United States v. Raymond Fryberg, Jr.

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).