United States v. Raymond Fryberg, Jr. , 854 F.3d 1126 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30013
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00109-JLR-1
RAYMOND LEE FRYBERG, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted March 8, 2017
Seattle, Washington
Filed April 21, 2017
Before: Susan P. Graber, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Graber
2 UNITED STATES V. FRYBERG
SUMMARY*
Criminal Law
Affirming a conviction for possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(8), the
panel held that a return of service that the Government used
to prove that the defendant had been served with notice of a
hearing on a domestic violence protection order was
admissible under the public record exception to hearsay in
Fed. R. Evid. 803(8)(A)(ii), and that admission of the return
of service did not violate the defendant’s rights under the
Confrontation Clause of the Sixth Amendment.
The panel rejected the defendant’s other arguments in a
concurrently filed memorandum disposition.
COUNSEL
John Henry Browne (argued), Law Office of John Henry
Browne P.S., Seattle, Washington; Kany M. Levine, The
Levine Law Firm PLLC, Seattle, Washington; for Defendant-
Appellant.
Bruce Miyake (argued), Assistant United States Attorney;
Annette L. Hayes, United States Attorney; United States
Attorney’s Office, Seattle, Washington; for Plaintiff-
Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. FRYBERG 3
OPINION
GRABER, Circuit Judge:
Defendant Raymond Lee Fryberg, Jr., appeals his
conviction for possession of a firearm by a prohibited person,
in violation of 18 U.S.C. § 922(g)(8). He argues several
grounds for reversal, including the allegedly erroneous
admission into evidence of a return of service that the
Government used to prove that Defendant had been served
with notice of a hearing on a domestic violence protection
order. We conclude that the admission of the return of
service did not violate either the rule against hearsay or the
Confrontation Clause of the Sixth Amendment, and we affirm
Defendant’s conviction.1
FACTUAL AND PROCEDURAL HISTORY
In August 2002, Jamie Gobin sought a domestic violence
protection order against Defendant in a Tulalip tribal court
near Marysville, Washington.2 On August 19, the court
issued a temporary protection order and a notice of hearing
concerning a permanent protection order. Attempts to serve
Defendant with the temporary protection order and the notice
of the hearing were unsuccessful, prompting the tribal court
to issue a second temporary order and hearing notice on
August 27, setting the hearing for September 10, 2002. The
next day, Officer Jesus Echevarria—a tribal police officer and
1
In this opinion, we address only the issue of the admissibility of the
return of service. We reject the other arguments raised by Defendant in
a concurrently filed memorandum disposition.
2
Defendant is a member of the Tulalip Tribes, as is Gobin.
4 UNITED STATES V. FRYBERG
Jamie Gobin’s brother-in-law—filed a completed return of
service with the tribal court. The return of service reads, in
relevant part, as follows: “I served Raymond Lee Fryberg Jr.
with the . . . Temporary Order for Protection and Notice of
Hearing.” The return states that service was effected on the
evening of August 27 at the “[c]orner of Reuben Shelton
Drive [and] Ellison James” Drive.
Defendant did not appear at the September 10 hearing.
The tribal court took testimony from Jamie Gobin and her
mother and entered a permanent domestic violence protection
order. The order, which forbade Defendant from harassing
Gobin and their son and from coming within 100 yards of
Gobin’s residence, was of indefinite duration. Although
Tulalip law provides a mechanism by which a person subject
to a protection order may seek to have the order modified or
dissolved, Defendant never availed himself of that
mechanism. He remained subject to the order at all times
relevant to this appeal. During that time, he acquired several
firearms.
In 2015, the Government filed a criminal complaint
alleging that Defendant’s possession of a Beretta PX4 Storm
handgun violated § 922(g)(8), which prohibits persons who
are subject to certain types of domestic violence protection
orders from possessing firearms. A grand jury returned a
one-count indictment, to which Defendant pleaded not guilty.
A grand jury returned a superseding indictment, charging
Defendant with six counts of violating § 922(g)(8). The new
counts pertained to additional firearms—nine in all—that
Defendant had obtained while under the protection order.
Defendant again pleaded not guilty.
UNITED STATES V. FRYBERG 5
The case was tried to a jury. Because of Officer
Echevarria’s death just a month before trial, the Government
had to rely on his 2002 return of service to prove that
Defendant had been served with notice of the hearing that led
to the permanent protection order—an essential element of its
case. Defendant filed a pretrial motion in limine to exclude
the return of service, arguing that its admission would violate
both the rule against hearsay and the Confrontation Clause of
the Sixth Amendment. The district court denied that motion.
