U.S. v. Feliz

• Decision Date: 25 October 2006
• Docket Number: Docket No. 02-1665-cr.
• Citation: 467 F.3d 227
• Parties: UNITED STATES of America, Appellee, v. Miguel FELIZ, Jose Cortina Perezo, aka "Jochi", Michael Mungin, aka "Mike", aka "Robert Robinson", Robert Brown, aka "Crazy Rob", aka "Raj", Stanley Davis, aka "Kirk", Defendants, Jose Erbo, aka "Pinguita", aka "Tito", aka "Miguel Garcia", Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

467 F.3d 227

UNITED STATES of America, Appellee, v. Miguel FELIZ, Jose Cortina Perezo, aka "Jochi", Michael Mungin, aka "Mike", aka "Robert Robinson", Robert Brown, aka "Crazy Rob", aka "Raj", Stanley Davis, aka "Kirk", Defendants, Jose Erbo, aka "Pinguita", aka "Tito", aka "Miguel Garcia", Defendant-Appellant.

Docket No. 02-1665-cr.

United States Court of Appeals, Second Circuit.

Argued: July 14, 2005.

Decided: October 25, 2006.

Richard D. Willstatter, Green & Willstatter, White Plains, NY, for Defendant-Appellant.

Helen V. Cantwell, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, Karl Metzner, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Before: WESLEY, HALL, Circuit Judges, and TRAGER, District Judge.^*

HALL, Circuit Judge:

Defendant-appellant Jose Erbo appeals his conviction in the United States District Court for the Southern District of New York (Baer, J.), following a jury trial, for racketeering activities, 18 U.S.C. § 1962(c), conspiring to violate racketeering laws, in violation of 18 U.S.C. § 1962(d), conspiring to commit and committing murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a), using and carrying firearms in connection with the murders and conspiracies to commit murder, in violation of 18 U.S.C. § 924(c), and conspiring to distribute and possess with the intent to distribute powder cocaine and crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.

Erbo raises numerous challenges to his conviction and sentence, all but one of which we address in a summary order affirming the District Court. In this opinion we address Erbo's contention that the admission of autopsy reports against a defendant who has had no opportunity to cross-examine the author of the reports violates the defendant's rights under the Confrontation Clause as articulated by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because we conclude that autopsy reports are not testimonial within the meaning of Crawford and, thus, do not come within the ambit of the Confrontation Clause, we find no constitutional error in the admission of the autopsy reports.

BACKGROUND

From at least 1991 until 1997, Erbo led a violent cocaine distribution organization in New York City known as "Tito's Crew." Erbo and other members of Tito's Crew distributed large amounts of crack and cocaine and committed multiple murders. On February 4, 1999, the Government charged Erbo and others in a seventeen-count indictment, which included charges of racketeering as well as murder, and conspiracy to commit murder, in aid of racketeering. In September 1999, he was convicted on weapons charges in the Dominican Republic and sentenced to two-years' imprisonment. Upon his completion of that sentence in April 2001, the Dominican Republic surrendered Erbo to the United States pursuant to an extradition request. He subsequently pled not guilty, and trial commenced on May 9, 2002.

In order to establish the manner and cause of death for each of Erbo's victims in the charged homicides, the Government offered nine autopsy reports through the testimony of Dr. James Gill, an employee of the Office of the Chief Medical Examiner of New York ("Medical Examiner's Office"). Dr. Gill had not conducted any of the autopsies detailed in the reports. Erbo, therefore, objected to the admission of the reports on the grounds that they were inadmissible hearsay and violated his right to confrontation under the Sixth Amendment. The District Court admitted the autopsy reports over that objection, concluding that the Government had established a proper foundation for their admission as business records. Using the recorded observations in the autopsy reports, Dr. Gill testified before the jury as to the causes of death of the nine victims.

