Evidence:
Article VIII - Hearsay
Sixth Circuit Decisions
• 801 - HearsayU.S. v. Blackwell, 05-4588 (8/29/06)
> Defendant was charged with conspiracy to commit insider trading and at trial he attempted to present evidence that two witnesses had heard rumors in the community and on the internet about a buyout of defendant’s company. The district court excluded the evidence and defendant appealed.
* Holding: The court found that the testimony of the witnesses constituted hearsay because it recounted statements made outside the courtroom that rumors existed about a buyout. The court refuted defendant’s argument that the statements were not made to show the truth of the matter asserted, because the court found that the “matter asserted” was that rumors existed, not that the buyout was going to occur. The court noted that if the evidence were offered to show the truth of the buyout, it would actually be “double hearsay.” Accordingly, the district court ruling was affirmed.
• 801 - Hearsay
U.S. v. Childs, 07-1495 (8/29/08)
> Defendant was charged with conspiracy to commit murder for hire. At trial, a witness testified that a codefendant asked her, in defendant’s presence, if she knew anyone who would commit a murder. Defendant objected to the testimony as hearsay, but the district court admitted the evidence. Defendant appealed.
* Holding: The court held that the inquiry made by the codefendant was not hearsay under FRE 801, but instead was a verbal act. The extension of the invitation to commit a murder is not a “statement” under the hearsay rule because it is not an “assertion.” It is the fact that the invitation was made, not the truth of the declaration, that was relevant. Accordingly, the codefendant’s invitation was not hearsay, and the district court’s ruling was affirmed.
• 801 - Hearsay - Background Information
U.S. v. Caver, 05-3295 (12/4/06)
> Defendant was charged with a drug conspiracy and at trial an officer testified that he had been debriefed by another officer that defendant was responsible for dealing a lot of drugs in the area. Defendant objected that the testimony was hearsay and the district court overruled the objection. Upon defendant’s conviction, he appealed.
* Holding: Background information does not qualify as hearsay if it is admitted “to show the effect of hearing that information upon the testifying witness, who subsequently, as a result of the background information, acquires the knowledge that provides the foundation for the witness’s testimony.” In the case, the court held that the hearsay information was not properly background information because the testifying officer did not actually rely on the information in making his arrest of defendant. At the time the officer arrested defendant, he was not aware that the person he was arresting was the same person that he was told was a drug dealer. Thus, the court found that the testimony was inadmissible hearsay. The court nonetheless found the error harmless because the evidence of defendant’s drug dealing was otherwise overwhelming.
• 801 - Hearsay - Background Evidence
U.S. v. Gibbs, 06-1916 (10/29/07)
> Defendant was charged with being a felon in possession of a firearm, based on a handgun that was found in his bedroom. At trial, the government introduced the testimony of a parole officer who indicated that a witness told him that defendant had “long guns, shotguns and/or rifles” hidden in his bedroom. The parole officer testified that this tip from the witness caused him to search defendant’s bedroom, thus finding the handgun. Defendant was convicted and argued on appeal that the parole officer’s testimony regarding the tip should have been excluded as hearsay, and as a violation of the Confrontation Clause.
* Holding: The court held that the testimony of the parole officer as to the tip he received was offered only as background evidence to show the reason for his search of defendant’s bedroom. Thus, the testimony was not offered for the truth of the matter asserted, and it was accordingly not hearsay under FRE 801. Further, because the testimony was not offered for the truth of the matter asserted, the court ruled that it did not violate the Confrontation Clause. Finally, the court found that any error in admitting the testimony was harmless because the evidence against defendant was otherwise compelling. Accordingly, defendant’s conviction was affirmed.
• 801 - Hearsay - Background Evidence
U.S. v. Goosby, 07-5229 (4/24/08)
> Defendant was charged with 30 counts of aiding the preparation of false tax returns. At trial, an IRS agent testified that he began his investigation by utilizing an IRS program that allowed him to review returns submitted by tax preparers, and to compare the ratio of gross income to deductions. Defendant’s returns contained a high ratio, which was an indicator of potential fraud. Defendant objected to presentation of the testimony in a pretrial motion, but the district court overruled. Upon defendant’s conviction, he appealed.
