right to confrontation and also the rules of evidence in particular the law enforcement exclusion and we know the issue is whether or not the document is testimonial in crawford of course the supreme court emphasized that we looked at whether it's objective lee reasonable to believe that the statement would be available for criminal trial in davis the supreme court elaborated on that and emphasize that we look at whether the primary purpose of the interrogation using interrogation usually loosely it isn't a formal interrogation is to establish or prove past events that are quote potentially relevant to later criminal prosecution have taken the liberty of distributing a visual aid in this court in this case which is exhibit a and it's highlighted as i'm going to make reference to it this is one of the five i to thirteen's that were admitted in the trial and i think even looking at the document the court can see that this is in fact a document that the primary purpose is potentially relevant to a criminal trial and i say that for a number of reasons number of one although it's redacted so that the jury wouldn't see if it is an interview of an it inadmissible or deportable alien it's not an interview of everybody who comes into the united states but even most significantly the instructions to the agent filling it out in the narrative section are that the agent should set forth the details including the time place manner of entry attempted entry or other entry and the elements which establish in ministry to and or a criminal violation in other words this is a document prepared specifically to be used either for an  administrative or also a criminal prosecution and in fact where it says entry without inspection from mexico that is an admission of all of the elements of a misdemeanor offense that the person is an alien and that person has entered without inspection and this is the document being used to prosecute tens of thousands of individuals every year in this country this is not like the warrant of deportation which we did not object to and which the court has repeatedly indicated both before and after crawford that that document both is not within the law enforcement exception and not subject to the th amendment and i'm going to focus on the th amendment because the interests are similar the th amendment trumps the rules of evidence so even if it was in miscible under the rules of evidence the th amendment wins but the bottom line is the  issues are similar and the difference is and i think the courts analysis in case sata which was the precursor for a case dealing with the warrants of deportation demonstrate why those documents are different than  warrant of deportation is prepared by the agent watching the ailing and be deported it is an eis on observation it is prepared contemporaneously it in this court's word an objective observation of a mechanical fact all the agent is doing is saying i have seen that person cross the river or get on the plane that is completely different from an i two hundred and thirty which is a report of an agent's interview of someone else now what's interesting is normally the eye to thirteen issue cars come up the th and the th circuit where it's an interview of other people who are allegedly transported or smuggled by the defendant so the issue is whether or not that i to thirteen can be admitted to prove th people smuggled are allianz and as i've said in my briefs the only court to say yes is the th circuit the th circuit said it is not a violation of confrontation but they said it's not it's subject to hearsay rules because it is not the agent observing mechanically an object of lee what happens it is the agent writing of or poor of an interview of what someone else said so it is clearly not the same as the warrant of deportation or the other documents which involve contemporaneous objective information the warrant of deportation also is clearly different under the davis test davis actually involved two cases and the supreme court emphasized that where the person is making statements about an ongoing emergency and it's contemporaneous and that was davis it's not testimonial but the court also recognized that something that might not be testimonial can evolve into a testimonial if we then transition to talking about other facts that might be proved to be issues to prove in a case and that's what we get too far and to your th amendment argument yes there are five of these documents the one as i understand it there are five that are at issue in this case and the four prior ones are relative to for prior instances of deportation is that correct and what would that actually make sure i'm clear on the circumstances of the previous four forms one is that the last one is pertinent to this instance where he's prosecuted is that correct that's correct ok so there's four others and then presumably based on those four others there are deportations one is a deportation and then the next three are illegal r they're all deportations one of them also resulted in a misdemeanor prosecution for entry without inspection ok all right and as part of those prosecutions a finding of fact would be made that he his birthplace is in this case i believe in mexico yes you're ok so that's that's a fact that has been established who are times previously is that correct i may address that or warrant that the deportation order and the four reinstituted orders were admitted into evidence and the court instructed the jury correctly that that finding of fact is insufficient in a criminal case to establish that he was from mexico and it relied on a th circuit case because that would mean the different standards of proof so it is true that there is been a finding of fact but those deportation orders are insufficient in and of themselves to establish beyond a reasonable doubt in a criminal prosecution that the defendant was from mexico