In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-4091

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANKLIN BURGOS, also known as

FRANKLIN BURGOS-MARTINEZ, 

also known as ALFREDO DE JESUS, 

also known as RICHARD LEBRON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05 CR 241—Charles N. Clevert, Jr., Judge.

____________

ARGUED SEPTEMBER 26, 2007—DECIDED AUGUST 22, 2008

____________

Before MANION, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. This is an appeal from a conviction for illegal reentry into the United States following

deportation. See 8 U.S.C. § 1326. It presents the question,

under the Sixth Amendment’s Confrontation Clause,
2 No. 06-4091

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 nontestimonial 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.

I. Background

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
No. 06-4091 3

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

reenter 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 reentry 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
4 No. 06-4091

We note, however, that Burgos apparently waived the

1

(continued...)

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 reenter 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

reenter, later agreed to the admission of the CNR. The

district court found Burgos guilty and imposed a belowguidelines sentence of 57 months. 

II. Discussion

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. We 1
No. 06-4091 5

(...continued) 1

argument regarding the admissibility of the CNR. Although

he initially challenged the admission of the warrant of

deportation and the CNR, he abandoned his challenge to

the admission of the CNR after stipulating that he did

not have consent to reenter the United States.

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 funda-
6 No. 06-4091

mental 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, business records or statements in

furtherance of a conspiracy,” id. at 56; these are not

subject to the requirements of the Confrontation Clause

but only to the evidentiary rules governing the admission of hearsay.

The Court clarified the definition of “testimonial” in

Davis. There, the Court considered two cases, one involving a victim’s statements to a 911 operator reporting an

assault and identifying her former boyfriend as her assailant, and the other involving a victim’s statements to the

police after a domestic disturbance describing her husband’s assaultive conduct during an argument. Davis, 547

U.S. at 817-21. The Court held that the statements made

to the 911 operator during the ongoing emergency were

nontestimonial, while the statements made to the police

after the emergency had ceased were testimonial. Id. at 827-

32. Without attempting to classify “all conceivable statements—or even all conceivable statements in response to

police interrogation,” the Court drew the following

distinction: statements to police are nontestimonial “when
No. 06-4091 7

We have also suggested, in the context of crime laboratory 2

reports, that raw data from lab instruments are

nontestimonial under Crawford and Davis, while the interpretation of those data could be testimonial. United States v.

Moon, 512 F.3d 359, 361-62 (7th Cir. 2008) (noting the Confrontation Clause issue but affirming the admission of the

lab report when it was received under Rule 703 of the

Federal Rules of Evidence through the testimony of an expert

who did not conduct the original lab tests). We note that

the Supreme Court will soon address the question of the

testimonial character of laboratory reports used in criminal

(continued...)

made in the course of police interrogation under circumstances objectively indicating that the primary purpose . . .

is to enable police assistance to meet an ongoing emergency”; they are testimonial “when the circumstances

objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is

to establish or prove past events potentially relevant to

later criminal prosecution.” Id. at 822.

In a different context we have noted Crawford’s reference

to business records as an example of hearsay statements

that are “by their nature” nontestimonial and therefore

not subject to the requirements of the Confrontation

Clause. See Ellis, 460 F.3d at 924. Ellis concerned the

admissibility of hospital laboratory records recording the

results of blood and urine tests. Id. at 922. Ellis analogized

to a line of case law from other circuits holding—also postCrawford—that an alien’s CNR is a nontestimonial business record. Id. at 925-26. 2
8 No. 06-4091

(...continued) 2

prosecutions. It recently issued a writ of certiorari to consider whether a forensic analyst’s laboratory report is

testimonial under Crawford. Melendez-Diaz v. Massachusetts,

128 S. Ct. 1647 (2008).

The consensus on this point has only grown stronger

since our decision in Ellis. The reported cases from the

other circuits that have considered the question are

unanimous in holding that an alien’s warrant of deportation and CNR are nontestimonial business records not

subject to the requirements of the Confrontation Clause

under Crawford. See United States v. Torres-Villalobos, 477

F.3d 978, 982-84 (8th Cir. 2007) (warrant of deportation);

United States v. García, 452 F.3d 36, 41-42 (1st Cir. 2006)

(same); United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th

Cir. 2006) (same); United States v. Cantellano, 430 F.3d 1142,

1144-46 (11th Cir. 2005) (same); United States v. BahenaCardenas, 411 F.3d 1067, 1074-75 (9th Cir. 2005) (same).