At trial, Defendant’s main strategy was to cast doubt on
the veracity of the return of service. During his closing
argument, for instance, defense counsel said the following:
You heard Heather Gobin[, who is Jamie
Gobin’s sister and was Jesus Echevarria’s
wife in 2002,] testify that she told Jesus [that
serving Defendant] was the most important
thing to her in her life right now. So would
that bring questions to your mind as to
whether the government has proven beyond a
reasonable doubt that that service actually
occurred? There is no other evidence of it,
other than this piece of paper, which we
cannot cross-examine.
Is it important for you to know? If he was
alive and here, I could cross-examine him.
Do you think it’s appropriate to serve papers
in a case where you’re related to the people?
Is that something that’s okay, when there’s
15 members in that police department, and
you’re just, coincidentally, the person who
goes out and supposedly serves Mr. Fryberg?
6 UNITED STATES V. FRYBERG
That strategy failed, and the jury found Defendant guilty on
all six counts of possession of a firearm by a prohibited
person. Defendant timely appeals from the resulting
judgment.3
STANDARDS OF REVIEW
In reviewing a district court’s evidentiary rulings, “the
selection of the applicable standard of review is contextual:
The de novo standard applies when issues of law predominate
in the district court’s evidentiary analysis, and the abuse-of-
discretion standard applies when the inquiry is essentially
factual.” United States v. Mateo-Mendez, 215 F.3d 1039,
1042 (9th Cir. 2000) (internal quotation marks omitted). In
reviewing an “essentially factual” ruling for abuse of
discretion, “[w]e review . . . any underlying factual
determinations for clear error.” United States v. Whittemore,
776 F.3d 1074, 1077 (9th Cir. 2015).
We review de novo alleged violations of the
Confrontation Clause. United States v. Brooks, 772 F.3d
1161, 1167 (9th Cir. 2014).
DISCUSSION
In order to convict Defendant of violating § 922(g)(8), the
Government was required to prove beyond a reasonable doubt
that he possessed firearms while “subject to a court order that
was issued after a hearing of which [he] received actual
notice, and at which [he] had an opportunity to participate.”
18 U.S.C. § 922(g)(8)(A). We have described the notice
requirement of § 922(g)(8) as a “sub-element” of the offense.
3
Defendant challenges his conviction, but not his sentence.
UNITED STATES V. FRYBERG 7
United States v. Sanchez, 639 F.3d 1201, 1204 (9th Cir.
2011). Defendant argues that the district court erroneously
admitted the key piece of evidence4 that the Government
introduced to show that Defendant received actual notice of
the hearing on the protection order—the return of service of
the hearing notice.5 In particular, Defendant argues that
(1) the district court erred in admitting the return of service as
a “public record” under Federal Rule of Evidence 803(8) and
(2) the admission of the return of service violated the
Confrontation Clause of the Sixth Amendment. We address
those arguments in turn.
A. Public Record Exception
The relevant portion of the return of service amounts to an
out-of-court statement by Officer Jesus Echevarria to the
effect that, “I served Defendant with notice of the hearing on
the protection order.” Such a statement is hearsay. Fed. R.
4
In its response to Defendant’s motion in limine, the Government
characterized the return of service as “a critical document necessary for
the government to meet its burden of proof beyond a reasonable doubt as
to an element of the crime of unlawful possession of a firearm by a
prohibited person—specifically, that the defendant received actual notice
of a hearing.”
5
Defendant does not treat the “actual notice” and “opportunity to
participate” sub-elements of § 922(g)(8) separately, but the gist of his
argument goes to the “actual notice” sub-element. It is clear from the
record that Defendant had an “opportunity to participate” in the hearing
within the meaning of § 922(g)(8)(A) if he received notice. See United
States v. Young, 458 F.3d 998, 1009 (9th Cir. 2006) (holding that, to prove
that a defendant had an “opportunity to participate,” the Government need
only show that there was “a proceeding during which the defendant could
have objected to the entry of the [protection] order or otherwise engaged
with the court as to the merits of the . . . order”).
