipate drug in federal investigations un- Attorney Rice, to Assistant U.S. Tom who deputized by less also DEA or FBI” and *6 it, changes, reviewed made minor ini- special deputation that the did not consti- tialed it “TOR.” Someone from the U.S. employment by tute formal agen- federal Attorney’s office magistrate notified the cy. that coming Ricketts would be awith war- rant afternoon, application. Later that law enforcement officers executed the search warrant for At the suppression hearing, Ricketts property Weiland’s and seized a mm stated that he purpose understood that the Rifle, HiPoint a .22 caliber Winchester ri- special deputation of his “support was to fle, ammunition, marijuana grow, small the ATF office in investigations their and computer files that contained child to conduct investigations involving federal pornography. government The subse- firearms violations ... obtain search [t]o quently charged possessing Weiland with warrants, to be able to be obtain [sic] firearms and ammunition aas convicted search warrants and execute arrest war- felon, § in violation of 18 922(g)(1), U.S.C. rants.” Although got- Ricketts could have and forfeiture of the firearms and ammuni- warrant, ten a state search he testified 924(d) tion, pursuant § to 18 U.S.C. and 28 that apply he chose to for a federal war- 2461(c). U.S.C. The indictment also rant high probability because of the gave government’s notice of the intent to the case would be referred to the U.S. pursue sentencing enhanced under Attorney prosecution. for federal Ricketts grand jury, pur- Before the Ricketts testified that officials. Ricketts also testified that the special pose he had received information from of his warrant affidavit was to search for firearms, agents marijuana, of the ATF pornography. and other federal and state and child that, view, Accompanying in his his investi- Greene’s declaration was a
also testified Secretary regarding federal certificate under seal from the primarily gation was attesting ATF of State of the State of Oklahoma that fell within violations firearms E. Manager, Richard Greene was the mainly concerning than jurisdiction, rather Records Unit of the Oklahoma hearing, Offender drug crimes. After the federal Corrections, Department of Greene court denied motion the district 1) sign certifi- that Ricketts did not was authorized the attached holding: suppress, 41(b) cate, signature and that Greene’s on the acting Rule because he was violate 2) genuine. deputation, and certificate was The defendant pursuant special to his Rule, opposing a memorandum if submitted that even Ricketts had violated “penitentiary packet” admission of the on would not be warranted. suppression day trial. the first of the trial, government Before submitted trial, government At moved to admit admissibility a memorandum on the of “penitentiary in the packet” documents packets.” “penitentiary “penitentiary self-authenticating public pur- as records relating to contained four packet” Weiland suant to Federal Rule of Evidence Degree Bur- unredacted Oklahoma Second hearsay subject and as exception to the convictions, glary fingerprints from Wei- reports pursuant records and land, Weiland, and a fac- photograph 803(8). objected, and the transmittal from Paula Menifee at simile objection, district court sustained the rul- Records office to the the Offender Okla- ing “penitentiary packet” that the was not Investigation Bureau homa State sufficiently reliable and was thus inadmis- (OSBI) “any requesting fingerprints, pho- sible because the facsimile from Paula rap sheets” In tographs, and on Weiland. suggested Menifee to the OSBI that the addition, packet an official contained custody records were not fact in the certification which stated: Greene. I, hereby E. GREENE cer- RICHARD
