Today the Eleventh Circuit handed down an interesting opinion that addressed two Crawford v. Washington issues. Namely:
(1) whether, under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), a warrant of deportation is testimonial evidence subject to confrontation at trial;
(2) whether, under Crawford, a defendant has a right to confrontation at sentencing.
U.S. v. Cantellano (here). The panel held that a warrant of deportation is not testimonial:
We are persuaded that a warrant of deportation does not implicate adversarial concerns in the same way or to the same degree as testimonial evidence. A warrant of deportation is recorded routinely and not in preparation for criminal trial. It records facts about where, when, and how a deportee left the country. Because a warrant of deportation does not raise the concerns regarding testimonial evidence stated in Crawford, we conclude that a warrant of deportation non-testimonial and therefore is not subject to confrontation.
Slip op. at 7. I know nothing about warrants of deportation. Immigration guys and gals: Does the panel's opinion here make sense?
Next, the panel holds that a defendant does not have a right to confront his accusers at sentencing, even though the accusations made at sentencing can literally cause the defendant to serve years more in prison. The panel noted that "the right to confrontation is a trial right," id. at 9, and thus (tautologically), "The right to confrontation is not a sentencing right." Id. at 10.
Reading the panel's "analysis" reminds me of one of the late Judge Richard S. Arnold's guidelines for opinion writing (paraphrased): "The opinion must be based on reason, not authority. Strings cites are therefore not preferred." [UPDATE: I have more on Judge Arnold's methods in this post.] Read pages 9 and 10 of the slip op., and you'll see why Judge Arnold's death still saddens me. The panel glosses over what is a very interesting and complicated issue, and opts for string cites rather than persuasive reasoning.