Cole v. State

839 S.W.2d 798, 1992 Tex. Crim. App. LEXIS 196, 1990 WL 176357

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 1992
• Docket: 1179-87
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of aggravated sexual assault. See V.T.C.A., Penal Code, Section 22.021. The jury also assessed punishment at twenty-five years in the Texas Department of Corrections.¹ On direct appeal, the Seventh Court of Appeals affirmed appellant's conviction in a published opinion. Cole v. State, 735 S.W.2d 686 (Tex.App.—Amarillo 1987). We granted appellant’s petition for discretionary review on the sole issue of whether the court of appeals erred in holding that the trial court correctly admitted hearsay evidence concerning the results of chemical tests performed by an absent Department of Public Safety chemist pursuant to Rule 803(6) of the Texas Rules of Criminal Evidence (TRCE), commonly known as the business, records exception. We will reverse and remand.

Appellant was tried under the newly promulgated Texas Rules of Criminal Evidence, effective September 1, 1986. At trial, the State sought to introduce hearsay statements contained in a letter report and supplemental letter report from Warren R. Snyder, a chemist-toxicologist employed by the Texas Department of Public Safety in Lubbock. In the report, Snyder disclosed the results of tests conducted upon physical evidence collected at the medical examination of the sexual assault victim.² In the absence of Snyder, James Martin Thomas, the supervising chemist with the same DPS laboratory in Lubbock, was allowed to testify, over appellant’s hearsay objection, as to the tests conducted and the results of the tests shown in the report. The State tendered the evidence under TRCE 803(6).³

In the court of appeals, appellant contended that the admission of this hearsay statement of Snyder through the testimony of Thomas was in contravention of that portion of TRCE 803(8)(B) which prohibits as hearsay “matters observed by police officers and other law enforcement personnel.” ⁴ In support of his proposition, appellant relied primarily upon United States v. Oates, 560 F.2d 45 (2nd Cir.1977), which involved essentially the same facts as the instant case. The court of appeals conceded that

[i]n [the Oates ] opinion, the Court does indeed hold that similar testimony by one government chemist about the report of another government chemist was within the purview of Federal Rule 803(8)(B) [and therefore inadmissible] which is identical in wording to our Rule 803(8)(B).⁵

Cole, 735 S.W.2d at 691. Although it acknowledged the considerable persuasive value of federal decisions construing rules of evidence, the court of appeals nevertheless affirmed appellant’s conviction, emphasizing that TRCE 803(6) “is, in effect, a codification of former article 3737e of the Texas Revised Civil Statutes Annotated (Vernon Supp.1987), the ‘Business Records Act.’ ” Cole, 735 S.W.2d at 691. Relying on cases interpreting the former act, Kent v. State, 374 S.W.2d 671 (Tex.Crim.App.1963) and Coulter v. State, 494 S.W.2d 876 (Tex.Crim.App.1973), the court of appeals recognized that this type of testimony was formerly admissible. Cole, 735 S.W.2d at 691. The court further recognized that at the same time, each individual case must be reviewed to determine “whether the particular record is of such trustworthiness as to guarantee the same protection provided by the constitutional rights of confrontation.” Id. In the court of appeals’ opinion, “testimony such as that challenged here has long been admissible under the ‘Business Records Act,’ and, since Rule 803(6) is a codification of the Act,” the court of appeals found it “consistent to hold that the tendered testimony fell within the ambit of Rule 803(6), and, ... [when] tendered with the necessary indicia of trustworthiness,” such hearsay evidence “is admissible.” Id., at 692. Thus, the court of appeals relied exclusively on former Texas law to interpret TRCE 803(6) and discounted federal law discussing FRE 803(6) and FRE 803(8) since the holding in Oates was based on perceived congressional intent in adopting FRE 803(6) and FRE 803(8). Cole, 735 S.W.2d at 691. We find this analysis incomplete.