* Holding: The court held that the testimony regarding the program used by the IRS agent was not offered for the truth of the matter asserted, but merely as background evidence and to establish a basis for the “constructing the sequence of events” in the investigation. The court ruled that the testimony did not “directly implicate defendant in criminal activity.” Thus, the evidence was not excludable hearsay. Further, the court noted that admission of the evidence did not violate the Confrontation Clause because the agent did not make statements that could be characterized as testimonial hearsay. Accordingly, the conviction was affirmed.
• 801 - Hearsay
U.S. v. Rodriguez-Lopez, 07-6045 (5/6/09)
> Defendant was caught circling a parking lot in a pick-up truck during a drug transaction. While he was being questioned by officers, he received ten phone calls from persons requesting heroin. Upon his prosecution, defendant moved to suppress the phone calls as hearsay. The district court granted the motion, and the government filed an interlocutory appeal.
* Holding: The court held that the statements on the phone calls were not offered for the truth of the matter asserted, but were offered only for the fact that the calls were made to defendant. The importance of the calls was not whether the callers had a real desire for heroin or whether they believed defendant could provide heroin, but only that defendant received the calls. The court emphasized that “the fact that out-of-court statements are being used to support a material inference does not by itself make them hearsay; it makes them relevant.” Accordingly, the district court’s ruling was reversed.
• 801 - Hearsay
U.S. v. Davis, 08-1349 (8/20/09)
> Defendant was charged with being a felon in possession of a firearm. Prior to trial, defendant moved to exclude a hearsay statement from an anonymous witness who claimed that defendant was riding in a car with a gun. The district court denied the motion. At trial, the government established that the witness gave police the information about defendant carrying a gun, which was broadcast over the police dispatch. The government then used the evidence to explain defendant’s subsequent statement to a witness that the police were onto him, which led to his decision to rent a second car. Defendant was convicted and he appealed.
* Holding: The court held that the statement from the anonymous witness was not offered for the truth of the matter asserted. Instead, the evidence was offered to show why the police made the broadcast and began to investigate defendant. Such evidence was relevant to show the reason for defendant’s later actions in stating that the police were onto him, and in changing to a different rental car. Accordingly, the district court’s ruling was affirmed.
• 801-Hearsay - Statements/Truth of Matter
U.S. v. Martinez, 06-3882 (12/1/09)
> Defendant was a doctor charged with unlawful distribution of controlled substances and health care fraud. Prior to trial, the government contacted an expert who prepared a video showing how to properly perform medical techniques that defendant was charged with improperly performing. The video was played at trial during the testimony of a second expert witness, who used the video to explain how defendant’s activities were improper. Defendant objected to the video on hearsay grounds, the district court admitted the evidence, and defendant was convicted. Defendant appealed.
* Holding: First, the court held that both the verbal and nonverbal portions of the video were statements for purposes of FRE 801(a). The court ruled that nonverbal conduct may be a statement where it is “intended by the person as an assertion.” The court found that the expert was requested by the government to make the video for the purpose of demonstrating proper performance of medical procedures. As such, the court concluded that the video was intended to be an assertion. Second, the court held that the video was offered for the truth of the matter asserted. Although the government argued that the video was just used as an aid for the testifying expert, the court found that both the government’s opening and closing, as well as the testimony of the expert, demonstrated that the video was used to show the jury the proper method of performing the procedures and to show that defendant’s methods were improper. Thus, the video was offered for its truth. Accordingly, the court found that the video was hearsay. Nonetheless, the court ruled that admission of the tape was harmless given the strength of the testimony provided by the live expert and the other evidence in the case. Therefore, defendant’s conviction was affirmed.
• 801(d)(1) - Prior Inconsistent Testimony
U.S. v. Mayberry, 06-2239 (8/21/08)
> Defendant was charged with being a felon in possession of a firearm. At trial, the government presented the testimony of an informant who claimed loss of memory regarding defendant’s activities. In response, the government introduced excerpts from the witness’ grand jury testimony, pursuant to FRE 801(d)(1). Defendant was convicted and he appealed.