or and so and in fact the jury was instructed to that effect ok instructed part you have no beef then with the jury instruction you know the judge pretty much gave the instruction we asked for on that issue and in fact the case was really tried on the was tried because we were raising the perera issue which is no longer an issue so a lot of the litigation had to do with the prayer issue so the evidence of whether he's from mexico is his statement or his alleged statement to the agent and another concern and we talked about in the case ariano been well us which of course dealt with the th amendment issue in the miranda issue because as i indicated there are similar because the issue in that this is the government in this case kept saying it's mere booking information and it really isn't even if you look at the booking information cases the booking information is extremely narrow it literally is name age date of birth it would not include as relevant in this case place of birth the supreme court case munoz versus pennsylvania said when he when they asked what is the date of your th birthday that was not booking information and in this case in beer hanmer a no which is this circuit's case when they asked where have you lived before that was not the information because it was designed to elicit incriminating certainly knows that his questions about where is he coming from and how did he enter that those questions are designed to elicit incriminating information i also mention those cases because what's bizarre is that if eye to thirteen is admissible particularly without the agent this court has lines of cases not only ariano been well us which has to do with the circumstances of the interrogation of the defendant but cases involving the statements of the aliens where the government has sought to introduce the depositions of those aliens th amendment clearly applies no dispute that it's prepared for litigation but more importantly that there's a right to confrontation  admissible whether it's an interview of the defendant or the witness then there's not even a need for depositions there is not even a need for ariano bun well us interrogate questioning because apparently what the  government did in this case is here's the report of what the agent interviewed there's no analysis of the circumstances there's no analysis of whether miranda applied and obviously an ariano ultimately the court held it did not there's no analysis from the agent about what the circumstances are of the interview and this is again it comes down to is it objective is it contemporaneous or is it recording what someone else said and in the context of the interview whether it's of an alien or even more significantly of the defendant it is critical to look into what did the defendant really say did he say he was from mexico could the agent communicate accurately with the defendant could the caon did the agent accurately recite what was in here you only have the st page of this document which is really a four page document and again that's because at trial we kept out things like criminal history and prior deportations but those factors in the document further demonstrate this is not a booking form this is a form prepared by an agent essentially has a dual purpose role as an immigration deportation officer or is a person who is referring to individuals for criminal prosecution and what is doing he takes notes and he prepares this report after the fact which was an issue in davis or in hammond the other case and he writes down what she recalls of what in this case the defendant said or in other cases what witnesses said about where they were from and the circumstances of their apprehension so and i note that karr by the th circuit case i think it's current by zero which is the only case that specifically is on point and we submit that it is simply wrong  of all that relies on cases that are no longer good law or in a political it applies on this it relies on this case rented here gonzales as the government relies on many of these cases in its brief which is an immigration case the th amendment doesn't apply the rules of evidence don't apply and in fact that case was decided before crawford and has all of the reliability language that may be relevant to due process in an immigration case but is no longer a factor in the th amendment analysis which is what we are talking about here and the th circuit simply says it's an immigration document and therefore it's not subject to the th amendment or the law enforcement exception  history which is a pre crime for a case in which was overruled by this court in martina's rios recognizes that in fact there are immigration documents that cannot be presented in a criminal trial and i would refer the court to the perhaps the most significant case from this court which is drone colored caldera which sets forth it's not enough that it's an immigration document it is the government's burden to establish the circumstances of the preparation of that document which the government did not do at all in this case and it is the government's burden to establish that it is not a testimonial document and again what is unusual in this case as opposed to most immigration prosecutions is that agent didn't even testify we're not here deciding whether or not the agent could say i prepared this report and then the report is admissible i would undoubtedly argue it's not but at least we would have had the agent to say the circumstances of the preparation of the report and an accord no your honor but only one court specifically has rejected it which is the th circuit and which did not the th the th circuit said it's hearsay the th circuit said the ones are going to disagree that it was confrontation they didn't really advise the document but what they said is not essential to the holding because the th circuit said it it doesn't it's not may please the