## Facts

- Federal prosecutors charged members of a violent cocaine distribution organization, “Tito’s Crew,” with racketeering, drug trafficking, and multiple murders.
- After a jury trial in the Southern District of New York, defendant Jose Erbo was convicted of substantive racketeering, RICO conspiracy, murder in aid of racketeering and related conspiracy, firearms offenses tied to the murders, and drug-distribution conspiracies.
- To prove cause and manner of death for homicide victims linked to the charged murders, the government introduced autopsy reports.
- Not all medical examiners who prepared the autopsy reports testified at trial; the reports were admitted through other witnesses.
- On appeal, Erbo argued that admitting the autopsy reports without cross-examining the preparing examiners violated the Sixth Amendment Confrontation Clause as interpreted in Crawford v. Washington.

## Issues

1. Whether autopsy reports offered to prove cause and manner of death are “testimonial” statements under Crawford, requiring the preparer’s unavailability and a prior opportunity for cross-examination.
2. Whether admitting such autopsy reports without the preparing medical examiner’s live testimony violates the Confrontation Clause.

## Decision

- The Second Circuit affirmed Erbo’s convictions as to the Confrontation Clause challenge addressed in the published opinion.
- The court held that autopsy reports are not “testimonial” within the meaning of Crawford.
- Because the reports were nontestimonial, their admission without the preparing medical examiner’s testimony did not violate the Sixth Amendment.

## Legal Principles

- Under Crawford, “testimonial” hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine; nontestimonial hearsay does not trigger Crawford’s categorical Confrontation Clause bar.
- Autopsy reports prepared by medical examiners in the regular course of professional duties, and not by law-enforcement personnel, may be treated as public or business records that are generally nontestimonial.
- Records created for routine administrative or regulatory purposes, rather than primarily to establish facts for a particular prosecution, lack the formalized, accusatory character associated with testimonial statements.

## Conclusion

The Second Circuit concluded that autopsy reports admitted to prove cause and manner of death were nontestimonial under Crawford, so the government could introduce them without calling the preparing medical examiners for cross-examination, and the defendant’s convictions were affirmed.


United States v. Feliz, 467 F.3d 227 (2d Cir. 2006)