8 UNITED STATES V. FRYBERG
Evid. 801(c). The district court held that the return of service
was admissible nonetheless under the public records
exception to hearsay in Rule 803(8). Specifically, the district
court admitted the return of service under Rule 803(8)(A)(ii),
which provides that “[a] record or statement of a public office
[is admissible] if . . . it sets out a matter observed while under
a legal duty to report, but not including, in a criminal case, a
matter observed by law-enforcement personnel.” Defendant
argues that the return of service does not “set[] out a matter
observed while under a legal duty to report” and that, even if
it did, the law enforcement exception should have barred its
admission. Those issues are essentially legal in nature, so we
review them de novo. Mateo-Mendez, 215 F.3d at 1042.
Defendant also argues that he “show[ed] that the source of
information or other circumstances” surrounding the return of
service “indicate[d] a lack of trustworthiness,” such that the
return of service should thus have been excluded under Rule
803(8)(B). That issue is essentially factual in nature, and we
review the district court’s ruling for abuse of discretion. Id.
1. Matter Observed While Under a Legal Duty to
Report
We have held that a “legal duty to report” within the
meaning of Rule 803(8)(A)(ii) may exist even in the absence
of “a statute or regulation [that] expressly imposes duties to
observe, report, and keep records.” United States v. Lopez,
762 F.3d 852, 862 (9th Cir. 2014). The pertinent question is
whether the creation and maintenance of the record at issue
is “appropriate to the function of the” relevant government
office, given “the nature of the responsibilities assigned to”
that office. Id. For instance, a “verification of removal”—a
document “designed to record the physical removal of [an]
alien across the border,” id. at 856—is the type of record that
UNITED STATES V. FRYBERG 9
the Department of Homeland Security (“DHS”) would be
expected to create and maintain in the course of carrying out
its duties. Accordingly, a DHS official is “under a legal duty
to report” within the meaning of Rule 803(8)(A)(ii) when
preparing such a document. Id. at 862.
Here, the tribal court required that Defendant be served
with notice of the hearing on the protection order. The return
of service was intended to notify the tribal court that service
had taken place and, thus, that the hearing on the protection
order could proceed. We conclude that the completion of the
return of service was “appropriate to the function” of the
tribal court system and that, therefore, Officer Echevarria was
under a legal duty to report when he completed the return of
service.6 We also conclude that the fact that service had been
effected was a “matter observed” by Officer Echevarria. See
id. at 861–62 (concluding that a DHS official who completed
a verification of removal “observed” an alien’s removal from
the United States).
6
It is true that Officer Echevarria was a tribal police officer and not
an employee of the judiciary. But, insofar as he was instructed to carry out
orders of the tribal court—such as serving Defendant with the notice of the
hearing—his duties were owed to the court system. Cf. Miller v. Gammie,
335 F.3d 889, 895–96 (9th Cir. 2003) (en banc) (noting the “well-
established and well-understood common-law tradition that extended
absolute immunity to individuals performing functions necessary to the
judicial process “); Chabal v. Reagan, 841 F.2d 1216, 1220 (3d Cir. 1988)
(noting that “[United States] [M]arshals are officers of the executive
branch,” but that “federal courts . . . may direct their actions . . . pursuant
to express statutory authority”).
10 UNITED STATES V. FRYBERG
2. Law-Enforcement Personnel Exception
Defendant argues that, even if the return of service is a
record that sets out a matter observed while under a legal duty
to report, it should not have been admitted under Rule
803(8)(A)(ii) because of the rule’s law enforcement
exception. That exception—really, a limitation on the
hearsay exception of Rule 803(8)(A)(ii)—provides that a
record of “a matter observed by law-enforcement personnel”
is not admissible as a public record in a criminal case. As
Defendant correctly points out, (1) this is a criminal case, and
(2) Officer Echevarria was a law enforcement officer. Given
those two facts, the text of the law-enforcement personnel
exception would seem to bar admission of the return of
service.
But the exception is not quite as broad as its wording
suggests. “The Federal Rules of Evidence are, like many
written laws, organic growths out of our common law,”
United States v. Orellana-Blanco, 294 F.3d 1143, 1150 (9th
Cir. 2002), and must be construed with that pedigree in mind.
