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Employee Affidavit Violates Confrontation Clause

In United States v. Norwood, Mr. Norwood was tried in 2009 for possession of crack cocaine for distribution. At trial, the government introduced an affidavit by a state employee claiming there were no wage records for Norwood (as a large amount of cash was found in his home and car). “[T]he court admitted her affidavit as circumstantial evidence that Norwood had no legal source for the large amounts of cash that were found on his person and in his car.” Id. at *2.

The Ninth upheld the conviction. See 555 F.3d 1061 (9th Cir. 2009). The Supreme Court granted, vacated, and remanded the Ninth’s opinion in light of its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct 2527 (2009). This Norwood decision is the Ninth’s decision on remand.

Norwood alleged that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the affiant to testify on the stand. The Court noted that the Government conceded that under Melendez-Diaz, the affidavit, prepared for use at Norwood’s trial to prove the absence of any record of Norwood having legitimate employment, should not have been admitted without the employee presenting herself at trial for examination.

However, the court found that "disregarding the affidavit entirely, the evidence against Norwood on the elements of the offense of possession of cocaine base with intent to distribute was sufficient to establish his guilt beyond any reasonable doubt.” Id. at *4. (Therefore, this was harmless error).

The case is: United States v. Norwood, 2919 WL 537497 (9th Cir. Feb. 17, 2010).

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