* Holding: FRE 801(d)(1) permits a party to introduce a prior sworn statement if it is inconsistent with the declarant’s testimony at trial. The court held that “limited and vague recall of events, equivocation, and claims of memory loss” can constitute prior inconsistent statements. In the case, the court found that the government’s use of the grand jury statements fell squarely within FRE 801(d)(1). Further, the court ruled that the prior statements did not violate the Confrontation Clause because the witness was subjected to cross examination at trial. Thus, defendant’s conviction was affirmed.
• 801(d)(2)(A) - Statement of Party Opponent
U.S. v Vasilakos, 05-3166 (11/21/07)
> Defendant was a manager for a company, and was charged with conspiracy and mail fraud for defrauding the company out of large sums of money. In order to support his good faith defense at trial, defendant offered hearsay statements of company officials about the goals and policies of the company. The district court refused to admit the statements, defendant was convicted, and he appealed.
* Holding: Pursuant to FRE 801(d)(2)(A), a statement is not hearsay if it is “offered against a party” and is the party’s own statement. In the case, the court held that the company was not a party to the criminal prosecution of defendant. Thus, the statement was not admissible as a party admission, and the district court ruling was affirmed.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Franklin, 03-2439 (7/19/05)
> Defendant was charged with robbing an armored truck, and at trial, the government introduced the hearsay statements of a codefendant who had told a friend about the robbery, and implicated defendant. The district court admitted the hearsay statements through the testimony of the friend and defendant challenged the statements on appeal, claiming that they were not statements between coconspirators during the course of a conspiracy pursuant to FRE 801(d)(2)(E).
*Holding: The court held that the statements were admissible under Rule 801(d)(2)(E). Under the coconspirator exception, hearsay statements are admissible if they are made between coconspirators during the course of the conspiracy, and are made in furtherance of such conspiracy. Even though the hearsay statements in the case were made after the robbery had already been committed, the court held that statements were “in furtherance” of a conspiracy if they were meant to facilitate concealment of the criminal accomplishments, identify participants and their roles, or keep a coconspirator abreast of the other coconspirators’ activities. Thus, the court found admission of the statements proper and affirmed the conviction.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Martinez, 03-3833 (11/17/05)
> Defendants were charged in a drug conspiracy and at trial the government introduced an anonymous letter warning the conspirators as to who was cooperating with the government and to be careful in their dealings. Defendants challenged admission of the letter on appeal.
* Holding: Under FRE 801(d)(2)(E), an anonymous letter may be admitted if the proponent proves by a preponderance of the evidence that a conspiracy existed between the author and the defendant, and that the statement was made in the course of the conspiracy. The court found that the letter itself established that it was written by a member of the conspiracy, and that, even though it was clearly written by a conspirator who was already in jail, it furthered the conspiracy’s objectives by warning the continuing participants to avoid the cooperating defendants in conducting their enterprise. Accordingly, admission of the evidence was proper.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Payne, 05-1280 (2/13/06)
> Defendant was a store clerk who agreed to accept counterfeit bills for the sale of merchandise. Defendant was subsequently indicted for counterfeiting. At trial, a cooperating witness testified about out of court statements made by a codefendant who had planned the passing of the counterfeit bills with defendant. Defendant challenged on appeal that the statements should have been excluded as hearsay.
* Holding: The court found that the statements of the codefendant were properly admitted under FRE 801(d)(2)(e), the coconspirator exception. Under such section, the proponent of the statement must prove that a conspiracy existed, that defendant was a member, and that the statements were made in furtherance of the conspiracy. To establish the elements, the district court may rely on the statements themselves, but the statements must be supported by corroborating evidence. In the case, the court first found that the conspiracy existed and that defendant was a participant. This finding was based upon the fact that the codefendant discussed his “contact” at the store who would accept the bills. The statements were corroborated by the fact that defendant was at the store, the codefendant talked to him, and defendant accepted obviously counterfeit bills. The court further found that the statements were made in furtherance of the conspiracy. The court noted that statements “in furtherance” of a conspiracy include statements made to conceal an ongoing conspiracy. Accordingly, the admission of the statements was affirmed.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Lopez-Medina, 05-5891 (8/25/06)
> Defendant was charged with a drug conspiracy and at trial the government introduced “drug ledgers” that were found in defendant’s residence. The district court held that the ledgers were admissible as coconspirator statements under FRE 801(d)(2)(E). Defendant was convicted and appealed.