tify: manager I am the Following ruling, the Offender this Unit, Depart- Records of the Oklahoma then attempted “peni- to authenticate the Corrections, agency having tentiary ment of packet” and four other certified jurisdiction all over adult correctional copies of the Oklahoma convictions as rec- *7 Oklahoma; facilities of the state of that ords of a regularly activity conducted pur- my custody officer, legal as such are suant to argued they and that original the persons subject files and records of to the business records hear- 803(6). Department say heretofore committed to the exception in Rule As founda- 1) Corrections; of fingerprint that the tion for the business exception, records 2) card, 3) photograph, and commitment government provided a blank form and documents attached are copies said that it would filled Nancy be out A. original persons Young, Officer, records of Programs heretofore Administrative Department committed to said objected of Cor- OSBI. Weiland on the basis that rections, and who served term of in- he had not govern- received notice of the therein; carceration/supervision that I ment’s “peniten- intent authenticate the compared have at- foregoing tiary packet” and and certified convictions as copies tached with their respective origi- business records and that the admission of nals now on file in my office and each these right documents would violate his full, true, thereof contains and is a and Young. confront and cross-examine correct copy original. from its said objection district court overruled the conditionally “peniten- burglaries admitted both the tailed that occurred during a tiary packet” and the certified records of one-week Oklahoma crime spree in Janu- ary 1976. Each pending receipt Young’s provided conviction Information that forcibly Weiland had building entered a completed affidavit. The affidavit arrived with the intent unlawfully to take per- immediately before the case went to the sonal property of another. The district jury, and contained a statement from court ruled that these documents estab- Young stating that the records were made lished that Weiland had been convicted of person knowledge with first-hand a crime that met the elements generic a regularly the course of conducted activi- burglary under the categorical modified ty. unconditionally The district court then approach. upon Based the four Oklahoma admitted all four of the certified convic- convictions, Second Degree Burglary “penitentiary packet” tions and into district court sentenced Weiland to 188 evidence. imprisonment months pursuant to the objected further Weiland to the admis- Act, Armed Career Criminal 18 U.S.C. multiple Degree sion of Oklahoma Second 924(e). § The district court also denied convictions, that, Burglary arguing be- Weiland’s motion for a adjust- downward government prove cause the needed to acceptance ment for of responsibility pur- only one conviction to establish his status suant to U.S.S.G. 3E1.1. timely Weiland felon, second, as a the admission of the appeals his conviction and sentence. third, and fourth convictions was more prejudicial probative than in violation of II Rule 403. The district court overruled the argues that the firearms objection and admitted all four convictions pursuant seized to the federal search war redacting without them. The district court rant should suppressed be as the fruits of did, however, jury instruct a violation of Federal Rule of Criminal Oklahoma records had “been admitted for 41(b) Procedure because Ricketts was nei purpose” a limited jury should ther a “federal law enforcement officer” only determining “consider them wheth- nor “attorney government” for the er the met its burden of ha[d] the time that applied he for the warrant.2 proving charged the elements of the crime prevail To suppress, on his motion to Wei- in the Superceding Indictment.” The dis- A) land must demonstrate that: Ricketts trict court jury further instructed the “request” made a for a federal search war it should “not consider a prior conviction rant and was not then a “federal law en guilt as evidence of of the crimes for which B) officer,” forcement assumed trial, the Defendant is now on other than 41(b) violation of Rule rose to the level of a as to proof one of