Rule 803(8) grew out of the common-law public records
exception to hearsay, which “developed to admit the sundry
sorts of public documents for which no serious controversy
ordinarily arises about their truth.” Id. Considering that
history, it would be natural to expect the law enforcement
exception to cover only those records whose origins call into
question their reliability. Indeed, we have recognized that
“the purpose of the law enforcement exception is to ‘exclude
observations made by officials at the scene of the crime or
apprehension, because observations made in an adversarial
setting are less reliable than observations made by public
officials in other situations.’” Lopez, 762 F.3d at 861
(quoting United States v. Hernandez-Rojas, 617 F.2d 533,
UNITED STATES V. FRYBERG 11
535 (9th Cir. 1980)). But “records of routine, nonadversarial
matters made in a nonadversarial setting, reflecting
ministerial, objective observations” of law enforcement
personnel, Orellana-Blanco, 294 F.3d at 1150 (internal
quotation marks and footnote omitted), are admissible in a
criminal case, because such records are made under
conditions that do not call into question their reliability,
United States v. Orozco, 590 F.2d 789, 793–94 (9th Cir.
1979). Consistent with that narrow understanding of the law
enforcement exception, we have held that several different
types of records reflecting the observations of law
enforcement personnel are admissible in criminal cases. See
id. (holding that a record made by a customs inspector, stating
that a car with a particular license plate had crossed the
border at a particular time, was admissible as a public
record); see also Hernandez-Rojas, 617 F.2d at 534–35
(holding that a warrant of deportation, which reflected an
immigration officer’s observation that an alien had been
deported, was admissible as a public record).
We now hold that a return of service, such as the one in
this case, is admissible as a public record under Rule
803(8)(A)(ii). The return of service recorded the completion
of the largely ministerial task of serving Defendant with
notice of a hearing.7 The observation reflected in the return
7
Serving a party with process or with notice of a hearing is generally
a ministerial task. See Finberg v. Sullivan, 634 F.2d 50, 55 (3d Cir. 1980)
(en banc) (noting that “the duties of the . . . sheriff in connection with the
postjudgment garnishment procedures consist of issuing the writ of
execution and serving it on the garnishee,” duties that “are entirely
ministerial”); see also Levy Court v. Ringgold, 30 U.S. 451, 454 (1831)
(“[M]arshals of the United States . . . are considered as mere ministerial
officers, to execute process when put into their hands, and not made the
judges whether such process shall be issued.”).
12 UNITED STATES V. FRYBERG
of service—that service had taken place—was an objective
one, not the type of “subjective observation[], summar[y],
opinion[,] [or] conclusion[] of law enforcement personnel”
that Congress intended to exclude from the scope of the
public records exception. Orellana-Blanco, 294 F.3d at 1150.
Finally, the return of service at issue is similar to a sheriff’s
return, which was admissible at common law as a public
record. United States v. Union Nacional de Trabajadores,
576 F.2d 388, 390–91 (1st Cir. 1978); see also Lavino v.
Jamison, 230 F.2d 909, 911–12 (9th Cir. 1956) (“Sheriff’s
returns are documents executed by public officials who
normally carry out their duties properly. It is more
convenient to place the burden of going forward with the
evidence to show that statements in a return are inaccurate on
the party so asserting than to require a sheriff to be called
away from his duties in every case.”). “There is nothing to
indicate that Congress meant to cut back upon the common
law rule respecting sheriff’s returns” when it codified the rule
in the Federal Rules of Evidence. Union Nacional de
Trabajadores, 576 F.2d at 391.8
3. Rule 803(8)(B)
Defendant’s final rule-related argument is that the district
court should have excluded the return of service under Rule
803(8)(B), which bars admission if “the source of information
8
Several state courts, interpreting state rules of evidence that are
substantially similar to Rule 803(8), have held that returns of service
prepared by law enforcement officers are admissible as public records in
criminal cases. See, e.g., Frady v. Frady, 58 P.3d 849, 852 (Or. Ct. App.
2002) (“Because service of the [restraining] order and the reporting of that
service were routine, nonadversarial matters, the exclusion from the
official records exception for matters observed by police officers is
inapplicable.”).
UNITED STATES V. FRYBERG 13
or other circumstances indicate a lack of trustworthiness.”