* Holding: Pursuant to the court’s prior holding in Enright, the government must prove three elements in order to introduce coconspirator statements under FRE 801(d)(2)(E): (1) a conspiracy existed; (2) defendant was a member; (3) the statements were made during the course of the conspiracy. Applying the plain error standard, the court first held that evidence established that a conspiracy existed based upon the numerous opened drug wrappings, digital scales, and heat-sealing equipment found in the residence, combined with the suspicious visits of two individuals to the residence. Second, the court ruled that defendant was involved in the conspiracy based upon the fact that the drug ledgers and other items were found in his residence. Third, the court found that the statements in the ledger were obviously made during the course of a drug conspiracy. Accordingly, admission of the evidence was affirmed.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Gonzalez, 06-3303 (8/30/07)
> Defendant was charged with possession of cocaine with intent to distribute. Defendant drove a car that contained a kilogram of cocaine in a secret compartment to a drug transaction. Defendant’s trial defense was that he did not know the drugs were in the car. In response, the government offered (1) testimony that defendant had accompanied a coconspirator on several occasions to other drug transactions, and (2) hearsay statements from the drug supplier (defendant’s uncle) indicating that defendant would act as a Spanish translator for the drug transaction, and requesting that the coconspirator introduce defendant to the drug trade. Defendant objected to the hearsay statements of the drug supplier, the district court admitted the statements, and defendant appealed.
* Holding: Before coconspirator statements are admissible under FRE 801(d)(2)(E), the court must find by a preponderance of the evidence that a conspiracy existed, defendant was a participant, and the statements were made in the course of the conspiracy. The hearsay statements themselves may be used as proof of the conspiracy, but they are not sufficient in and of themselves to establish the existence of the conspiracy. In the case, the court held that the conspiracy was proven by the hearsay statements themselves and the other evidence offered by the testifying coconspirator that defendant participated in additional drug transactions. Further, the court found sufficient evidence that the statements were made in furtherance of the conspiracy. Thus, the district court ruling was affirmed.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Conrad, 05-5319 (11/9/07)
> Defendant was charged with conspiracy and possession of meth with intent to distribute. At trial, the government argued that defendant participated in the conspiracy by allowing others to use her home to store and distribute drugs. Part of the government’s evidence included the hearsay testimony of a coconspirator that he gave defendant money to allow the use of defendant’s home. The district court admitted the hearsay evidence, defendant was convicted, and she appealed.
* Holding: In order to admit hearsay evidence under FRE 801(d)(2)(E), the government must prove by a preponderance of the evidence that the defendant was a member of the conspiracy and that the statement was made in furtherance of the conspiracy. The court first held that the government provided sufficient evidence that defendant was a member of the conspiracy. The court found, however, that the district court did not properly determine whether the statement was made in furtherance of the conspiracy. Specifically, the district court failed to establish when the statement was made, thus is was not clear whether the statement was made during the conspiracy. Additionally, the district court found that the government made a “prima facie” showing of conspiracy, instead of the required preponderance of the evidence standard. The court ruled that these errors were not harmless because the evidence against defendant was not otherwise strong, and the government relied heavily on the hearsay statement to obtain defendant’s conviction. Accordingly, the case was remanded for a proper determination as to whether the hearsay statement was made during the conspiracy. The court instructed the district court that if it found that the hearsay statement was made during and in the course of the conspiracy, the conviction would stand. If, however, the statement was improperly admitted, defendant was entitled to a new trial.
• 801(d)(2)(E) - Coconspirator Exception
U.S. v. Young, 07-5600 (1/30/09)
> Defendant was charged with participating in a marijuana conspiracy and at trial the government presented hearsay statements of conspirators who collected drug debts for defendant. The district court admitted the testimony under the coconspirator exception, defendant was convicted, and he appealed. Defendant argued on appeal that the “coconspirators” were actually in a buyer-seller relationship and that the hearsay exception was inapplicable.