the elements of those violation, constitutional in preju resulted jury crimes.” The convicted Weiland of Weiland, dice to or was the result of inten possessing felon, a firearm as a convicted *8 tional disregard and deliberate of Rule 41. § in 922(g)(1). violation of Johnson, 652, States 641 F.2d (9th Cir.1980). sentencing, At government present- 655-57 ed a Judgment both and on Sentence Plea A Guilty an and Information for each of the four Degree Burgla- Oklahoma Ordinarily, Second a state law enforcement offi- ry by convictions. The four Informations de- cial 41 applying violates Rule for and Luk, person 2. We de review novo whether a re- ment officer.” See United States v. 859 667, questing a warrant is a “federal law enforce- F.2d 670 1070 1997) (holding that a federal search warrant. Id. state law enforce-
obtaining a Luk, 41 656; subject F.2d at 678. Rule di- ment criminal agent sanc- may only issue “[a]t that a warrant impersonating rects tion for a federal officer law enforcement of a federal request agent falsely when that claimed to abe attorney government,” Marshal). for the officer or an Special Deputy U.S. We thus 41(b), P. and defines a FED. R. CRIM. impression consider as a matter of first “federal law enforcement officer” as “a whether, for Rule 41 a purposes, deputa- (other attorney government agent than an Special a Deputy tion as U.S. Marshal government) engaged who is in for the confers “federal law enforcement officer” enforcing the criminal laws and is within official, status on a state law enforcement any category by of officers authorized and we hold that it does. Attorney request a search war- General position Special Ricketts’s as a Deputy 41(a)(2)(C). FED. R. P. rant.” CRIM. him U.S. Marshal made a “federal law that, government argues at the time meaning enforcement officer” within the applied Ricketts for the federal warrant to regulations Rule 41. The statutes and home, search Weiland’s he was “federal give authority deputize the Marshals law enforcement officer” reason his local perform law enforcement officers to position Special Deputy as a Marshal U.S. Marshals, Deputy the functions of U.S. event, that, it was the U.S. 566(c); 0.112, § § U.S.C. 28 C.F.R. Ricketts,
Attorney, and not who made the long U.S. Marshals have authority had the “request” for a federal search warrant.3 to seek and execute federal search war- rants, §§ Rick- U.S.C. When is no direct precedent
There
our
warrant,
applied
etts
for the
his affidavit
regarding
circuit
whether a state or local
indicated
he authored the warrant
law enforcement official becomes a “feder
capacity
Special
affidavit
his
as a
Depu-
al
enforcement officer” for
law
Marshal,
ty U.S.
not in his capacity as a
purposes by
deputation
reason of a
as a
such,
local law enforcement official. As
have,
Special Deputy U.S. Marshal. We
“government
Ricketts was a
...
agent
en-
however, in
context
pros
of criminal
gaged
enforcing
the criminal laws” as
assaulting
officer,
ecution for
a federal
General,
Attorney
authorized
specially deputized
held that a state official
request
his
for a warrant did not violate
as a
U.S. Marshal was
“officer ... of
41(a)(2)(C).4
Rule 41. FED. R.
P.
CRIM.
meaning
the United States” within the
though
111 even
U.S.C.
he was not a
B
“employee”
provi
federal
within related
sions of the United States Code. United
if
Even we were to conclude that
Diamond,
States v.
251-52 Ricketts was not a “federal law enforce
(9th Cir.1995); see also United States v. ment officer” and that a Rule 41 violation
(D.C.Cir.
Bryant,
occurred,
1467-69
suppression of the firearms and
capacity
Because we hold that
specially deputized
Ricketts was
"feder-
their
as
federal
officers,
al law enforcement officer” within the mean-
they
subject
law enforcement
will be
ing
question
of Rule
we do not reach the
to the same Rule 41 and other standards as
Ricketts,
Attorney,
whether the U.S.
or both
all other federal law enforcement officers.
"requested” the warrant.
States,
214, 217,
Rea v. United
350 U.S.
(1956) ("The
S.Ct.