And see United States v. Urqhart, 469 F.3d 745, 748-49 (8th

Cir. 2006) (CNR); United States v. Cervantes-Flores, 421 F.3d

825, 830-34 (9th Cir. 2005) (same); United States v. RuedaRivera, 396 F.3d 678, 680 (5th Cir. 2005) (same).

We now conclude, in accord with this consensus, that an

alien’s warrant of deportation and CNR are nontestimonial

business records not subject to the requirements of the

Confrontation Clause under Crawford and Davis. These

documents have many attributes in common with

business records. A warrant of deportation records the

movement of a deported alien; the signing witness
No. 06-4091 9

Burgos cites an unpublished decision of the Tenth Circuit, 3

United States v. Salinas-Valenciano, 220 F. App’x 879 (10th Cir.

2007), but that decision does not deserve much weight.

Although the court held that a CNR was testimonial, it did

so by noting its reluctance to resolve the issue in the government’s favor when the government offered no substantive argument to the contrary. In addition, the Tenth Circuit,

in another unpublished decision, recently held that it was

not plain error to admit a CNR over a Confrontation Clause

challenge. United States v. Provencio-Sandoval, 272 F. App’x

(continued...)

attests to the alien’s departure from the country. The

warrant’s primary purpose is to memorialize the deportation, not to prove facts in a potential future criminal

prosecution.

Similarly, a CNR certifies that a government official

searched the database of the Department of Homeland

Security and failed to find any record permitting a deportee’s return to this country. Although prepared in

anticipation of trial, a CNR simply memorializes the

contents of the Department database, maintained in the

ordinary course of business—or, more particularly, the

absence of a certain sort of record in that database. This, we

noted in Ellis, was “too far removed from the examples

of testimonial evidence provided by Crawford.” 460 F.3d

at 926. In other words, because the database underlying

the CNR is not maintained for the primary purpose of

proving facts in criminal prosecutions, the CNR itself,

attesting to the absence of a record within that database,

is a nontestimonial business record.3
10 No. 06-4091

(...continued) 3

683, 685 (10th Cir. 2008). The court said that it was not “clear

under current law” that the use of CNRs violated the Confrontation Clause because all circuits considering the

issue have decided that CNRs are nontestimonial. Id.

B. Denial of Substitute Counsel

Burgos also contends the district court improperly

denied his request for new appointed counsel. Before

proceeding, we note that it is far from clear whether the

district court actually denied this request or Burgos

withdrew it. Judge Clevert discussed the matter at length

with Burgos and his attorney and then called a recess for

the two to talk it over in the presence of a lawyer from the

Federal Defender’s office. After this conference Burgos’s

counsel told the court that although Burgos would prefer

to have new counsel appointed, if the court were

inclined to proceed with the trial, Burgos “is accepting

that and wants me here as counsel.”

Regardless, the district court has substantial discretion

on requests for substitute appointed counsel, and we

review the court’s decision only for an abuse of that

discretion. United States v. Zillges, 978 F.2d 369, 371 (7th

Cir. 1992). Three factors are relevant to this inquiry: (1)

the timeliness of the motion; (2) the adequacy of the

court’s inquiry into the motion; and (3) the ability of the

defendant and his counsel to communicate and to formulate a defense, despite the alleged conflict. Id. at 372.

We will reverse only if we find “an unreasoning and
No. 06-4091 11

arbitrary insistence upon expeditiousness in the face of a

justifiable request.” United States v. Carrera, 259 F.3d 818,

825 (7th Cir. 2001) (internal quotation marks omitted).

We note first that Burgos’s motion for new counsel was

tardy; he waited until the morning of trial to raise the

issue, having told the judge at a status conference only

the week before that he would go to trial. Second, the

district court’s inquiry after being presented with the

request was more than adequate. Judge Clevert took

ample pains to try to understand the basis for Burgos’s

request and explain his rights to him. That the court had

obliged an earlier request for a change of counsel, patiently

listened to Burgos the second time around, and allowed

a lengthy recess for consultation between attorney and

client demonstrate that this was not an “unreasoning

and arbitrary insistence on expeditiousness.” Finally,

Burgos and his counsel were able to communicate and

formulate a defense. They conversed privately during the

recess, and ultimately, Burgos’s attorney provided an

adequate defense to what was a straightforward case. The

district court did not abuse its discretion in declining to

adjourn the trial for the appointment of a third attorney.

AFFIRMED.

8-22-08