* Holding: In order to admit evidence under the coconspirator exception, the proponent of the evidence must prove by a preponderance of the evidence that (1) the conspiracy existed, (2) the defendant was a member, and (3) the statements were made in furtherance of the conspiracy. Although noting it was a close question, the court held that the evidence established more than a buyer-seller relationship between defendant and the coconspirators. The transactions involved large amounts of marijuana, and defendant had “fronted” cocaine to them. This evidence indicated that they were, in fact, involved in a conspiracy together. Further, the court found that any error was harmless because the evidence against defendant was strong. Accordingly, defendant’s conviction was affirmed.
• 801(d)(2)(E) - Coconspirator Statements
U.S. v. Warman, 05-4416 (8/18/09)
> Defendant was charged for participating in a drug conspiracy with members of the Outlaw Motorcycle Club. At trial, the government sought to introduce numerous hearsay statements of coconspirators that implicated defendant in the conspiracy. The district court admitted the statements, but did not make findings regarding the required factors under FRE 801(d)(2)(E). Defendant was convicted and he appealed.
* Holding: In order to admit coconspirators statements under FRE 801(d)(2)(E), the district court must find the following: (1) the conspiracy existed; (2) the defendant was a member; and (3) the coconspirator statements were made during and in furtherance of the conspiracy. The court held that the district court’s error in failing to make the requisite findings was harmless because the government had introduced sufficient evidence to satisfy the three elements. The court found that the government introduced evidence to establish that the conspiracy existed and that defendant was a member. The court noted that the evidence linking defendant to the conspiracy included testimony of coconspirators and significant circumstantial evidence. Finally, the court ruled that all but two of the hearsay statements were made in furtherance of the conspiracy. Regarding the two statements, the court held that they were “mere idle chatter or bragging in the context of a casual conversation,” instead of statements in furtherance of the drug trafficking enterprise. Nonetheless, the court found that admission of the two improper statements was harmless. Accordingly, defendant’s conviction was affirmed.
• 803(1)/(2) - Present Sense Impression/
Excited Utterance
U.S v. Penney, 05-6821 (8/7/09)
> Defendant was charged with attempting to kill a federal agent for shooting an agent during the execution of a search warrant. At trial, defendant attempted to introduce the statement he made shortly after his arrest in which he stated: “you guys don’t understand, I thought I was being robbed.” The district court held that the statement qualified neither as a present sense impression nor an excited utterance, and excluded the evidence. Defendant was convicted and he appealed.
* Holding: In order to qualify as an excited utterance, a statement must be made while the declarant is under the stress of excitement caused by the event. Likewise, to be a present sense impression, the statement must be made while perceiving an event or immediately thereafter. The court emphasized that both hearsay exceptions require that the statement be made before the declarant has time to contrive or misrepresent. Because defendant’s statement to the agents was not made until ten to fifteen minutes after the shooting incident and after the EMT vehicles had arrived, the court found that neither exception applied and the district court ruling was affirmed.
• 803(1)/(2) - Present Sense Impression/
Excited Utterance
U.S. v. Davis, 08-1349 (8/20/09)
> Defendant was charged with being a felon in possession of a firearm and during his trial the government introduced a 911 call made by an eyewitness. The witness stated that she had seen defendant riding in a car with a two guns in the past five minutes. The witness later stated that she exaggerated about seeing two guns, and that it had only been 30 seconds to a minute between seeing defendant and her 911 call. Defendant objected to the 911 recording as hearsay, the district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: First, the court held that the 911 call was properly admitted as a present sense impression under FRE 803(1). Whether the time between the call and observing defendant was 30 seconds or 5 minutes, the court determined it was “sufficiently contemporaneous” to satisfy the requirements of FRE 803(1). Second, the court held that the 911 call was also properly admitted as an excited utterance under FRE 803(2). The court found that seeing defendant with a gun (where the witness had heard that defendant committed a murder the week before) was a sufficiently startling event. Further, the court ruled that the 911 call was made before the witness had time to contrive or misrepresent. The court dismissed the fact that the witness originally misrepresented to the dispatcher that defendant had two guns; the court ruled that this fact went to the credibility of the statement, not its admissibility. Finally, the court found that the witness was still under the stress of seeing defendant with the gun at the time of the call. Accordingly, defendant’s conviction was affirmed.
