Commercial Litigation and Arbitration

Certifications of Business Records as Authentic Do Not Violate Defendant’s Confrontation Rights

United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012):

Whether certifications of business records violate the Confrontation Clause is an issue of first impression for this Court. See, e.g., Weiland, 420 F.3d at 1076 n.13 ("[W]e need express no opinion on whether the Confrontation Clause requires the government to make the custodian of business records available for cross-examination.").

After the Supreme Court decided Melendez-Diaz and Bullcoming, the Tenth Circuit addressed this very issue in United States v. Yeley-Davis, 632 F.3d 673 (10th Cir.), cert. denied, 131 S. Ct. 2172, 179 L. Ed. 2d 951 (2011). In Yeley-Davis, the Tenth Circuit dealt with certificates of authentication of cell phone records. Id. at 680. The Tenth Circuit held that "certificates of authenticity presented under [Federal Rule of Evidence] 902(11) are not testimonial." Id. (citing United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006)). "Because the phone records here were 'created for the administration of [Verizon's] affairs and not for the purpose of establishing or proving some fact at trial' we conclude that they were not testimonial and thus, not subject to confrontation." Id. at 679 (quoting Melendez-Diaz, 557 U.S. at 324). The Tenth Circuit invoked the Supreme Court's distinction "between affidavits created to provide evidence against a defendant and an affidavit created to authenticate an admissible record." Id. at 680 (citing Melendez-Diaz, 557 U.S. at 322-23).

Federal Rule of Evidence 902(11) provides that domestic records that meet the requirements of Rule 803(6)(A)-(C), as shown by the certification of a custodian, are self-authenticating. Similarly, 18 U.S.C. § 3505 provides that, to authenticate foreign business records, the custodian of the record must attest that:

(A) such record was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;

(B) such record was kept in the course of a regularly conducted business activity;

(C) the business activity made such a record as a regular practice; and

(D) if such record is not the original, such record is a duplicate of the original . . . .

18 U.S.C. § 3505(a)(1). These requirements are substantially similar to the requirements of Federal Rules of Evidence 803(6) and 902(11). Without any controlling authority on point, it is arguable that certificates of authentication for foreign records presented under 18 U.S.C. § 3505(a)(1) are analogous to certificates of authentication for domestic records presented under Federal Rules of Evidence 803(6) and 902(11).

Here, the certifications of the foreign business records (mailbox applications and bank records) stated that the records were: (1) created at or near the time of the events they purported to establish, by someone with knowledge of those events; (2) kept in the course of regularly conducted business; (3) made as part of that business's regular practice; and (4) true and correct copies. The certificates satisfy the requirements of 18 U.S.C. § 3505(a)(1) in substance. See United States v. Jawara, 474 F.3d 565, 584 (9th Cir. 2007). Following the reasoning of Yeley-Davis, the certificates authenticated otherwise admissible records. See Melendez-Diaz, 557 U.S. at 324. If so, then the admission of the authenticating certificates for the mailbox applications and bank records would not have violated the Confrontation Clause. Thus, we cannot conclude that the district court plainly erred by admitting the certificates for the foreign business records.

Anekwu argues that the certificates are testimonial affidavits used as "solemn declaration[s] or affirmation[s] made for the purpose of establishing or proving some fact." Id. at 310 (internal quotation marks omitted). However, "the purpose of the certificates here was merely to authenticate the . . . records--and not to establish or prove some fact at trial . . . ." Yeley-Davis, 632 F.3d at 680.

Anekwu also argues that the certificates are testimonial, because they are similar to certificates of the nonexistence of a record, since they are the result of the examination of records. However, a certificate of nonexistence of records is testimonial, because it is "substantive evidence against the defendant whose guilt depend[s] on the nonexistence of the record for which the clerk searched." Melendez-Diaz, 557 U.S. at 323. The certifications of the mailbox applications and bank records were not substantive evidence against Anekwu. Rather, they were used to authenticate records.

Finally, Anekwu argues that the certificates are "representations, relating to past events and human actions not revealed in raw, machine-produced data, . . . meet for cross-examination." Bullcoming, 131 S. Ct. at 2714. However, in Bullcoming, the analyst certified to more than the legal requirements for authenticating a record created for an administrative purpose. Unlike the custodian here, the analyst in Bullcoming certified to the procedures used in a test specifically done to establish or prove past events relevant to a criminal prosecution. See id. at 2713, 2714 n.6.

In sum, we cannot conclude that the district court plainly erred in admitting the certificates of authentication for the foreign public and business records into evidence.

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