To begin with, our Texas Rules of Criminal Evidence, and the Texas Rules of Civil Evidence for that matter, are patterned after the Federal Rules of Evidence, and cases interpreting federal rules should be consulted for guidance as to their scope and applicability unless the Texas rule clearly departs from its federal counterpart. C. Miller, Texas Rules of Evidence: Article V. Privileges, 16 VOICE FOR THE DEFENSE 40 (October 1986); S.H. Clinton, Texas Rules of Evidence: Genesis and General Provisions, 16 VOICE FOR THE DEFENSE 26 (October 1986); Cole, 735 S.W.2d at 691. See also Campbell v. State, 718 S.W.2d 712, 716 (Tex.Cr.App.1986) and Montgomery v. State, 810 S.W.2d 372, note 2, Nos. 1090-88 and 1091-88, delivered May 30, 1990. While deference to precedent interpreting prior Texas evidence law is certainly preferable in developing a consistent body of rules, the Texas Rules of Criminal Evidence were promulgated with an awareness that the new Rules may, at times, overturn pre-Rules decisions in the interest of establishing rules of evidence that would apply as similarly to federal courts as to Texas courts. 33 Goode, Wellborn & Sharlot, Texas Practice Guide to the Texas Rules of Evidence; Civil and Criminal (1988); Senate Interim Study Committee on Federal Rules of Evidence, Minutes of Meeting on March 19, 1982, p. 207.

Rule 803(8) of the Texas Rules of Criminal Evidence states:

Rule 803. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth

(A) the activities of the office or agency, or

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel, or

(C) against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.

Rule 803(8) TEX.R. CRIM.EVID.⁶ Since TRCE 803(8) is worded almost identically to its federal counterpart⁷, a closer examination of federal decisions interpreting FRE 803(8) is warranted.

We agree with appellant that the Second Circuit case of U.S. v. Oates, 560 F.2d 45 (2nd Cir.1977), is particularly instructive in addressing the issue at bar since Oates involves a fact situation almost identical to the facts of the present case. In Oates, the defendant was charged with possession of heroin with intent to distribute. At his trial, the Government was permitted, over defendant’s objection, to admit into evidence documentary exhibits purported to be the official report and accompanying worksheet of the United States Customs Service chemist who analyzed a white powdery substance seized from the defendant’s companion. The documents were admitted through another Customs Service chemist due to the unavailability of the analyzing chemist. The Second Circuit held that the reports so admitted were not within the exception to the hearsay rule created by FRE 803(8), and, as such, were not admissible. Oates, 560 F.2d at 67. In reaching its decision, the Oates court conducted an exhaustive examination of the legislative history surrounding FRE 803(8) and found that it was the clear intention of Congress to make law enforcement and evaluative reports absolutely inadmissible against defendants in criminal cases when the authors of such reports were not available to testify due to the certain collision with the rights guaranteed to an accused by the confrontation clause of the Sixth Amendment. Id.

The court first determined that the documents failed to qualify for admissibility through FRE 803(8)(C) since the absent chemist’s reports were undisputedly reports of “factual findings resulting from an investigation made pursuant to authority granted by law” which the government sought to have admitted against the accused in a criminal case. Id. Furthermore, the court ruled that FRE 803(8)(B) also barred admissibility, though it reached this conclusion “with less confidence” than when it reached the conclusion that the documents were inadmissible under FRE 803(8)(C). The court specifically stated:

... [T]he reports in this case conceivably could also be susceptible of the characterization that they are “reports ... setting forth ... (B) matters observed pursuant to duty imposed by law as to which there was a duty to report.” If this characterization is justified, the difficult question would be whether the chemist making the observations could be regarded as “other law enforcement personnel.” We think this phraseology must be read broadly enough to make its prohibitions against the use of government-generated reports in criminal cases coterminous with the analogous prohibitions contained in FRE 803(8)(C). [Citation omitted.] We would thus construe “other law enforcement personnel” to include, at the least, any officer or employee of a governmental agency which has law enforcement responsibilities. Applying such a standard to the case at bar, we easily conclude that full-time chemists of the United States Customs Service are “law enforcement personnel.”

Oates, 560 F.2d at 67-68.