• 803(2) - Excited Utterance
U.S. v. Hadley, 03-5838 (12/6/05)
> During defendant’s trial for being a felon in possession of a firearm, the government introduced hearsay statements of a witness, made at the scene of the crime, that defendant was going to shoot her with a gun. Defendant objected to the statements, but the district court admitted them as excited utterances pursuant to FRE 803(2). Defendant appealed.
* Holding: A court must consider three factors in determining whether a statement is an excited utterance: (1) there must be an event startling enough to cause nervous excitement; (2) the statement must be made before there is time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of the excitement. The court held that given the quickness of the response time of the officers to the 911 call, the apparent distress of the witness at the scene, and the seriousness of the domestic dispute, the court found that the witness’ statements were properly characterized as excited utterances, and thus admissible.
• 803(2) - Excited Utterance
U.S. v. Arnold, 04-5384 (5/18/07)
> Defendant was charged with being a felon in possession of a firearm. The charge was based, in part, on the statements of a witness who failed to appear for trial. The district court admitted three hearsay statements of the witness wherein she claimed that defendant pointed a gun at her. The statements were (1) a 911 call, (2) the witness’ statement to police when the police arrived, and (3) the witness’ statement to police when defendant arrived. All three statements were admitted pursuant to FRE 803(2) as excited utterances. Defendant challenged the admission of these statements on appeal. The original panel held that the statements were not excited utterances and reversed the district court ruling. The government requested rehearing en banc.
* Holding: The en banc court held that each of the three statements qualified as excited utterances. To satisfy the excited utterance exception, three requirements must be met: (1) an event startling enough to cause nervous excitement; (2) the statement must be made before there is time to contrive; and (3) the statement must be made while the person is still under the stress of the event. The court found that each of the witness’ three statements met the requirements for excited utterance and accordingly affirmed the district court’s ruling.
• 803(2) - Excited Utterance
U.S. v. Guthrie, 07-6215 (3/2/09)
> Defendant was charged with car-jacking and firearms offenses. During trial, the government introduced a 911 call the victim made while riding in the car-jacked vehicle with defendant and during a high speed chase with the police. Defendant argued that the 911 call did not meet the excited utterance exception because the victim was calm in an earlier 911 call. The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: In order to satisfy the excited utterance exception, the proponent of the evidence must establish the following: (1) an event startling enough to create nervous excitement; (2) the statement was made before there was time to contrive or misrepresent; and (3) the statement was made while under the stress caused by the event. In the case, the court found that the high speed chase began after the victim’s first 911 call, but before the second. Thus, the court ruled that the intervening high speed chase was a sufficient startling event to trigger the excited utterance exception. Accordingly, defendant’s conviction was affirmed.
• 803(4) - Doctor/Patient Exception
U.S. v. Kappell, 04-1333 (8/9/05)
> During defendant’s trial for child sex abuse, the government introduced statements of abused children through a psychotherapist. Defendant objected to the evidence, arguing that statements to psychotherapists are not covered under FRE 803(4) because they are not physicians. The district court admitted the testimony and defendant appealed.
* Holding: The court ruled, deciding an open question in the circuit, that statements to a psychotherapist may be covered under FRE 803(4) as a hearsay exception as long as the primary purpose of the statements are for medical diagnosis or treatment. The psychotherapist testified that she was hired to evaluate the children’s mental health and provide a diagnosis. Under the circumstances, the court concluded that the statements were for the purpose of medical diagnosis under FRE 803(4) and upheld the district court’s admission of the testimony.
• 803(6) - Business Records
U.S. v. Baker, 05-3336 (8/15/06)
> Defendant was charged with multiple conspiracy and mail fraud counts and at trial the government introduced postal records, through the testimony of a postal inspector, to show that defendant used the post office boxes in question. The district court admitted the records under FRE 803(6) and defendant appealed, claiming that the postal inspector was not qualified to introduce the records.
