Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05 CR 241- Charles N. Clevert, Jr., Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
ARGUED SEPTEMBER 26, 2007
Before MANION, EVANS, and SYKES,Circuit Judges.
This is an appeal from a conviction for illegal re-entry into the United States following deportation. See 8 U.S.C. § 1326. It presents the question, under the Sixth Amendment's Confrontation Clause, whether the government may use at trial the contents of the defendant's alien-registration file (his "A-file")- specifically, a warrant of deportation and a "certificate of nonexistence of record"-to prove its case. We conclude that these A-file records are non-testimonial business records not subject to the requirements of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington,547 U.S. 813 (2006).
We are also asked to review the district court's denial of defendant Franklin Burgos's request for new counsel. That request came on the morning of trial, and Burgos had already received one substitution of appointed counsel. The district judge patiently questioned Burgos about the matter, noted the prior substitution of counsel and the court's readiness to proceed, and permitted a lengthy recess for counsel and client to confer. The judge then carefully explained Burgos's plea and trial options, and Burgos eventually waived the jury and proceeded to a court trial, represented by his then-present counsel. Whether this was an implicit withdrawal of the request for new counsel or an implicit denial of it, we see no abuse of discretion by the court and affirm Burgos's conviction.
Milwaukee police arrested Franklin Burgos in 2005 and reported him to federal authorities when they suspected that his presence in this country, as a previously deported alien, was unlawful. Burgos is a native and citizen of the Dominican Republic who had once resided lawfully in this country as a resident alien. But he acquired two criminal convictions-one for burglary in New York and another for possession of cocaine with intent to deliver in New Jersey-and thus relinquished the privilege of remaining here. Burgos was deported in 1995 after serving his sentences for these crimes, and when he attempted to re-enter the country illegally through California, he was deported again in 1998. At some point thereafter he returned. His arrest in Milwaukee in 2005 was the genesis of this prosecution.
Burgos was charged in a one-count indictment with illegal re-entry as an aggravated felon in violation of 8 U.S.C. § 1326(a) and (b). His first appointed counsel moved to withdraw, citing communication problems with his client. Judge Clevert granted this motion. On the morning of trial, Burgos's second appointed counsel announced that Burgos wanted a new lawyer. The judge asked Burgos and his counsel to explain the reason for the request, and then advised Burgos that his present counsel "is your second attorney in this case, and we are prepared to go forward with the jury trial today." The judge said he would ask an attorney on the staff of the Federal Defender to confer with Burgos and his counsel about "the matters that seem to be troubling you at this time." A recess was taken for that purpose, and when court reconvened an hour and a half later, Burgos's attorney advised the court that Burgos would prefer new counsel and an adjournment, but if the court decided that the trial would proceed that day, "Mr. Burgos is accepting that and wants me here as counsel." Judge Clevert then questioned Burgos and at length explained his options to plead guilty or proceed with a jury or court trial. After a brief conference between Burgos and his counsel, Burgos opted for a court trial and entered a jury waiver.
To convict, the government was required to prove three facts: that Burgos was an alien; that he was deported; and that he reentered the country without permission from the Attorney General. The latter two requirements were proved during the court trial by two documents from Burgos's A-file: a warrant of deportation, which attested to the fact of his prior deportations, and a "certificate of nonexistence of record" (a "CNR"), which certified that Burgos's file contained no record that the Attorney General had granted permission for Burgos to return to this country. Burgos stipulated to his prior convictions and also that he did not have consent from the Attorney General to re-enter the United States. He objected to admission of the two documents from his A-file, but in light of his stipulation that he did not have consent to re-enter, later agreed to the admission of the CNR. The district court found Burgos guilty and imposed a below-guidelines sentence of 57 months.
A. Confrontation Clause Challenge to Admission of A-file Contents
On appeal Burgos renews his challenge to the admission of the warrant of deportation and CNR from his A-file.*fn1 We review evidentiary rulings implicating a defendant's Sixth Amendment right to confrontation de novo. United States v. Ellis, 460 F.3d 920, 923 (7th Cir. 2006).
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." As the Supreme Court explained in Crawford, the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." 541 U.S. at 53-54. The critical inquiry is whether the statements in question are "testimonial"-because, as the Court held, it is only that type of statement that makes a declarant a "witness" under the Confrontation Clause. Id. at 51. "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis,547 U.S. at 821.
Crawford did not attempt to provide a comprehensive definition of "testimonial statements," relying instead on the Framers' conception of the right to confront one's accusers that existed at common law and on their fundamental concern with the civil law's practice of ex parte examinations. Crawford, 541 U.S. at 51-52. The Court in Crawford held that "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination," explaining that the term "testimonial" applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68. The Court noted, however, that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial-for example, ...