Third, argues finger that the record reflects that neither photograph and four records prints, nor other law enforcement Ricketts Degree for Oklahoma Second acted in “intentional and deliberate conviction officer authenticated, Martinez-Garcia, properly not Burglary disregard” of Rule issue, agree argues rejected argument, we court this 5. As a threshold precluded objecting to analysis. general, permissible that Weiland was from it is with its In admissibility of the convictions at trial evidentiary objection exhibit to an to raise required and was to raise these issues in a at the time it is offered for admission. pretrial suppression motion. The district *10 by Federal Rule of Evidence offer into required provide as evidence to an adverse 901(a).6 government The counters that party with a fair opportunity to chal- self-authenticating the records under were lenge them. 902(4) 902(2), governing and certi- Rules case, undisputed In this it is gov- the records, public fied of and Rule copies provided ernment never written notice to 902(11), governing certified domestic rec- of Weiland its intention to offer the rec- regularly activity. of Al- ords conducted of self-authenticating ords conviction as reject
though argument we the the 902(11) govern- under Rule and that the of conviction were records self-authenticat- ment did not Young’s make declaration 902(11), ing agree under Rule we that the inspection available for until its con- of conviction after records were self-authenticat- ditional introduction into evidence.7 902(4) Such 902(2). ing under Rules lack of notice violates both the letter and 902(11), respect With to Rule the 902(11) spirit the of provides Rule the “penitentiary packet” documents the party opposing admission with substantial- properly were not authenticated under the ly opportunity no verify authenticity to exception for certified domestic of records any of either the records or foundational regularly activity conducted for three rea testimony or Finally, affidavits. if even First, may sons. a party not circumvent government could have circumvented requirements for the authentication of 902(4) requirements by of Rule invok- 902(4) public records outlined in Rule 902(11), ing Rule provided the certification 902(11). invoking 902(4), Rule Rule not by Young, which was neither under seal 902(11), Rule describes the manner 902(1) pursuant to Rule nor itself certified establishing authenticity of public rec as authentic an official with a seal Second, ords. plain language of Rule pursuant 902(2), 902(11) to Rule was not sufficient requires that: provide proof to authenticity of the party A intending to offer a record into conviction, records of fingerprints, paragraph evidence under this pro- must the photograph, again which we emphasize vide written notice of that intention to all parties, adverse records that fall within and must make the 902(4). record and Accordingly, declaration for in- available we hold that the dis- spection sufficiently in advance of their trict court erred in grounding the admis- When, here, Also, proper as the issue objected authenti to the offer of the fact, significant question cation involves a photograph, fingerprints, the convictions we review for abuse of discretion a district appropriate and their certification at an time: court decision to properly admit evidence as government when the offered that exhibit at authenticated. United States v. Mateo-Men government, trial. no less than other dez, 1041-42 litigant, required is ensure evidence it We review de interpreta novo a district court admissible, intends to anticipate offer is tion of an authentication rule. Id. objections opposing parties, from and to com- ply with the Federal Rules of Evidence. A 7. The maintains that it should be required give defendant prosecu- is not nearly complete excused from its failure to tion advance notice of his or her intent to comply plain language with the of Rule object proper for lack or 902(11) authentication pre- because Weiland did not make a prohibition violation hearsay; of the on in- suppress trial motion to the convictions con- deed, cases, many inability due to the "penitentiary tained com- packet.” in the This ar- gument pletely testimony, to foresee lacks merit. Rule foundational does not exception contain require- objection to the such an impossi- notice advance would be ment good for cause or otherwise. ble. shown—
1073
purpose
inquiry
the
of our
into the
packet” and certi-
authen-
“penitentiary
of the
sion
902(11).
“peniten-
Rule
tication of the documents in the
convictions on
fied
901(a).
tiary packet.” FED. R. EVID.
Nevertheless, although the dis
the contents
admitting
erred in
trict court
in
“peniten-
The facsimile included
the
under Rule
“penitentiary packet”
of the
tiary packet,” apparently from Greene’s
902(11),
that
the records were
we hold
OSBI,
office to Paula Menifee in the
does
authenticated because the docu
properly
change
analysis.
not
our
in-
The relevant
were
“penitentiary packet”
in the
ments
quiry is whether Greene had the records in
records admissi
self-authenticating public
legal custody
person
his
or was an “other
902(4).8
902(2) and
Ma
ble under Rules
certification,”
authorized to make the
not
teo-Mendez,
1044-45;
United whether
the records were
in
stored
his
(9th
F.2d
320
Huffhines,
States
personal physical custody.
FED. R.
Cir.1992).
Rule of Evidence
Federal
902(4);
Combs,
EVID.
United States v.
