U.S. v. Causevic

• Decision Date: 22 April 2011
• Docket Number: No. 09–3611.,09–3611.
• Citation: 636 F.3d 998
• Parties: UNITED STATES of America, Appellee,v.Rasim CAUSEVIC, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

636 F.3d 998

UNITED STATES of America, Appellee,

v.Rasim CAUSEVIC, Appellant.

No. 09–3611.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 22, 2010.Filed: April 22, 2011.

Timothy S. Ross–Boon, AFPD, argued, Des Moines, IA, for appellant.John E. Beamer, AUSA, argued, Des Moines, IA, for appellee.Before SHEPHERD, BRIGHT, and ARNOLD, Circuit Judges.ARNOLD, Circuit Judge.

A jury convicted Rasim Causevic of one count of making a materially false statement, see 18 U.S.C. § 1001(a)(2), and one count of making a materially false statement in an immigration matter, see 18 U.S.C.A. § 1546(a). Mr. Causevic appealed, contending that he was denied his right to be confronted with the witnesses against him, see U.S. Const. amend. VI, and challenging the sufficiency of the evidence. Because we conclude that Mr. Causevic's confrontation rights were violated, we reverse his convictions and remand for further proceedings.

I.

Since Mr. Causevic challenges the sufficiency of the evidence, we state the facts favorably to the guilty verdict. Mr. Causevic and his sister, Fadila Okanovic, entered the United States as Bosnian refugees from the former Yugoslavia during the civil war in that country. After a refugee has been in this country for a year, he or she may apply for permanent resident status, which, in turn, may eventually lead to citizenship. About ten years after Mr. Causevic arrived, he filed an application for permanent-resident status (also known as a Form I–485) but did not complete the process. He filed another Form I–485 three years later. The Citizen and Immigration Service (CIS) determines whether to grant applications for permanent residency, and, when conducting a routine background check, the CIS learned that Mr. Causevic might be sought in his home country on a murder charge. The CIS notified Immigration and Customs Enforcement (ICE), which obtained a report from the International Police (an Interpol want) that a “Rasim Causevic” was wanted in Bosnia–Herzegovina for murder, that the crime had occurred during the civil war in the former Yugoslavia, and that it involved the killing of a soldier in “Rasim Causevic's” unit.

CIS Officers John Stewart and Ron Mace then interviewed Mr. Causevic to determine whether he was the person named in the Interpol want. They conducted the interview in English, and Mr. Causevic asked his sister, who accompanied him, to assist him twice: once to spell the name of his hometown and another time to explain his right to counsel. The officers began by questioning Mr. Causevic about his answer of “no” to a question on his Form I–485 asking whether he had “ever ... been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law” other than traffic laws. He confirmed that he had answered “no” to that question on the application and stated that his answer was still “no.” Officer Stewart then asked Mr. Causevic whether he had ever killed anyone while he was in the army or militia in the former Yugoslavia. He denied having done so, though he said that he had shot long distances while he was a soldier and did not always know whether he had hit anyone. Finally, the officer asked him whether he had killed anyone at any time before entering the United States, and again his answer was “no.” After completing the interview, Officer Stewart prepared a written statement that included Mr. Causevic's answers during the interview and Officer Stewart read the document to him. Mr. Causevic signed it under oath and in the presence of Officer Stewart and Ms. Okanovic.

Immediately afterward, two agents from ICE, which enforces immigration and customs laws, interviewed Mr. Causevic without his sister present. Mr. Causevic was again asked whether he had ever been arrested and whether he had killed anyone while in the armed services or before coming to the United States, and he responded in the negative once more. When the agents showed Mr. Causevic the Interpol want, he confirmed that he was the person named in the document but denied committing the crime. The agents then asked Ms. Okanovic to come into the interview room, telling her that they thought her brother might be more “forthcoming” if she were present; she came in and told her brother to tell the truth, and, as she put it, he “told them everything.” When asked whether he had committed any crimes, Mr. Causevic said “yes,” that in 1995, “I shot in body six bullets,” and that the victim “died after about two minutes.” Mr. Causevic asserted that did not know what else to do because the man was coming toward him with a knife. He added that he was taken from the scene, “put ... downtown for three days,” and then transferred to a unit with about three hundred other people until the jail was unlocked and everyone left.