* Holding: In order to admit records under the business records exception of FRE 803(6), the proponent must present the testimony of the custodian or “other qualified witness.” The court held that the postal inspector, although not the custodian of the records, met the requirements of a “qualified witness.” He had been a postal inspector for 14 years, knew the inner workings of the post office, and testified to his familiarity with the various details of the postal records in question. Thus, the court affirmed the district court ruling admitting the records.
• 803(6) - Business Records Exception
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was charged with health care fraud in relation to her practice of providing patients with partial doses of cancer medicine, but billing the federal health care program for full doses. During trial, the government introduced computer generated records of various drug companies to establish defendant’s purchases of the drugs. Defendant objected to the evidence as improper summary evidence, but the district court admitted the records under the business records exception. Upon defendant’s conviction, she appealed.
* Holding: The court held that a general business ledger showing sales of drugs constituted a business record for purposes of FRE 803(6), even though it was computer generated. The court noted that FRE 803(6) permits admission of a “date compilation” in any form. Thus, the records were properly considered business records, as opposed to “summary evidence” under FRE 1006. Accordingly, the district court’s ruling was affirmed.
• 803(18) - Learned Treatise
U.S. v. Martinez, 06-3882 (12/1/09)
> Defendant was a doctor charged with unlawful distribution of controlled substances and health care fraud. Prior to trial, the government contacted an expert who prepared a video showing how to properly perform medical techniques that defendant was charged with improperly performing. The video was played at trial during the testimony of a second expert witness, who used the video to explain how defendant’s activities were improper. Defendant objected to the video on hearsay grounds, and the government argued that the video was a learned treatise under FRE 803(18). The district court admitted the evidence, defendant was convicted, and he appealed.
* Holding: FRE 803(18) provides a hearsay exception for a published treatise that is established as a reliable authority by testimony or otherwise. The court held that the video did not qualify as a learned treatise because it was prepared specifically for the government at trial, was not subjected to peer review or scrutiny, and was not made primarily for professionals in the field, with the reputation of the video’s creator at stake. Thus, the court found that the video did not have the “sufficient assurances of trustworthiness” required to be a learned treatise. Accordingly, the court held that the video did not meet the learned treatise exception. Nonetheless, the court found that admission of the video was harmless error (see supra) and defendant’s conviction was affirmed.
• 804(b)(1) - Prior Testimony Exception
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was charged with health care fraud and at trial he attempted to introduce the hearsay statement of a codefendant. The statement was in the form of an affidavit that was sworn before government agents during their interview of him. The district court excluded the prior statement, defendant was convicted, and he appealed.
* Holding: FRE 804(b)(1) permits the admission of a hearsay statement where the witness is unavailable, the statement was prior testimony at either a hearing or deposition, and the opposing party had an opportunity and similar motive to develop the testimony at the prior hearing or deposition. In the case, the court first held that the affidavit taken by the government agents did not qualify as testimony from a hearing or deposition. Second, the court ruled that the government agents interviewing the codefendant would not have the same motive as the prosecutor at trial. Accordingly, the hearsay exception was not applicable and the district court ruling was affirmed.
• 804(b)(3) - Statement Against Interest
U.S. v. Rayborn, 05-6742 (7/2/07)
> Defendant and his accountant were indicted for various fraud offenses. When they were being processed upon their arrest, the accountant said to defendant’s wife, “I’m sorry I got y’all down here.” At trial, defendant moved to introduce the accountant’s hearsay statement to his wife, under FRE 804(b)(3) as a statement against penal interest. The district court excluded the hearsay evidence and, upon his conviction, defendant appealed.
* Holding: The court held that any error in the exclusion of the evidence was harmless. The court found that (1) there was substantial evidence of defendant’s guilt, (2) defendant had ample opportunity at trial to point the finger at his accountant, (3) defendant’s wife did testify in his defense, and the jury evidently did not believe her testimony, and (4) the hearsay statement itself was vague and not a “slam dunk” admission of guilt. Accordingly, the district court’s exclusion of the evidence was affirmed.
• 804(b)(3) - Statement Against Interest
U.S. v. Johnson, 08-1662 (9/18/09)
> Defendant was charged with conspiracy, bank robbery, and murder during a bank robbery. During trial, the government introduced a recorded statement of a codefendant who confessed and implicated defendant to a cell mate. Defendant was convicted and he appealed.