Other federal decisions have addressed the issue of what are considered “law enforcement personnel.” In United States v. Ruffin, 575 F.2d 346 (2d Cir.1978), the Second Circuit court stated:

[T]here surely can be no question here that IRS personnel who gather data and information and commit that information to records which are routinely used in criminal prosecutions are performing what can legitimately be characterized as a law enforcement function.

Ruffin, 575 F.2d at 356. Compare, however, United States v. Union Nacional de Trabajadores, 576 F.2d 388 (1st Cir.1978), wherein the First Circuit stated:

Appellants argue that Rule 803(8) excludes the return in this case since the United States Marshalls are “law enforcement personnel” and the return relates to “matters observed” by one of them in connection with a “criminal case.” We find no merit in this argument. There is nothing to indicate that Congress meant to cut back upon the common law rule respecting sheriff’s returns. A sheriff or marshall reporting the service of process is not reporting in the capacity of a police observer at the scene of a crime, nor is he ordinarily connected with the case in a law enforcement capacity.

Union Nacional de Trabajadores, 576 F.2d at 391. Finally, in United States v. Hansen, 583 F.2d 325 (7th Cir.1978), cert. denied 439 U.S. 912, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978), the Seventh Circuit held:

It was argued to the trial judge by Steven R. Hansen that the enforcement of the building code was a “quasi-criminal” procedure. It appears that failure to comply with the building code may result in a fine, but not in a criminal conviction. We do not believe we are justified in broadening the interpretation of the rules phrase “police officers and other law enforcement personnel” to include city building inspectors.

Hansen, 583 F.2d at 333.

Applying the Oates standard and the rationale in the preceding cases to the case at bar also leads us to the conclusion that full-time chemists of the Texas Department of Public Safety are “law enforcement personnel” within the meaning of TRCE 803(8)(B). The chemists, Snyder and Thomas, were employed by the Department of Public Safety, which is a governmental agency with law enforcement authority. Thomas, in fact, testified that he considered himself and Snyder “laboratory personnel with a law enforcement agency” or “law enforcement personnel.” The items upon which the tests were conducted were collected by an investigator with the Lubbock County Criminal District Attorney’s office and turned over to the chemists at the Department of Public Safety laboratory. While not all chemists may be so, the chemists in the present case were certainly important participants in the investigative and prosecutorial effort, for, as Thomas testified, as a forensic chemist, his job was to perform tests on “evidence that is admitted to our laboratory concerning a criminal investigation.” Furthermore, as was the case in Oates, the role of the chemists in this instance did not terminate with the completion of the chemical analy-ses and submission of any resulting report, but participation continued until one chemist had testified as a crucial prosecution witness at trial. Cf. Oates, 560 F.2d at 68.

On this point, the State argues essentially that while the DPS chemists in this case may indeed be law enforcement personnel, the reports at issue are nevertheless not precluded as hearsay because “the exception to 803(8)(B) does not apply to law enforcement reports prepared in a routine, non-adversarial setting that record objective observations made as a part of the everyday function of the official or agency, and where there is no motivation on the part of the recording official to do other than mechanically register an unambiguous matter,” citing United States v. Quezada, 754 F.2d 1190 (5th Cir.1985), rehearing denied 758 F.2d 651 (5th Cir.1985). In Quezada, the Fifth Circuit stated:

[A] number of courts have drawn a distinction for purposes of Rule 803(8)(B) between law enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the arguably more subjective endeavor of investigating a crime and evaluating the results of the investigation. See, e.g., United States v. Orozco, 590 F.2d 789, 793-94 (9th Cir.1979) (admitting computer records of license plates on cars crossing the border due to non-adversarial setting in which information was gathered) cert. denied, 439 U.S. 1049, 99 S.Ct. 728, 58 L.Ed.2d 709 (1978); United States v. Union Nacional de Trabajadores, 576 F.2d 388, 390-91 (1st Cir.1978) (admitting reports on firearms serial numbers for Northern Ireland law enforcement agency on basis that they were records of a routine function).