Mr. Causevic was charged with six counts, all of which related to making false statements. The jury acquitted him on the first four counts, which were based on allegations that he falsely stated in his original and second Form I–485 that “he had never been arrested.” But the jury returned a guilty verdict on Counts V and VI. Each of these two counts alleged that on the day he was interviewed, Mr. Causevic falsely stated that he had never been arrested, had never killed anyone while in the armed forces in the former Yugoslavia, and had never killed anyone before coming to the United States. The counts differed only in that Count V charged him with violating § 1001(a)(2), a general prohibition on false statements in federal matters, and Count VI charged him with violating § 1546(a), which pertains specifically to immigration proceedings.

During trial, Mr. Causevic objected to the admission of a Bosnian judgment convicting him of murder following a trial in absentia; the judgment (translated into English) recited that Mr. Causevic had committed murder by firing six bullets at a man at close range while they were serving in what it called an independent army of West Bosnia. The district court concluded that the judgment was not testimonial and thus its admission would not violate Mr. Causevic's right to confront the witnesses against him.

II.

Mr. Causevic maintains that the district court erred in admitting the Bosnian judgment of conviction because its admission violated the Confrontation Clause, which states, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. We review the district court's rejection of this contention de novo. United States v. Holmes, 620 F.3d 836, 840 (8th Cir.2010).

Mr. Causevic challenges the government's use of the judgment as substantive proof of an element of the charged crimes. In particular, he contends that his confrontation rights were violated when the government introduced the Bosnian murder conviction as proof that he killed someone, which he had denied. The government acknowledges that it relied on the conviction to show, contrary to Mr. Causevic's CIS interview and related written statement, that he had fatally shot a man before coming to the United States.

Under the Sixth Amendment, a defendant has the right to confront those who “bear testimony” against him. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Therefore a witness may not give “testimony against a defendant” without appearing at trial, unless that witness is unavailable and the defendant had previously had an opportunity for cross-examination. Melendez–Diaz v. Massachusetts, ––– U.S. ––––, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009). Although the Court in Crawford declined to define the term “testimonial,” it gave examples of documents that usually fall within the “core class of testimonial statements” covered by the Confrontation Clause, including “affidavits, custodial examinations, [and] prior testimony that the defendant was unable to cross-examine.” Id. at 51–52, 124 S.Ct. 1354 (internal quotation marks and citations omitted); see Melendez–Diaz, 129 S.Ct. at 2531.

At first blush, it seems that the Bosnian judgment, as a public record, differs significantly from Crawford 's examples of testimonial statements, as well as the analysts' reports at issue in Melendez–Diaz, which the Court emphasized were created specifically for use at the defendant's trial for cocaine distribution, and identical to testimony that the analysts would have given had the government called them as witnesses. And the Ninth Circuit, in a case that the government relies on, has stated that “it is undisputed that public records, such as judgments, are not themselves testimonial [and] do not fall within the prohibition established ... in Crawford.” United States v. Weiland, 420 F.3d 1062, 1076–77 (9th Cir.2005), cert. denied, 547 U.S. 1114, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006). In that case, the defendant had appealed his conviction for being a felon in possession of a firearm, arguing that he had a Sixth Amendment right to cross-examine those attesting to the authenticity of his prior convictions. Id. at 1066, 1076. We agree with the Weiland court that criminal judgments may be admitted to show that a defendant has a prior conviction without violating the Confrontation Clause. See id. at 1078–79. But the defendant here challenges the government's use of a conviction for a significantly different purpose, namely, to show that he in fact committed the crime of which he was convicted. This is a difference that makes for a legal distinction.

The Supreme Court long ago addressed this distinction in Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), and it has cited Kirby favorably in two post- Crawford cases: Melendez–Diaz, 129 S.Ct. at 2534, and Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Kirby, the defendant was charged with receiving property that had been stolen from the United States, and his indictment alleged, inter...