902(4) provides for the self-authentication
(9th
Cir.1985);
see
of:
States,
also Yaich v. United
by
A
... a document authorized
copy of
If Greene had the
actually
to
recorded or filed and
law be
legal custody
records in his
and certified
office,
public
or
in a
in-
recorded
filed
they
in compliance
were accurate
with
form,
compilations
any
in
cluding data
902(2),
902(1),
902(3), they
Rule
or
were
by
correct
the custodian or
certified as
902(4).
properly authenticated under Rule
person
other
authorized to make the
provision
No
the Federal Rules of Evi-
certification,
complying
by certificate
requires that
dence
Greene also be shown
(3)
(1), (2),
rule
paragraph
with
or
of this
kept
physical
to have
the
records
his
complying
any
Congress
or
with
Act of
times,
custody
all
long
so
as the records
by
Supreme
prescribed
or rule
“actually
were
recorded or filed in a
statutory authority.
to
pursuant
Court
902(4).
office.” FED. R. EVID.
Federal
902(4).
FED. R. EVID.
44(a)(1), incorpo-
Rule of
Procedure
Civil
conviction,
photo-
rated into Federal Rule of Criminal Proce-
The records of
Weiland,
analysis.
with our
FED.
fingerprints
and his
fall dure
accords
graph
44(a)(1) (“An
of R.
P.
official record
provisions
the self-authentication
CIV.
within
902(2).
902(4),
any
may
...
...
be
kept
to Rule
within
state
Pursuant
thereof
by
by
publication
correct
evidenced
official
records were certified as
having
Greene,
by copy
or
attested
the officer
who also stated that he was
... and
legal custody
and that he
the record
legal custodian of the records
by a certificate that such offi-
copies
accompanied
the certified
to their
compared
had
902(2),
custody. The certificate ...
to Rule
cer has the
originals. Pursuant
by any public
having
officer
Secretary
may
of the State of Okla-
be made
State
homa,
seal,
having
a seal of office and
official duties
under
certified that Greene
political
the district or
subdivision which
authorized to execute the certificate
was
kept, authenticated
signature
genuine.
the record is
Greene’s
office.”). Moreover,
that the records
seal of the officer’s
This suffices
establish
be,
official eusto-
fulfilling even if
were not the
they purported
what
Greene
properly
district court
if the records were
Although
we
the district court
hold
provision. See
admitting
"penitentiary packet”
authenticated under
other
erred
Loyola-Dominguez,
F.3d
self-authenticating
pur-
United States v.
business record
as
1997).
902(11),
may
Cir.
suant
to Rule
we
affirm
803(6)
“peni-
attempt
contained in the
Rules
dian of the records
combine
affidavit,
seal,
under
tentiary packet,”
hybrid
into a
rule to excuse its
Secretary of
of the
provided by the
State
comply
failure to
with either. See United
*12
Oklahoma,
(2d
that Greene
State of
establishes
523,
Doyle,
States v.
130 F.3d
“person
Cir.1997).
authorized to make the cer-
Also,
previously
as we
dis-
902(4).
tification.” FED. R. EVID.
We
III.A.,
government
cussed in Part
the
hold that
the records contained
the
properly
failed to authenticate
the docu-
packet”
“penitentiary
were self-authenti-
“penitentiary packet”
ments
the
under
902(4)
records under Rules
cating public
902(11)
Rule
and did not authenticate the
902(2).
and
Nancy Young.
affidavit of
Excluding the
affidavit,
improperly
Young
admitted
the
B
government
presented
has
no evidence to
that,
Weiland next maintains
convictions,
fingerprints
establish
authenticated,
properly
if
even
the docu
photograph
scope
and
fall within the
“penitentiary
ments contained in the
pack
803(6),
Rule
and the district court erred in
et” should have been excluded as inadmis
admitting
ground.
these documents on that
hearsay pursuant to
sible
Federal Rule of
government responds
Evidence 802.9 The
Because
the district
court
that the convictions are admissible under
erred in holding that the documents in the
hearsay exceptions
enunciated Rules
“penitentiary packet” and the certified
803(22)
803(6), 803(8), and
and that
convictions were admissible as records of
fingerprints and photograph are admissi
regularly
activity
conducted
under Rule
803(6)
803(8).