Under this analysis, a warrant of deportation was deemed properly admissible in a § 1326 action in United States v. Hemandez-Rojas, 617 F.2d 533 (9th Cir.1980), cert. denied, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980). The Ninth Circuit there concluded that the notations on the warrant indicating the defendant’s deportation were the result of ministerial, objective observation, and thus had none of the subjective features of reports made in a more adversarial setting, such as an investigation of a crime scene. Id., at 535.

We find the reasoning of these cases persuasive. This circuit has recognized that Rule 803(8) is designed to permit the admission into evidence of public records prepared for purposes independent of specific litigation. United States v. Stone, 604 F.2d 922 (5th Cir.1979) (Rule 803(8)(A)). In the case of documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency, the factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observation and investigation of crime are simply not present. Due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter (here, appellant’s departure from the country), such records are, like other public documents, inherently reliable. See Smith v. Ithaca, 612 F.2d 215, 222 (5th Cir.1980) (records trustworthy where recording official has no reason to be other than objective).

Quezada, 754 F.2d at 1194. Thus, some federal circuit courts would attempt to limit the exception in FRE 803(8)(B) to records or reports that are the result of the “more subjective”. endeavor of investigating a crime and evaluating the results of that investigation. Id.8

We believe, however, in this case, like the reports of the Customs Service chemists in Oates, the reports of the chemists for the Texas Department of Public Safety

[were] not “made by persons and for purposes unconnected with a criminal case [but rather they are a direct] result of ... test[s] made for the specific purpose of convicting a defendant[.]” ... It would therefore seem that if the chemist’s report and worksheet here can be “matters observed,” the documents would fail to satisfy the requirements of exception FRE 803(8) for the chemist must be included within the category of “other law enforcement personnel.”

Oates, 560 F.2d at 68, citing State v. Larochelle, 112 N.H. 392, 400, 297 A.2d 223, 228 (1972) (dissenting opinion). The items upon which the tests were performed were collected as part of investigating a crime, and the reports prepared by the DPS chemist were unquestionably a product of evaluating the results of that investigation. Furthermore, and perhaps most importantly, the reports were not prepared for purposes independent of specific litigation, nor were they ministerial, objective observations of an unambiguous factual nature. Therefore, we find that the letter reports in the present case fail to satisfy the requirements of TRCE 803(8)(B), since they constitute “matters observed” by “other law enforcement personnel,” and are therefore inadmissible. Having reached this initial conclusion, we come to the more precise issue in this case, and that is whether hearsay evidence which does not qualify as an exception under TRCE 803(8) may nevertheless qualify under TRCE 803(6) as a business records exception, as the court of appeals held.

This question was first considered in Oates. There, the court “discem[ed that it was] clear legislative intent not only to exclude such documents from the scope of FRE 803(8) but the scope of FRE 803(6) as well.” Oates, 560 F.2d at 68. Relying on, inter alia, the dialogue exchanged during the debates among many of the key legislators involved in proposing the Federal Rules of Evidence, the Oates court reasoned that Congress intended, with FRE 803(8)(B) and (C), absolute inadmissibility of law enforcement and evaluative reports tendered in the absence of the makers of such reports. Id., at 69. The court then concluded:

... [I]f the police and evaluative reports denied the benefit of qualifying under FRE 803(8)(B) and (C) were considered eligible for qualification under FRE 803(6), the so-called business records exception, or under any other exception to the hearsay rule ..., although they would not automatically be admissible, ... [such reports] would be one step closer to achieving admission, and would not be, contrary to [the legislature’s] understanding, definitely “not admissible against defendants in criminal cases.”

Id., at 71.

