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U.S. v. Orozco-Mesa, No. 09-50192 (5-26-10) (Canby joined by Gould and Ikuta). In a 1326 prosecution, the government introduced a certificate of nonexistence of record (CNR) to show that there was no record that the defendant had sought or had been granted permission to reenter the US. The introduction of the CHR violate defendant's confrontation rights under Crawford and under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) (lab tech affidavit). The government concedes error, but argues that it was harmless. The 9th agrees. The 9th states that the defendant could have cross-examined other agents who had seen the A-file, and so would have been aware of any permission granted to reentry. Moreover, the defendant made a statement that he never sought such permission (a bad fact), and the defendant was found in the desert, leading one to assume that he knew he did not have permission to reenter. As for defendant's other argument, that the warrant of removal required confrontation, the 9th held that the warrant was non-testimonial, because it was an administrative record made not in anticipation of litigation and was a routine cataloguing of an unambiguous factual matter. The 9th also rejected issues on jury instruction for circumstantial evidence and the sentence.

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