Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH October 3, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-5091
ELGA EUGENE HARPER,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:22-CR-00170-SJM-1) _________________________________
Jami Johnson, Assistant Federal Public Defender (Jon M. Sands, Federal Public Defender with her on the brief), Phoenix, Arizona, for Defendant – Appellant.
Leena Alam, Assistant U.S. Attorney (Clinton J. Johnson, U.S. Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff – Appellee. _________________________________
Before BACHARACH, MORITZ, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
Elga Eugene Harper was tried before a jury and convicted of kidnapping
and assaulting a single victim, E.F., in Indian country. The indictment, Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 2
predicated on federal jurisdiction, alleged Harper is an Indian as defined under
federal law. Harper was sentenced to life in prison and judgment was entered
on July 27, 2023. Harper timely appealed and now raises four issues.
Harper argues that the district court erred by: (1) admitting a hearsay
verification letter from the Choctaw Nation of Oklahoma to prove Harper’s
Indian status as it was inadmissible hearsay and not a business record;
(2) excluding the expert testimony of Dr. Geoffrey Loftus on the issue of trauma
and memory; (3) permitting the Government’s forensic nurse to provide
unnoticed expert testimony regarding the science of trauma and memory
without expertise; and (4) failing to properly instruct the jury regarding
kidnapping and asportation of the victim.
We have jurisdiction under 28 U.S.C. § 1291. Finding merit in the first
issue on appeal, we reverse the convictions and sentence and remand for the
district court to vacate the judgment and conduct further proceedings.
I
Harper was tried and convicted by a jury of kidnapping and sexually
assaulting a 72-year-old semi-retired Episcopal nun in her home in Tulsa,
Oklahoma. The victim, E.F., testified that she met Harper in 2021 when he
asked if he could cut the grass in her yard. E.F. continued to hire Harper to
make small repairs to her home because he needed work. Due to his unhoused
2 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 3
status, E.F. and her neighbors would allow him into their homes to use the
phone or restroom.
A few months before the sexual assault, E.F. hired Harper to repair a
light fixture in her home, but he was unable to complete the task the same day
and left. On the following Tuesday, Harper returned to E.F.’s home; however,
E.F. informed Harper that he could not make the repairs in her home that
night because she was teaching a class that evening and needed to prepare.
E.F. testified that Harper became angry and stated that he needed to complete
the task. E.F. and Harper argued about the date he was supposed to have
returned, E.F. paid Harper for the work he previously performed, and Harper
“stormed out.” R.IIIA at 470–71.
On May 2, 2022, Harper returned to E.F.’s house at approximately 10:00
or 10:30 p.m. E.F. testified that Harper acted cheerful and as if the two had
not argued. That evening, Harper asked E.F. to be his counselor; however, E.F.
declined because they did not “get off to a good start” and Harper subsequently
left. Id. at 471–72.
On May 4, 2022, at approximately 2:00 p.m., Harper returned to E.F.’s
home, asked if she had any work for him, and requested to use the bathroom.
E.F. informed Harper that she did not have any work for him but let him inside
to use the bathroom. Soon after entering E.F.’s home, Harper attacked her,
fashioned a noose out of a cord, placed the noose around her neck, and dragged 3 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 4
her around the house. Over the next four hours, Harper tied E.F. up, sexually
assaulted her multiple times, dropped her on her head and neck when moving
her into the bathroom, and forced her to shower in scalding hot water. Due to
being in shock, E.F. was temporarily paralyzed from her injuries. Harper
moved E.F. to her bedroom where he proceeded to beat her while bound and
ransacked her home for her vehicle’s keys and title. Harper left E.F.’s home at
around 6:00 p.m. E.F. testified that Harper picked up his shorts from the floor,
but she did not see what else he was wearing when he left.
After Harper left, E.F. proceeded to call 911. She described the assault,
her injuries, and identified her attacker as “Elga Harper.” Supp. R.III at 5–6.
E.F. identified Harper as Black during the 911 call.
After leaving E.F.’s home at around 6 p.m., Harper traveled to another
neighbor’s home wearing shorts and a purple robe. The neighbor permitted
Harper to shower, shave, and wash his clothes at his house. Harper stayed at
the neighbor’s home for four hours before being asked to leave because he was
acting nervous and jittery. The next morning—on May 5, 2022—the neighbor
was approached by police officers at his home. He told police that he had
noticed unfamiliar bags in the back of his truck, which he then retrieved and
provided to the police. Police recovered a backpack that contained Harper’s
social security card, E.F.’s business card, a hand-written note that stated
“[c]heck into how I can get [illegible] help for glasses from the tribe,” and a
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partially filled intake form from the Oklahoma City Indian Clinic. Supp. R.II
at 9–10; R.III at 373–74, 491, 495. The police also recovered from the neighbor’s
trash can a set of electric clippers that the neighbor had given to Harper to
shave, the purple robe that Harper was wearing when he arrived at the
neighbor’s home, and E.F.’s car keys.
II
A
Harper was arrested on May 10, 2022, and interviewed by police. Harper
denied assaulting E.F. but admitted that he had entered her home and found
her already bleeding and bound. Harper stated that he began to assist her by
cutting her bindings and looking for her phone to call 911, but then got scared
and left. Harper suggested that E.F. knew his name because he had worked
for her and that there were “multiple gentlemen in the area that may or may
not be of my size, of my color, of my race.” Supp. R.II at 57, 59. On June 7, 2022,
the Government indicted Harper, claiming federal jurisdiction and alleging
that Harper is an Indian, as defined by federal law.
