United States v. Brown, 822 F.3d 966 (7th Cir. 2016), provides insight into introducing summaries of business records into evidence. In Brown, the Seventh Circuit Court of Appeals held that the trial court did not abuse its discretion when it admitted summaries of MoneyGram and Western Union records, even though third parties (i.e., the customers) were involved in creating the records and the records lacked certifications pursuant to Rule 902(11). Brown shows that a party can cure the hearsay problem of a third party’s involvement in creating a business record by using witnesses to testify about their recollections of the underlying transactions in a summary of business records.
Frederick Coleman, Jerry Brown, Darrion Capers, and Nicholas Clark were convicted of drug offenses after a jury trial. The government’s theory was that Coleman and Brown obtained the cocaine, used runners at different locations to cook the cocaine into crack cocaine, and had members of the conspiracy transport the drugs from one city to another. The conspirators used Western Union and MoneyGram to circulate money among sellers, purchasers, and wholesalers. The government used subpoenas to obtain the records of the two companies showing wire transfer transactions between the defendants and others allegedly involved in the conspiracy. Before trial, the defendants filed a motion in limineto exclude MoneyGram and Western Union records that the government planned to use in its case-in-chief. The court denied the defendants’ motion in limine.
The lead investigator in the case created summary exhibits from the subpoenaed MoneyGram and Western Union records. The summaries grouped transactions by sender and listed the amount of money sent, the date of the transaction, the sender’s name and address, the recipient’s name, and the agency from which the funds were sent. The exhibits included the sender’s phone number and recipient’s address for some transactions. Government witnesses testified that the summary exhibits were generally consistent with their recollections of the drug transactions in which they had engaged with the defendants.
The government subsequently moved to admit the actual exhibits through the lead investigator. The district court admitted the exhibits as summaries of business records pursuant to Rules 803(6), 902(11), and 1006 of the Federal Rules of Evidence. Federal Rule of Evidence 1006 allows a proponent of evidence to use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court, provided that the proponent makes the content available to the other party. Federal Rule of Evidence 803(6) allows admission of hearsay documents that record a “regularly conducted activity” where: (A) the records are made at or near the time of the activity by—or from information transmitted by—someone with knowledge; (B) the records are kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; (C) making the record is a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification; and (E) neither the source of the information nor the method or circumstances of preparation indicates a lack of trustworthiness. Federal Rule of Evidence 902(11) identifies certified domestic records of a regularly conducted activity as self-authenticating where the custodian or other qualified person does the certifying in compliance with a federal statute or Supreme Court rule.
On appeal, the defendants argued that the involvement of a third party in creating the MoneyGram and Western Union records—namely, the customer making the wire transfer—took these records outside the scope of Rule 803(6). Citing United States v. Emenogha, 1 F.3d 473, 484 (7th Cir. 1993), the Seventh Circuit noted that third-party involvement is not inevitably fatal. In Emenogha, the court found that additional sources of corroboration can cure the hearsay problem of a third party’s involvement in creating a business record. There, the defendant argued that bank records of drug-money transactions purportedly conducted by him were inadmissible because an imposter might have been impersonating him at the bank. The Emenogha court found this argument unavailing because the bank president testified that he recognized the defendant as a customer, and the bank’s regular practice was to request an identification and account number before completing a transaction.
The Seventh Circuit found no abuse of discretion in the district court’s decision to admit the Western Union and MoneyGram records. The Seventh Circuit agreed with the defendants that a Rule 902(11) certification cannot overcome Rule 803(6)’s requirement that the records must be trustworthy. Furthermore, the Seventh Circuit noted that a government witness testified that Western Union and MoneyGram did not require identification for transfers of less than $1,000, meaning that one form of corroboration in the Emenogha case was not present for at least some of the transactions. However, there were other forms of corroboration, including the testimony of witnesses about their recollections of actually conducting the transactions. The Seventh Circuit found that this testimony made up for any deficiency caused by the lack of certifications.
The Seventh Circuit acknowledged that the records and the testimony were not fully consistent. Some witnesses testified that the summaries included some transactions that they recalled conducting and some that they did not. However, the Seventh Circuit found that any inconsistencies went to the weight of the evidence, not its admissibility. See United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013) (finding no abuse of discretion in admission of pharmacy drug purchase records, noting that a driver’s license was required for the purchases and a signature was obtained for many of them, and stating that “Towns was free to make arguments at trial that he was not the actual purchaser of the drugs, but accuracy does not control admissibility”); United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985) (“The determinations [regarding] whether a proper foundation has been laid for application of the business records exception to a particular document and whether the circumstances of the document’s preparation indicate untrustworthiness are within the discretion of the trial court.”).
According to the Seventh Circuit, the government’s use of summary charts that were not fully corroborated by their witnesses may have been “sloppy,” but the evidence was reliable enough to reach the jury. Any further discounting was for the jury to make.
· Michael R. Lied· Howard & Howard Attorneys PLLC· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602· (309) 999-6311· MLied@howardandhoward.com