* Holding: In order to qualify as a statement against penal interest, pursuant to FRE 804(b)(3), the declarant must unavailable, the statement must be adverse to the declarant’s penal interest from the perspective of a reasonable person, and corroborating circumstances must establish that the statement is trustworthy. In the case, the court first found that the codefendant’s unavailability was established by the likelihood that he would take the Fifth Amendment on the witness stand. Second, the court ruled that the codefendant’s statements were clearly contrary to his penal interest because he confessed to a bank robbery and capital murder. Third, the court ruled that the statement was trustworthy because it was recorded, the codefendant trusted his cell mate, he did not know he was being recorded, and he did not try to shift blame to defendant. Accordingly, admission of the evidence was affirmed.
• 806 - Impeachment of Hearsay Declarant
U.S. v. Arnold, 04-5384 (5/18/07)
> Defendant was convicted of being a felon in possession of a firearm based on the statements of an unavailable witness who claimed that defendant threatened her with a gun. Before the trial, defendant’s investigator interviewed the witness and, according to the investigator, the witness recanted the story about defendant having the gun. The investigator also prepared an affidavit that was signed by the witness, but the affidavit did not specifically state that the witness recanted the part of the story about the gun. At trial, defendant attempted to offer both the affidavit and the testimony of the investigator. The district court excluded the evidence as hearsay, and defendant’s counsel never argued the admissibility of the evidence as impeachment, under FRE 806. Upon his conviction, defendant appealed.
* Holding: Because defendant did not offer the evidence as impeachment under FRE 806, the court applied plain error analysis. Although the court acknowledged that the evidence would have been admissible for impeachment of an unavailable hearsay witness, the court found no plain error because the exclusion of the evidence did not seriously affect the fairness of the proceeding. The court found that the credibility of the witness’ alleged recantation was questionable because of the discrepancy between the investigator’s proposed testimony and the witness’ affidavit (which was prepared by the same investigator). Thus, the court found no plain error and affirmed the district court’s exclusion of the evidence.
• 806 - Impeachment of Hearsay Evidence
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was charged with health care fraud based upon his misrepresentation on health care forms that he had seen patients and determined that carotid artery ultrasound tests were medically necessary. At trial, defendant attempted to introduce the hearsay statement of a codefendant. In the statement, the codefendant admitted that defendant did not know that he falsely represented his nurse (who saw some of the patients) to be a physician’s assistant (PA). Defendant argued that the statement should be admitted to impeach the codefendant’s statement on an undercover video. The district court excluded the evidence, defendant was convicted, and he appealed.
* Holding: FRE 806 permits a party to impeach hearsay evidence in any manner that would be allowed if the hearsay declarant had testified at trial. In the case, the court found that the hearsay statement was not inconsistent with the comments on the undercover video. In the video, the codefendant stated that defendant sometimes examined patients himself, and at other times sent a PA under this license. The court ruled that it was “entirely possible” that defendant sent a PA under his license and was unaware that the codefendant represented his nurse to be a PA. Accordingly, exclusion of the evidence was affirmed.
• 807 - Residual Hearsay Exception
U.S. v. Hunt, 06-6300 (4/11/08)
> Defendant was charged with health care fraud. At trial, defendant offered a hearsay statement of a codefendant in which the codefendant indicated that defendant had done nothing wrong, and that defendant did not know about misrepresentations that were made by the codefendant. Defendant argued that the statement should be admitted under the residual hearsay exception. The district court excluded the evidence, defendant was convicted, and he appealed.
* Holding: Pursuant to FRE 807, hearsay evidence that is not covered by FRE 803 or 804 is admissible if it meets the following requirements: (1) it has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point than any other evidence that could reasonably be procured; and (4) its admission would serve the general purposes of the rules and the interests of justice. In the case, the court held that the hearsay evidence lacked the kind of guarantees of trustworthiness that would make it admissible. Although the statements were made by a codefendant who implicated himself in the same statement, there were no corroborating circumstances indicating its trustworthiness. Accordingly, the district court ruling was affirmed.