ble under Rules
and
803(6), we next turn to the question of
begin by rejecting
argu
convictions,
We
whether the
photograph and
convictions,
ment that
fingerprints
fingerprints
and
any
are admissible under
oth
photograph
properly
pursu
hearsay
admitted
er
exception. Loyola-Domin
ant to
hearsay excep guez,
First,
the business records
ments of
Wilmer,
Rule
seeking
admit
States
(9th Cir.1986).
records as business records under
500-01
finger
803(6).
may
Nor
prints
and photograph do not contain in-
9. We
hearsay
review de novo a
exception.
district court construc-
admit evidence
under
rule,
Hernandez-Herrera,
hearsay
tion of a
and we review for an
United States v.
abuse of discretion a district court decision to
“ ‘police
c
reports
officers’
akin to
formation
contemporaneous observations
of their
next maintains that
”
by the adver-
might
crime’
be biased
admission of the convictions violated 28
Orozco, 590
report.
nature of the
sarial
disagree.
U.S.C.
We
Section
v. Gra-
(quoting
F.2d at 794
United States
1738, the federal full faith and credit stat
(2d Cir.1976)).
598, 604
To
dy, 544 F.2d
ute, states, in part:
contrary,
fingerprinting
photo-
judicial
The records and
proceedings of
cataloguing a
suspect,
graphing
State,
any
court of
Territory
such
or
types
are the
judgment
sentence
Possession,
thereof,
copies
or
shall be
*13
unambiguous
routine and
matters to which
in
proved or admitted
other courts with-
in
hearsay exception
records
public
in the United States and its Territories
803(8)(B)
designed
apply.
Rule
is
Orel
and Possessions
the attestation of the
lana-Blanco,
(citing
ly
hearsay
rooted
exception test enunciat
D
Roberts,
56, 66,
ed in
Ohio
448 U.S.
(1980),
S.Ct.
L.Ed.2d 597
survives
argues
next
See, e.g., United States v. Sa
prior
admission of the records of his
Okla Crawford.
(2d
223, 227,
get, 377 F.3d
230-31
Cir.
subjecting
homa
without
convictions
*14
2004);
Manfre,
v.
United States
Secretary of State of the State of Okla
832,
1
838 n.
homa,
custodian Rich
Oklahoma records
Greene,
Nancy
ard E.
and OSBI officer
turn
paramount question
We first
to the
Young to cross-examination violated the
of whether the evidence admitted without
Amendm
Confrontation Clause of the Sixth
opportunity for cross-examination was tes
ent.11 To determine whether evidence
Here,
timonial in nature.
the documents
was
in
admitted
violation of the Confronta
contained in the “penitentiary packet” in
Clause,
tion
framework set
we look to the
corporate
layers
and,
two
hearsay,
cor
forth in
541
Washington,
v.
U.S.
Crawford
respondingly,
potential
two
Confrontation
36,
1354,
124
177
S.Ct.
158 L.Ed.2d
1)
problems:
Clause
the records them
(2004).12
2)
selves, and
the
statements
Greene
In conducting
inquiry pursuant
to
Secretary
State
the State of
Crawford, we first consider whether chal-
providing
Oklahoma
the foundation to es
lenged evidence
“testimonial” in na-
was
tablish their authenticity.13
respect
With
11.We
itentiary packet,”
review de novo whether the district
ques-
we do not reach the
court admitted evidence in violation of the
tion of whether there would have
been
Lilly Virginia,
v.
Confrontation Clause.
527
Young
Confrontation Clause violation had
116, 136-37,
1887,
U.S.
S.Ct.
119
144
only
been the
foundational witness. Unlike
Nielsen,
(1999);
L.Ed.2d
v.
117
United States
public
803(8),
records admitted under Rule
Cir.2004).
581
regularly
activity
records of a
conducted
ad-
803(6) require
mitted under Rule
additional
pending
appeal,
While this
on
case was
Loyola-Dominguez,
foundation.