Fed. R. Evid. 803(8)(B). Rule 803(8)(B) comes into play
only if the party seeking to introduce a record succeeds in
convincing a court that the record should be admitted under
Rule 803(8)(A). The party opposing admission then bears the
burden of showing that the record is untrustworthy. See
United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th
Cir. 1997) (construing a prior version of Rule 803(8)); see
also Fed. R. Evid. 803(8) advisory committee’s note to 2014
amendment (“The Rule has been amended to clarify that if
the proponent has established that the record meets the stated
requirements of the exception[,] . . . then the burden is on the
opponent to show that the source of information or other
circumstances indicate a lack of trustworthiness.”).
Defendant offers two reasons to doubt the trustworthiness
of the return of service. First, the location noted as the place
of service on the return does not, according to Defendant,
exist. Second, Officer Echevarria, who served the notice, was
married to the sister of the woman who had sought the
protection order against Defendant. According to Defendant,
that relationship gave Officer Echevarria a “vested interest”
in effecting service that makes the return of service
untrustworthy.
The district court expressly considered the first argument
and rejected it, finding that the place of service did exist.
That finding is not clearly erroneous. Defendant’s lawyer
then pointed out for the first time the relationship between
Echevarria and Defendant; the court did not alter its ruling on
the admissibility of the return of service in light of that new
14 UNITED STATES V. FRYBERG
information.9 Given the relatively weak showing of
untrustworthiness made by Defendant, the district court did
not abuse its discretion in admitting the return of service.10
B. Confrontation Clause
Defendant next argues that, even if the return of service
was properly admitted under Rule 803(8), its admission
violated his Sixth Amendment right of confrontation. We are
not persuaded.
The Confrontation Clause “guarantees a defendant’s right
to confront those ‘who “bear testimony”’ against him.”
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)
(quoting Crawford v. Washington, 541 U.S. 36, 51 (2004)).
9
Defendant’s lawyer told the district court that Officer Echevarria
was the brother of the woman who had sought the protection order against
Defendant. In fact, he was her brother-in-law.
10
At trial, testimony was elicited from Officer Echevarria’s widow
that could support the theory that Echevarria was under pressure to serve
Defendant and thus may have had a reason to falsify the return of service.
But none of that evidence was in front of the district court at the time it
ruled on the objection to the admissibility of the return of service. In fact,
Echevarria’s widow did not testify until after the return of service had
been admitted into evidence. “It is important that a reviewing court
evaluate the trial court’s [evidentiary] decision[s] from its perspective
when it had to rule and not indulge in review by hindsight.” Old Chief v.
United States, 519 U.S. 172, 182 n.6 (1997). Morever, even if all the
relevant trial testimony had been before the district court at the time it
ruled, the court would not have abused its discretion by admitting the
return. The fact that Officer Echevarria was under pressure to serve
Defendant does not necessarily undermine the reliability of the return of
service. It is at least as plausible to infer that the pressure on Officer
Echevarria caused him to actually serve Defendant so as to satisfy his
family.
UNITED STATES V. FRYBERG 15
“A witness’s testimony against a defendant is . . .
inadmissible unless the witness appears at trial or, if the
witness is unavailable, the defendant had a prior opportunity
for cross-examination.” Id. But not all out-of-court
statements implicate the Confrontation Clause—only
statements whose “primary purpose” was testimonial trigger
the constitutional requirement. Ohio v. Clark, 135 S. Ct.
2173, 2180 (2015). Statements made for primarily
nontestimonial purposes—such as statements made during a
911 call for the purpose of facilitating police assistance,
Davis v. Washington, 547 U.S. 813, 828 (2006)—are not
subject to the Confrontation Clause’s requirements. “The
‘primary purpose’ of a statement is determined objectively.”
United States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th
Cir. 2013). “That is, the relevant inquiry is not the subjective
or actual purpose of the individuals involved in a particular
encounter, but rather the purpose that reasonable participants
would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the
encounter occurred.” Michigan v. Bryant, 562 U.S. 344, 360
(2011).
In the years since Crawford “rescued” the right of
confrontation “from the grave,” Clark, 135 S. Ct. at 2184
(Scalia, J., concurring in the judgment), the Supreme Court
and this court have decided several cases that, taken together,
help to clarify what types of public records (and statements
contained therein) qualify as having a primarily “testimonial”
purpose. Two of our post-Crawford decisions dealing with
the testimonial nature of official documents are particularly
instructive.