court catherine pick on behalf of the united states the district court properly determined that the st pages of the i teach thirteen to report were invisible under the public record exception because the st pages only contained and in big u s factual information and was recorded for the primary purpose to document an encounter with the defendant the evidence is not testimonial and there is no th amendment confrontation reyes versus holder explained that i too thirteen's are essentially a recorded recollection of a conversation with an alien and it is generally admissible christine that i to thirteen's are admissible under the public record exception the biographical information on the st page is non testimonial and therefore the confrontation clause does not does not admission as evidence and crawford the supreme court stated that statements are testimonial in the circumstances objective indicate that the primary purpose of the statement is to establish or pro past potentially relevant past events potentially relevant to criminal later criminal prosecution here that i to thirteen's are generated by immigration agents for the primary purpose to track the entry of aliens in the united states again christine if you could maybe maybe dig a little deeper on that what is the procedure  that triggers the use of the document how often is it used with what frequency and in other words it becomes a business record based on your argument it is it is a business record of the government how often are they i know  opponent mentioned that these were not the ordinary course of business where everyone was they use this form to interview everyone so if you could maybe walk us through just take a nd to walk us through how the two thirteen is st implicated how it is filled out under what circumstances and then how it is how does it ultimately get to become a business record by way of storage person or i'm happy to explain so th and it documents their account their country of origin where the nationality of their parent we are they were found there you know date of birth height and weight then at that time they're trying to determine if it's someone who's here so they fill these reports out and it becomes part of the a file of the alien file which is known as the a file is there a determination made prior to that before we take out our to thirteen is there a determination made before that that a person is inadmissible or here illegally and other words how do you get to the point of and i think this kind of goes to the issue that's being raised for a trial if the perp proof of the birth place that the person is born in a foreign country and then we get to the issue of what right is the person physically on this side of the border so if so who makes that determination to use the two hundred and thirteen is it just used as a matter of course when someone is apprehended and cannot doesn't know if they're deportable yet though right well they're determining whether they are and they in the alien will say no i'm i'm a mexican citizen and if they're so they make that st i two hundred and thirteen report it becomes a part of the record every other time that they come across this person again they fill out the same exact report and it's filled out regardless of whether it's later on you said a criminal prosecution the primary purpose is to trot it miscible to found in jail and so if they have if they ask him about you know they ask him what's your name what's your country of origin and if they say it is mexico they'll go in the see if the defendant has an alien file and if they do  yes your honor it is it's used to keep up with the flow to track to see who's in your who's not the primary purpose of border agents purposed is to keep deportable inadmissible indians out of the country so they use this  disagree on or if the purpose the primary purpose is to try and every an encounter with an individual it is completed we guard close to criminal prosecution more often than not in this case there's five of them this is the let me go back to one of the things you said i'm still i still want to be clear on when the border agent or officer takes out the i two hundred and thirteen and begins to fill it out in to take in bathrooms five people among other things name that type of thing place of birth and if a person among those five says i was born in such and such a town in mexico then the agent says ok well i'm going to have to they're filled out and they're felt like i said regardless of criminal prosecution this in this case the defendant had five of them or they filled out if he says i was born in mexico but i have an idea or a green card or some other type of justification for being in the country does that also get stored in the computer as a business record i'm not entirely sure if they do that if they do have this you know a green card if they're i'm not sure i don't know if they go check the database and i'm not i don't know the answer to i guess the point of michael almost all the questions i've asked you is to get into the definition of a business record because the form itself looks like a business record it's a preprinted form it's got a number as most things and with the government have it's got an official number and it's got a lot of blanks in a signature line for somebody who has authority and then it gets stored somewhere which is another industry a but a  business record but there are other factors that come into play and i'm just inquiring because i want to test your argument if you want to elaborate on it fine if not i want to test your argument as to how this meets that definition the general definition of  business record sure your honor and yes it is it's a routine it's done for their initiative purposes you know department of homeland security eyes their purpose is to prevent an in stream coming into our country and so the way to track everyone