Supreme
U.S.
Court decided
v.
Crawford
("[T]he public
exception
1318
records
is one
Washington, rejecting the "indicia of reliabili-
hearsay exceptions
of the few
that does not
ty”
firmly
hearsay exception
or
rooted
test in
foundation.”).
require a
Because we resolve
inquiry
favor of an
into whether the evidence
presented
the issues
upon
in this case based
Although
testimonial.
had not
Crawford
public
provisions
records
for self-authenti-
yet been decided at the time that Weiland
cation,
902(4),
FED. R.
hearsay,
EVID.
trial,
apply
faced
we
it here on direct review.
803(8),
express
FED. R.EVID.
we need
no
314, 328,
Kentucky,
v.
U.S.
479
107
Griffith
S.Ct.
opinion on whether the Confrontation Clause
(1987).
Supreme Court U.S. C.J., (Rehnquist, concurring Crawford. S.Ct. 56, 124 S.Ct. judgment). We decline to so extend Crawford, or it interpret apply so layer, the respect to the second
With broadly. Secretary certifications Greene and Oklahoma, of the State of we of State Having concluded both the docu question. Although encounter novel ments in “penitentiary packet” and the com declined offer a Court Cratvford certifications Oklahoma records custo definition of testimonial evi
prehensive
Secretary
dian Greene and the
of State
“[wjhatever
dence,
stated that
the Court
nature,
were non-testimonial
we next
covers,
applies
it
at a mini
else the term
question
turn to the
whether these non-
prior testimony
preliminary
mum to
at a
might
testimonial
records
nevertheless
jury,
or at a for
hearing,
grand
before
have been admitted in violation of the Con
trial;
police interrogations.”
mer
and to
frontation Clause under Roberts. See Sa
1354;
see also
Id. at
S.Ct.
White
get,
thority
provid
signature,
such as
IV
ease,
Secretary of
in this
ed
State
Weiland contends
intro
are not testimonial in nature. See United
felony
duction of four Oklahoma
convic
Rueda-Rivera,
678,
States v.
396 F.3d
680
Cir.2005)
(5th
curiam).
only
required
prove
when
one was
tions
only
Not
are
(per
§ 922(g)(1)
status as a felon under
his
cataloguing
such certifications a “routine
him in
unfairly prejudiced
violation of Fed
matter,”
unambiguous
of an
factual
United
Bahena-Cardenas,
1067, eral Rule of Evidence 403. See United
411 F.3d
States v.
(9th
Breitkreutz,
(9th
688,
Cir.2005),
8 F.3d
692
requiring
but
the rec States v.
Cir.1993), abrogated
grounds by
on other
ords custodians and other officials from
States,
172,
Also,
Lloyd,
v. United
U.S.
981 F.2d at
Old
both
Chief
cf.
644,
(1997);
its discretion in admitting all four records Having determined that
of conviction. The four records were near
*16
district court abused its discretion in
ly
ad
identical:
judgment
produced
each
was
mitting all
convictions,
four Oklahoma
we
date,
on the same
in the same Oklahoma
turn to
question
the
court,
whether that error
district
for the same crime of Sec
States,
was harmless. Kotteakos v.
Degree
ond
United
Burglary. The documents
750, 764-65,
1239,
328 U.S.
66 S.Ct.
by
also authenticated
90
single
cer
(1946);
Alviso,
L.Ed. 1557
completed
tificate
United States v.
by records custodian
(9th Cir.1998).