The Oates court went on to say that while it may be argued that the documents satisfy the requirements of the business records exception, such an argument is viable only “if it is assessed strictly on the basis of the literal language of FRE 803(6) and without reference to either the legislative history or the language of FRE 803(8)(B) and (C).” Id., at 74. Because the court recognized that its function as an interpretive body is to "construe legislative enactments in such a way that the intent of the legislature is carried out,” it stated:

... [I]t was the belief of the Committee of Conference that under the new Federal Rules of Evidence the effect of FRE 803(8)(B) and (C) was to render law enforcement reports and evaluative reports inadmissible against defendants in criminal cases. It is thus clear that the only way to construe FRE 803(6) so that it is reconcilable with this intended effect is to interpret FRE 803(6) and the other hearsay exceptions in such a way that police and evaluative reports not satisfying the standards of FRE 803(8)(B) and (C) may not qualify for admission under FRE 803(6) or any of the other exceptions to the hearsay rule.

Id., at 77 (emphasis original). Thus, the court first considering this issue unequivocally determined that Congress meant to exclude law enforcement and investigative reports against defendants in criminal cases whatever route around the hearsay rule was chosen. Id.

In United States v. Cain, 615 F.2d 380 (5th Cir.1980), the Fifth Circuit followed the Second Circuit and its reasoning in Oates, and expressly stated:

For the reasons set forth in Oates, we conclude that statements inadmissible as public agency reports under Rule 803(8) may not be received merely because they satisfy Rule 803(6) and that section (6) does not open a back door for evidence excluded by section (8).

Cain, 615 F.2d at 382 (escape report made at the Federal Correctional Institute at Texarkana, Texas was improperly admitted against escapee). Furthermore, as appellant points out in his brief, other states have adopted the Oates reasoning in construing their state analogues to FRE 803(6) and (8), and have held that qualification as an exception on the basis of business records should not be an alternative to the inability to qualify as a public records exception. See Llewellyn v. State, 630 S.W.2d 566 (Ark.Ct.App.1982) and State v. Matulewicz, 198 N.J.Super. 474, 487 A.2d 772 (App.Div.1985).

Further consideration of this issue by other federal courts, moreover, has led some circuits to apply a modified version of the Oates reasoning: the limitations of 803(8)(B) and (C) will not be extended to other hearsay exceptions if the maker is produced in court as a witness, subject to cross-examination, since the essential purpose of Congress was simply to avoid un-crossexamined evidence. See United States v. King, 613 F.2d 670 (7th Cir.1980) (restrictions of Rule 803(8) not applicable to Social Security investigative reports admitted as business records under Rule 803(6) where investigators testified); and United States v. Coleman, 203 U.S.App.D.C. 326, 631 F.2d 908 (1980) (narcotics case; not error to admit envelopes with notations identifying substance inside and note cards with descriptions and driver license data where all officers making notations testified).

Having determined that the Department of Public Safety chemist’s reports are barred from admissibility via the exception in TRCE 803(8)(B) as matters observed by law enforcement personnel, we also believe it would be inconsistent with the intended effect of that rule to then allow such evidence to be admitted under TRCE 803(6) as a business record. We are not unaware that in so finding, we may overturn certain decisions interpreting the former Business Records Act, Tex.R.Civ.Stat.Ann., art. 3737e which we agree was intended to be codified by the new TRCE 803(6). However, those decisions were rendered without the need to simultaneously interpret and apply the newly-promulgated TRCE 803(8) which, by its plain language and by the application of decisions interpreting its federal analogue, would now prevent such records from being admitted under circumstances like those in the present case. Although this reading of TRCE 803(6) and (8) may broaden the limitations on qualifying business records, the codification of the Business Records Act in TRCE 803(6) and the introduction of the public records exception in 803(8) were promulgated with an awareness of the legislative intent and interpretive federal caselaw surrounding their federal counterparts. The Texas and federal versions of both rules have virtually the exact same wording, i.e., the Texas rules do not clearly depart from their federal counterparts. Therefore, “in light of applicable federal precedent” is the manner in which they were likely intended to be, and in this case are, construed. See S.H. Clinton, Texas Rules of Evidence: Genesis and General Provisions, 16 VOICE FOR THE DEFENSE 26 (October 1986).