On May 23, 2002, the jury found Erbo guilty of the following: (i) one count of racketeering, in violation of 18 U.S.C. § 1962(c); (ii) one count of conspiracy to violate racketeering laws, in violation of 18 U.S.C. § 1962(d); (iii) three counts of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C § 1959(a)(5); (iv) three counts of murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and (2); (v) three counts of using and carrying a firearm in connection with a crime of violence, in violation of 18 U.S.C. §§ 924(c) and (2); and (vi) one count of conspiracy to distribute and possess with the intent to distribute powder cocaine and crack, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. The District Court sentenced Erbo principally to six consecutive terms of life imprisonment, to be followed by a mandatory and consecutive 45-year term of imprisonment.

In this opinion, we address Erbo's argument that the District Court erred in admitting the autopsy reports. Although Erbo does not challenge the District Court's determination that the autopsy reports were business records, he maintains that their admission violated his Sixth Amendment rights because he had no opportunity to cross-examine the medical examiners who prepared them. Well before Crawford was decided, we considered this precise question in United States v. Rosa, 11 F.3d 315, 333 (2d Cir.1993), and, guided in part by Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), we found no Confrontation Clause violation. Erbo contends, however, that neither the result nor the rationale of Rosa survives the Supreme Court's decision in Crawford. After Erbo appealed, but before briefs were submitted to this Court, Crawford held that the Confrontation Clause prohibits the admission of out-of-court, "testimonial" statements against a criminal defendant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. The Government argues Erbo suffered no Sixth Amendment violation because the autopsy reports, like all business records, are nontestimonial. Based in part on this Court's post-Crawford decision in United States v. Saget, 377 F.3d 223 (2d Cir.2004), Erbo counters that the District Court's admission of the autopsy reports violated his right to confrontation because the reports, regardless of their classification as business records, contain testimonial statements and he had no opportunity to cross-examine the medical examiners who prepared them.¹ We hold that the sole relevant inquiry under the Confrontation Clause is whether the autopsy reports are testimonial, and because we hold they are not, the District Court properly admitted them into evidence.

DISCUSSION

I. The Confrontation Clause Analysis, Before and After Crawford

The Confrontation Clause states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. Prior to Crawford, standards of reliability demarcated the boundaries of the Confrontation Clause's protections. Specifically, in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court held that an out-of-court statement of an unavailable hearsay declarant is constitutionally inadmissible unless it "bears adequate indicia of reliability." Id. at 66, 100 S.Ct. 2531 (internal quotation marks omitted). It went on to hold that "[t]o meet that test, evidence must either fall within a `firmly rooted hearsay exception' or bear `particularized guarantees of trustworthiness.'" Crawford, 541 U.S. at 40, 124 S.Ct. 1354 (quoting Roberts, 448 U.S. at 66, 100 S.Ct. 2531). Thus, under the Roberts line of cases, "[a]ny out-of-court statement was constitutionally admissible so long as it fell within an exception to the hearsay rule or, if that exception was not firmly rooted, the court found that the statement was likely to be reliable." Saget, 377 F.3d at 226.

Crawford, however, "substantially alter[ed] the ... existing Confrontation Clause jurisprudence," Saget, 377 F.3d at 226, announcing a per se bar on the admission of a class of out-of-court statements the Supreme Court labeled "testimonial" unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant regarding the statement. Crawford, 541 U.S. at 59, 68, 124 S.Ct. 1354; United States v. Stewart, 433 F.3d 273, 290 (2d Cir.2006); United States v. Logan, 419 F.3d 172, 177 (2d Cir.2005). Crawford's per se bar applies "regardless of whether [the testimonial] statement falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness." Saget, 377 F.3d at 226 (citing Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354). The Court reasoned that the Framers—at least where the out-of-court statements are testimonial—did not intend to "leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of `reliability.'" Crawford, 541 U.S. at 61, 124 S.Ct. 1354; see also id. at 62, 124 S.Ct. 1354 ("Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty."). Rather, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S.Ct. 1354.

This being said, an open question remains in light of pre-Crawford analysis of the admissibility of statements that are determined to be nontestimonial. In the wake of Crawford this Court assumed, and several of our sister circuits held, that the Roberts reliability analysis continued to govern the admissibility of nontestimonial statements. See Summers v. Dretke, 431 F.3d 861, 877 (5th Cir.2005); United States v. Hinton, 423 F.3d 355, 358 n. 1 (3d Cir.2005); United States v. Brun, 416 F.3d 703, 707...