Evidence - Rule 803(6) – Business Records

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

United States v. Blechman, 657 F.3d 1052 (10th Cir. 2011)

Records from AOL and PACER were admitted at trial and these records included certain “user-identifying” information that was inputted by the user, not by the companies and there was no effort by the companies to verify the information. This evidence was not admissible under the business records exception. Only when the business which accepts the outsider’s information makes an effort to assure reliability, or to verify the accuracy of the information, is the business records exception available in this situation. Harmless error.

United States v. Jackson, 636 F.3d 687 (5th Cir. 2010)

A DEA agent explained how and why drug traffickers keep drug ledgers. A co-conspirator’s drug ledgers that implicated the defendant were then introduced into evidence under the Business Records exception to the hearsay rule (the co-conspirator did not testify) and as a co-conspirator statement. The Fifth Circuit held that this was error. The agent’s testimony did not satisfactorily authenticate the records, or establish the necessary foundation that these records were kept in the regular course of business or that they were prepared during the course of the conspiracy. Though a person other than a record custodian may authenticate a business record, the witness must be able to authenticate this business record and not, as here, business records (or drug ledgers) in general. Admitting the ledgers constituted a violation of Confrontation Clause and required that the conviction be reversed. The Fifth Circuit further explained that the notebooks were inadmissible on Confrontation Clause grounds, because the government failed to prove that they were not testimonial. Because no effort was made to authenticate the notebooks (i.e., how or when they were written), the introduction of the notebooks became, in essence, the functional equivalent of the author testifying live in court. It is the government’s burden to prove that an out-of-court statement is non-testimonial.

United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir. 2009)

The contents of the INS “A” file did not all qualify as a business record, because the file contained statements made by non-government people about the defendant. It was reversible error to admit this document under either Rule 803(6) or 803(8).

United States v. Baker, 538 F.3d 324 (5th Cir. 2008)

In this child pornography case, the government introduced a NCMEC report (National Center for Missing and Exploited Children), that identified certain victims in the pornographic files. The government failed to authenticate the report, however, under either Rule 803(6) (Business Record) or Rule 803(8) (Public Report). Though the government may have been able to overcome the hearsay exception, it was still required to authenticate the record as a business, or public record. Various means of authenticating such records are set forth in Rules 901 and 902. But the government did not offer any such proof.

United States v. Gwathney, 465 F.3d 1133 (10th Cir. 2006)

Western Union sent documents in compliance with a subpoena from the DEA. The records themselves could qualify as a business record, assuming that they were authenticated and the foundation was laid by a Western Union representative. However, the DEA agent could not lay that foundation and the records could not qualify as a business record of the DEA. Allowing the records into evidence was harmless error.

United States v. Pelullo, 964 F.2d 193 (3rd Cir. 1992)

The government introduced bank wire transfer records for the truth of the matter asserted – that is, to show the movement of money from the bank to the corporation and then diverted to the defendant. The records were not admissible as a business record, because no custodian or other qualified witness identified the documents or established the foundation for the admissibility on this theory. No other exception could be used to authorize the admission of the documents. This was reversible error.

United States v. Casoni, 950 F.2d 893 (3rd Cir. 1991)

At trial, the government introduced the testimony of a former co-conspirator of the defendant. Then, to corroborate his testimony, the government introduced the testimony of the witness’s attorney, who also recited what the witness told him. Then the government offered the attorney’s memorandum proffer of what the witness would say; this memorandum had been given to the government in the attorney’s pitch to get the witness immunity. The memorandum was offered as a business record of the attorney. Though the attorney’s testimony was properly admitted as a prior consistent statement of the witness, the attorney’s memorandum was not a proper business record because it lacked trustworthiness usually ascribed to business records. The declarant – the witness – had an interest in minimizing his role in the offense and maximizing the role of the person against whom he was prepared to testify. Also, the attorney, in preparing the memorandum, had the same interest – in his professional capacity – to minimize his client’s culpability and maximize the culpability of the defendant. Thus, the witness’s statements to the attorney were admissible, but not the attorney’s memorandum of the proffer. Harmless error.

United States v. Versaint, 849 F.2d 827 (3rd Cir. 1988)

The defendant sought to introduce a police report as substantive evidence of a misidentification. The government resisted the offer on the grounds that the report was written one month after the undercover activities in the drug investigation had been conducted. The exclusion of the evidence was reversible error; the report qualified under the records exception to the hearsay rule.

United States v. Ismoila, 100 F.3d 380 (5th Cir. 1996)

A business record is admissible only if the information on the document is furnished by a person who is providing the information pursuant to the regular course of the business activities. Thus, a business record is not admissible even if it is prepared in the usual course of business, but the information is provided by someone outside the business, such as a customer. Here, the government introduced bank records that contained customers’ complaints that their credit cards included unauthorized charges. While the bank’s records were prepared in the ordinary course of business, the information provided by the customers did not qualify under Rule 803(6). Nevertheless, the court approved the admission of the evidence under Rule 803(24), the residual exception.

United States v. Chu Kong Yin, 935 F.2d 990 (9th Cir. 1991)

The defendant was charged with INS fraud because of his false statement on an INS application about his prior criminal record. At trial, the government offered an official Hong Kong record of defendant’s conviction. The record was prepared, however, in 1988 and indicated that defendant had a 1981 conviction. This record was properly authenticated under Rule 901, but was nevertheless inadmissible hearsay. It was not a business record, because the author did not report something which he or she witnessed; rather the author’s basis of knowledge was unknown. The document was also inadmissible under the public records exception, because, again, the author did not report events to which he or she was a witness. This exception, Rule 803(8), only excuses the appearance of the author, but the testimony of the author would have to be otherwise admissible.

United States v. McIntyre, 997 F.2d 687 (10th Cir. 1993)

The government offered motel registration cards for the purpose of showing that the conspirators had been at the hotel on a particular date. The registration cards, however, were hearsay. Though the cards were shown to have been maintained in the regular course of business, the information was obtained from the guest and the guest is not under the “business duty” or compulsion to provide accurate information. If the business employee verified the information, the business record exception might apply; but the government failed to establish that the employee actually verified the information (the guest’s identity). Also, the government introduced Western Union wire transfers for the purpose of establishing the identity of both the sender and the recipient. Though Western Union verified recipients, it never verified the identity of the sender. The admission of the transfer records was erroneous with regard to identifying the sender, but not with regard to the identity of the recipient. Finally, this same analysis applied to records of a cellular phone. Again, the identity of the customer as reflected in the records was hearsay, absent evidence that the company verified the customer’s identity. These errors were harmless.

United States v. Bohrer, 807 F.2d 159 (10th Cir. 1986)

The government sought to introduce an IRS contact card which contained the agent’s version of an alleged telephone conversation between the agent and the defendant. This was inadmissible under the “business records” exception. The card was maintained as part of the defendant’s IRS file for the specific purpose of prosecuting the defendant. As such, it was not kept in the regular course of business.