1195,
152 F.3d
1199
Greene. Given the characteristics of
case,
records of
erroneous admission of
prior
conviction in
a
this
it is
conviction
unlikely
is
if
government
that one
harmless
“provid[es]
conviction would lack
a
flaw
Breitkreutz,
contained in
‘fair
the others.
assurance’ that the error did not sub
8
however,
stantially
F.3d at 692 (“Normally,
sway the
prior
verdict.” Id. (quoting
Hernandez,
1453).
felonies
by
are established
documentary
We hold
proof
dispute;
that’s hard to
proof that
this
more
standard was met in this case.
prior
very
Here,
felonies
probative
adds
little of
the district court
jury
instructed the
value and
on.”);
amounts to unfair piling
to consider the four Oklahoma convictions
14. We review for abuse
prove
of discretion a district
victions to
a defendant's status as a
court
multiple felony
decision to admit
Lloyd,
con-
felon.
1079
, —U.S.-, - n.
3,
determining
wheth
v. United
purpose
for the sole
States
1254,
3,
meaning
a felon within the
125 S.Ct.
1260 n.
161
205
er
L.Ed.2d
Weiland
Holler,
(2005).
922(g)(1).
States v.
Each Oklahoma
Information es-
Cir.2005).
But
411 F.3d
that
tablishes
Weiland committed an of-
Hernandez,
at 1453. Given
see
generic
fense that met
the elements of
that
had been
strong
evidence Weiland
burglary:
unprivileged
an “unlawful or
en-
convicted of at least one count of Second
into,
in,
try'
remaining
or
a building or
Degree Burglary Oklahoma
structure, with intent to commit a crime.”
possession
that
of firearms
he had been
Taylor,
495 U.S.
V
maintains that
Weiland
his 188-
the four
argues
month sentence under the Armed Career
Degree Burglary convic
Oklahoma Second
constitutionally
Act is
infirm
Criminal
on
tions should not have been used to enhance
theory that
it
jury
violates the
trial
his sentence under
the Armed Career
requirement of the Sixth Amendment. Al
Criminal Act because the
did
though
argu
Weiland did not raise this
was convicted of four
not establish
he
court,
ment in the district
we consider it
ge
crimes that included the elements of
presents
purely legal question
because it
reject
burglary.15
argument,
neric
this
We
fully
and the factual record below has been
ap
applying
categorical
the modified
developed.
Reyes-Alva
United States
Here,
proach.
government produced
rado,
Judgment
an Information and
and Sen
Guilty
argument
on
for each of the four
is foreclosed Al
tence
Plea
Weiland’s
States,
Degree Burglary
Oklahoma Second
convic mendarez-Torres v. United
224, 247,
previously approved
tions.
have
118 S.Ct.
140 L.Ed.2d
We
U.S.
(1998),
Supreme
use of
documents
in which the
Court
these exact Oklahoma
categorical approach,
may
held that a district court
enhance a
under the modified
Bonat,
convictions,
prior
on the basis of
United States v.
F.3d
sentence
(9th Cir.1997), and the United
even if the fact of those convictions was
1477-78
recently
jury beyond
our
not found
a reasonable
Supreme
States
Court
cited
*17
Shepard
accordingly
leave intact the
approach
approval,
Bonat with
doubt.16 We
J.,
ruling
concurring),
a
15. We review de
a district court
we are bound to follow
novo
controlling Supreme
precedent
it
government presented
Court
until
that
the
documents
Agostini
explicitly
that
generic
is
overruled
Court.
sufficient to establish the elements of
Felton,
203, 258,
1997,
117 S.Ct.
burglary
categorical ap-
v.
521 U.S.
under
modified
the
J.,
(1997)
Franklin,
(Ginsburg,
dissent-
ber of satisfactory explanation of those
out a destroys
questions, completely it the relia-
bility of Greene’s certification. Because certification, record, on this is demon- unreliable, it
strably purports the records certify not have been should admitted 902(4),
under Rules Wei-
land’s conviction should be reversed. CO., INC., a
MOONGATE WATER Utility,
New Mexico Public Plain
tiff-Counter-Defendant-Appellee,
DONA ANA MUTUAL DOMESTIC WA ASSOCIATION,
TER CONSUMERS
Defendant-Counter-Claimant-Appel
lant.
No. 04-2250. of Appeals,
United States Court
Tenth Circuit.
July