who comes into our country is they use these forms and it's just part of their breed t and ministry of purpose they come they fill out the form and they put it in the alien file so regulation or a source document that triggers the creation of the thirteen in other words that is in the promulgation what you not clear you know is what the source of knowledge of the agent is that that's the purpose for which the form is to be used in the manner that you're saying or whether you it's being business they're part of the union file i don't believe she testified to what code but like i said i'd be happy to supplement things out so that just doesn't make or break you know the case but i just keeps coming up because we have a lot of cases unpublished cases and others in which to thirteen has come up you know it's a business record but shift gears because obviously the primer thrust is a six minute confrontation primary of the supreme court has laid out the primary purpose test of whether determining something is testimonial and here is the primary purpose of generating these two thirteenth's is not a criminal prosecution it's not use for an out of cases that hold that the warrant of removal and deportation are not aren't on testimonial in united states versus garcia this court held that warrants of removals are not testimony and they're all part of like i said to a file the primary purpose  and yes and so here these are they don't meet the standard of what testimony documents are that they're just part of just similar to the words of her were more removal and other documents the same reasons and even add if this port were to find that there was an error there still that we can also prove to you inge alien age in the following documents we had the warrant of removal we had their certificate very trial specifically there was a jury charge that was tailored specifically to embrace the concerns here so was that an acknowledgement by the government that there was potentially a problem with the routine way moon st of all let me clarify this is not the business record in the courts upheld it's not a business record i think it's in jerome and if not it's in the th circuit case it has if it if it's under the rules of evidence it's under the government record it is prepared for litigation whether or not or immigration or whether or not it's criminal secondly when judge angle heart you are asking how this is prepared that is exactly the problem in this case even in  agent who prepared the documents testified about the way he prepared them and what he did and how he prepared them there is nothing in this record to explain how they're prepared now i like the government can talk to you about how they've prepared how they're prepared because i've represented set thousands of these people they agent takes notes the agents prepares this report the report is a four page report that is not just oh you're from mexico it includes criminal history prior deportation whether they're in again it contains all kinds of information and if there is one piece of this report that should demonstrate that it certainly can be testimonial in my argument is it certainly depends if the government is to win in this case the court must hold the eye to thirteen automatically like a warrant of deportation is not testimonial and i don't see how the court can who needs and who needs anybody and the supreme court said look at the document in the documents that is for criminal prosecution and this document says find out the elements for it ministre do or criminal prosecution and it direct agent to specifically ask for the elements that can be used in criminal prosecution it is whether it's potentially relevant to address judge higginbotham's concern of course many documents are prepared that are that could be used in a criminal trial but the warrant of deportation is different for two reasons st all the primary purpose is making sure the alien leaks that's the purpose does it matter in a criminal trial yes but that's what the agents looking at an agent is not making any judgment call whatsoever he is he or she is watching the alien leave the united states this is not unambiguous information also  the primary purpose is different where here the person interviewing the eight the alien is looking at the possibility of a criminal prosecution that's not the issue for the agent certainly it's like when this guy comes back he could be interviewed and the idea that the question asked of the of the defendant is not an unambiguous question like whether you cross the river to boil your argument down to say that any time the government wishes to use it i to thirteen in a criminal prosecution the person whose signature who actually filled it out and signed it must testify unless it was of course it's waived  is that a fair statement that satisfies crawford in your opinion i would say at a minimum i probably would be here arguing that i to thirteen shouldn't come in but i certainly am my argument is that to let go i mean as as a court recognized these interviews are dual purpose and they relied on the supreme court case and tax cases most tax cases don't result in criminal prosecution but any time an i r s agent is talking to somebody there could be criminal liability  coroner's report is not necessarily prepared for a homicide case but the coroner's report cannot come in in a criminal case without the coroner testifying so that is exactly it judging the angle part in this case we don't even know how the documents were prepared we don't know what the agent was thinking we don't know if the defendant was in custody for miranda purposes we don't know if he was caught on the border or in the restaurant we don't know anything about the preparation all we have is what the agent wrote down and that is critical supreme court referred to a concern about officers of the government preparing reports no less