In light of the foregoing, we hold that the absent chemist’s reports in this case were matters observed by law enforcement personnel and were therefore inadmissible as an exception to the hearsay rule via TRCE 803(8)(B). We further hold that TRCE 803(6) should not have served as an alternative route for admissibility of these particular records otherwise barred by TRCE 803(8). Therefore, the admission of the reports in this case as business records under TRCE 803(6) was error.

We therefore reverse the judgment of the court of appeals and remand this cause to that court for a harm analysis pursuant to Tex.R.App.Pro. 81(b)(2).

WHITE, J., concurs in the result. McCORMICK, P.J., and BERCHELMANN, J„ dissent.

1 . The Texas Department of Corrections is now the Texas Department of .Criminal Justice, Institutional Division.

2 . The items submitted for testing were panties, warm-up pants, a warm-up top, a pair of socks, a bra, pubic hair clippings, pubic hair combings, vaginal wash, perineal wash, a swab, and smear slides. The record reflects that the requested analysis was to determine the presence of blood, seminal fluids, spermatozoa, and foreign hair. The record further reflects that although the tests were not conclusive, appellant was nevertheless not excluded from the percentage of the population that could have been a possible donor of the blood, etc.

3 . Texas Rule 803(6) provides:

Rule 803. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

4 . Appellant's hearsay objection at trial was based on this same ground.

5 . The Second Circuit also held that the testimony was barred by Federal Rule of Evidence 803(6), which is also worded identically to our Texas rule. United States v. Oates, 560 F.2d 45, 71 (2nd Cir.1977).

6 . The hearsay exception embodied in these provisions existed at common law, see McCormick, Evidence § 315 (3d ed. 1984) and 1A Ray, Texas Law of Evidence § 1271 (3d ed. 1980), and Texas enacted a comprehensive official records statute in 1951. See Vernon’s Ann.Civ.St. art. 3731a (Supp.1986) (repealed as to civil actions, effective Sept. 1, 1983; repealed as to criminal cases, effective Sept. 1, 1986). However, as noted by the Senate Interim Study Committee on Federal Rules of Evidence, the committee established to propose the set of evidence rules eventually promulgated by the judiciary, this provision was primarily an authentication provision, with hearsay aspects almost as an incidental matter. Senate Interim Study Committee on Federal Rules of Evidence, Minutes of Meeting on March 19, 1982, pp. 192-216. During the committee meetings, members expressed a concern that, under former article 3731a, it appeared that once a document was properly authenticated as being what it purported to be, it was then considered admissible as to the truth of the matters contained therein. Id. The committee noted that this might lead to the untenable result that once any document prepared by a government employee was authenticated, it was admissible against a defendant in a criminal case, possibly in violation of his constitutional rights. Id. Although some members commented that such problems were usually addressed through judicial interpretation, in the interest of providing a set of rules with immediate usability and clarity within the language of the rules themselves, the committee voted to adopt the "federal" version of Rule 803(8) to address hearsay aspects of public or official documents, and left the authentication aspects to other provisions within the rules. Id.

7 . Federal Rule 803(8) is worded as follows: Rule 803. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(A) the activities of the office or agency, or

(B) matters observed pursuant to duty imposed by law as to which there was a duty to

report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(C)in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

8 . Other circuits essentially reach the same conclusion by suggesting that routine activities, not related to a specific investigation, are properly included within Rule 803(8)(A) as activities of the office or agency. See, e.g., United States v. Hardin, 710 F.2d 1231, 1237 (7th Cir.1983), cert. denied 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983) (graph from a DEA statistical report purporting to show the average retail price and purity of illicit cocaine in the United States offered by government to show defendant’s intent to distribute cocaine held admissible under 803(8)(A) despite fact that data was compiled by DEA personnel pursuant to their "statutory mandate to extirpate the drug trade in the United States” since ”[t]he compilation of such information for the nonlitigative purpose of identifying national trends in the illicit drug market provides little incentive for misrepresentation by these agents,” and "the government’s need and obligation to define its regulatory mission with accuracy clothe the report with inherent reliability, while its preparation for congressional review subjects it to public scrutiny for veracity.’’)