Crawford Challenge to 18 U.S.C. § 3505 and Fed.R.Evid. 803(6) Rejected

From United States v. Qualls, 2008 U.S. Dist. LEXIS 40375 (E.D.N.Y. May 19, 2008):

Defendant specifically raises a Crawford challenge to the proposed method of authenticating the IG records--by certification of an IG employee pursuant to 18 U.S.C. § 3505. This statute permits the government to authenticate foreign business records by certification by meeting certain requirements. *** Defendant suggests, in light of Crawford, that there are only two permissible procedures for authenticating foreign business records: the testimony at trial of a live witness or a Rule 15 pretrial deposition.

This issue is a matter of first impression in the Second Circuit with implications beyond just the challenged procedure. Certification pursuant to § 3505 is just one option available to litigants to authenticate business records, as set forth in Rule 803(6). A party may demonstrate the foundation or authenticity of a business record by "testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification . . . ." F.R.E. 803(6). Defendant's challenge to § 3505 certifications may be construed more broadly as a general challenge to certifications that dispense with the necessity of live witnesses.

The court finds opinions from other circuits resolving Crawford challenges to the certification methods available for authentication of domestic business records instructive and persuasive. The few circuits to address such challenges have rejected them. See United States v. Adefehinti, 510 F.3d 319, 327-28 (D.C. Cir. 2008) (holding that authentication by a 902(11) certification is permissible under Crawford); United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006) (same); cf. United States v. Jimenez, 513 F.3d 62, 77-80 (3d Cir. 2008) (holding as harmless error the admission of and reliance on 902(11) certifications and other statutory IRS certifications of tax records); United States v. Morgan, 505 F.3d 332, 338-39 (5th Cir. 2007) (per curiam) (recognizing the holdings of other circuits permitting authentication by certification as persuasive).

This court holds that the authentication of foreign business records pursuant to § 3505 does not violate the Confrontation Clause.

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