United States v. Orozco-Acosta, 607 F.3d 1156, 1162 (9th
Cir. 2010), concerned warrants of removal, which are
16 UNITED STATES V. FRYBERG
immigration documents that contain “both [an] order[] that
[an alien] be removed from the United States” and
documentation of that alien’s physical removal. We held that
the warrant of removal11 was not “testimonial” because it was
“not made in anticipation of litigation, but rather to record the
movements of aliens.” Id. at 1163 (internal quotation marks
omitted). That is, its primary purpose was not “use at trial”
to establish some fact. Id. at 1164.
In United States v. Bustamante, 687 F.3d 1190, 1192–93
(9th Cir. 2012), we considered whether a document
containing a transcription of the information from a birth
certificate was testimonial in nature. The document was not
a copy of the birth certificate; rather, it was, in essence, “an
affidavit testifying to the contents of . . . birth records” that
had been prepared “for the purpose of [a previous]
investigation into [the defendant’s] citizenship.” Id. at 1194.
We held that the document was testimonial in nature because
it was prepared “at the request of the U.S. government for the
purpose of its investigation into [the defendant’s]
citizenship.” Id. Unlike an authenticated copy of the birth
certificate, which likely would have been nontestimonial, the
document was “a new record” created “for the purpose of
providing evidence against” the defendant. Id.
This case lies somewhere between Orozco-Acosta and
Bustamante. The return of service in this case was not “a
new record” created at the behest of investigators “for the
purpose of providing evidence against” Defendant, unlike the
document at issue in Bustamante. But the return of service
11
The portion of a warrant of removal that is most relevant to this
case is the documentation that an alien has been physically removed from
the United States.
UNITED STATES V. FRYBERG 17
established the existence of notice, which was necessary to
make the protection order effective and to subject Defendant
to criminal liability for violations of the order. In other
words, the return of service is an important part of the
mechanism by which protection orders are entered and
enforced, and that enforcement is criminal in nature. See
Tulalip Tribal Code § 4.25.550 (“Violation of a protection
order is a crime.”).12 The return of service in this case thus
had more of a criminal prosecutorial function than the
immigration document at issue in Orozco-Acosta. More
generally, a return of service of a notice of a hearing on a
protection order seems more likely than an immigration
document to be used in a later criminal proceeding and, for
that reason, has a more testimonial purpose.
Nonetheless, “[a] business or public record is not
‘testimonial’ due to ‘the mere possibility’ that it could be
used in a later criminal prosecution.” United States v.
Morales, 720 F.3d 1194, 1200 (9th Cir. 2013) (quoting
Orozco-Acosta, 607 F.3d at 1164). The inquiry is whether
the primary purpose of the record is “for use as evidence at a
future criminal trial.” Id. at 1201. Here, the primary purpose
of the return of service was to inform the tribal court that
Defendant had been served with notice of the hearing on the
protection order, which enabled the hearing to proceed.
Perhaps it was foreseeable to Officer Echevarria that the
return of service might later be used in a criminal trial to
establish the fact that Defendant had been served with notice,
but that fact does not necessarily render the return of service
12
It is generally true that one who violates a domestic violence
protection order is subject to criminal penalties. See, e.g., Wash. Rev.
Code § 26.50.110 (2016) (violation of a protection order is at least a gross
misdemeanor).
18 UNITED STATES V. FRYBERG
or the statements contained therein “testimonial” for purposes
of the Confrontation Clause. Had the Government not
produced a copy of the return of service but, instead,
attempted to introduce a 2015 affidavit signed by Officer
Echevarria stating that he had served Defendant with notice
in 2002, this case would be closer to Bustamante. As it is,
however, the Government introduced the return of service
itself, a contemporaneous document owing its existence
primarily to the tribal court’s administrative needs. We hold
that the admission of the return of service did not violate
Defendant’s rights under the Confrontation Clause.13
AFFIRMED.
13
Several state courts have held that the admission of a return of
service such as the one in this case does not violate the Confrontation
Clause. See, e.g., State v. Copeland, 306 P.3d 610, 627–28 (Or. 2013)
(holding that a certificate of service showing that the defendant had been
served with a protection order “was created . . . to serve the administrative
functions of the court system” and thus did not have a primarily
testimonial purpose); see also Gaines v. State, 999 N.E.2d 999, 1004–05
(Ind. Ct. App. 2013) (holding that the “primary purpose of the return of
service [of an ex parte protective order] is administrative,” and that such
a return of service did not trigger the Confrontation Clause’s
requirements).