B
Pretrial, the Government filed a motion to exclude the testimony of
Harper’s expert witness, Geoffrey Loftus, Ph.D. The defense proffered Dr.
Loftus as an expert on eyewitness identification and how trauma may impact
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memory when making an identification. On January 18, 2023, the district
court granted the Government’s motion.
The district court determined that Dr. Loftus’s qualifications were
uncontested. Citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1123–26
(10th Cir. 2006), the district court noted that eyewitness identification expert
testimony is admissible in “narrow” and “limited circumstances” such as
“cross-racial identification, identification after a long delay, identification after
observation under stress, and such psychological phenomena as the feedback
factor and unconscious transference.” R.I at 379. The district court determined
that while the case “implicat[ed] cross-racial identification and identification
after observation under stress, the identifications in this case were not made
after a long delay.” Id. The district court, relying upon Rodriguez-Felix,
determined that “[t]his situation is more akin to an ‘evidentiary cornucopia’ of
identification where expert testimony on memory and perception is not
helpful.” Id.
C
Harper’s trial commenced on February 6, 2023. At trial, the Government
presented and attempted to lay the foundation to admit into evidence Exhibit
1, a letter from the Choctaw Nation of Oklahoma verifying Harper’s Indian
status. The letter was on the letterhead of “Choctaw Nation of Oklahoma
CDIB/Trial Membership,” dated January 18, 2023, and signed by Terry
6 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 7
Stephens, Director CDIB/Membership of the Choctaw Nation of Oklahoma.
Supp. R.I at 2. The letter stated that Harper had a Certificate of Degree of
Indian Blood (CDIB) issued by the Bureau of Indian Affairs in 2002 and, since
2011, was an enrolled member of the Choctaw Nation of Oklahoma. A form
attached to the verification letter certified the authenticity of the letter as a
“domestic business record[].” Supp. R.I at 3.
The Government elicited testimony from Tabitha Oakes, an employee at
the Choctaw Nation of Oklahoma and manager of the CDIB and membership
department. Oakes testified that she routinely prepares and oversees the
certificates of enrollment—including researching Dawes records, birth records,
and death records—to establish lineage and membership in the Choctaw
Nation.
Oakes testified that the CDIB is issued by the Bureau of Indian Affairs,
that an individual must have a CDIB to be an enrolled member of the Choctaw
Nation, and that the CDIB records are held in the Choctaw Nation’s vault.
Oakes noted that the enrollment records for the Choctaw Nation of Oklahoma
are kept in the normal and ordinary course of business. Oakes recognized the
Government’s Exhibit 1 as (1) a verification letter by the Choctaw Nation of
Oklahoma that was signed by Terry Stephens, the Director of
CDIB/Membership, and (2) a Certificate of Authenticity that she prepared in
her duties as an enrollment officer and that used the information and resources
7 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 8
of her department. At this point, the Government moved to admit and publish
Exhibit 1 to the jury; however, Harper objected arguing a lack of foundation
and hearsay. The district court summarily overruled Harper’s objection and
Exhibit 1 was admitted into evidence.
Following the admission of Exhibit 1 into evidence, Oakes testified that
the verification letter pertained to Defendant Elga Eugene Harper, stated that
Harper has a Certificate of Degree of Indian Blood, and confirmed that Harper
is an enrolled member of the Choctaw Nation of Oklahoma with a membership
number and issuance date. Harper declined to cross-examine Oakes. The
signatory of the verification letter—Director Terry Stephens—did not testify.
The district court then took judicial notice that the charged events occurred
within Indian country, that the geographic area was not at issue, and that the
factual question of whether the crime occurred in Indian country was
established.
Later during the trial, the Government called Kathryn Bell—a recently
retired forensic registered nurse of the Tulsa Police Department—as a witness
to testify about the injuries sustained by E.F. During the redirect examination,
Nurse Bell testified about the science of memory and memory formation after
trauma. Harper objected, arguing that Bell was not “established as an expert
on the area of memory and that the testimony was not sufficient to qualify her
as an expert.” R.III at 418. The district court concurred, but then asked Bell,
8 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 9
in the presence of the jury, “[i]s there anything in your description of memory
that you just discussed that’s relevant to the question of how [E.F.]
remembered things closer to the event than she did perhaps when you
interviewed her on the 17th of May?” Id.
The district court then permitted Bell to continue testifying on the
process of memory formation and how memory is encoded by the amygdala.
Again, Harper objected, noting that Bell did not have the expertise to give such
testimony. The district court then noted that Harper could take up the issue
during cross-examination and instructed the jury to weigh Bell’s testimony as
a “witness who does have some expertise study background and experience in
these issues but you’ll weigh her testimony as you do within the instructions I
give you.” Id. at 419. Harper proceeded to conduct recross-examination and
elicited from Bell that she is not a doctor, psychologist, or head trauma surgeon
and cannot give an opinion about E.F.’s memory.
D
At the close of the trial, the district court declined to include Harper’s
proposed language in the jury instruction regarding kidnapping and opted to
use the Tenth Circuit’s pattern jury instruction. The district court rejected a
portion of Harper’s jury instruction that stated:
To qualify as a “kidnapping,” there must be more than a transitory holding and more than a detention that occurs during and is inherent in the commission of a separate offense. To qualify as a
9 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 10
“kidnapping,” a detention accompanying another crime must create a significant danger to the victim independent of that posed by the separate offense.
R.I at 404.
On February 9, 2023, Harper was convicted by the jury of four counts:
kidnapping in Indian country, in violation of 18 U.S.C. §§ 1151, 1153, and
1201(a)(2); aggravated sexual abuse in Indian country, in violation of 18 U.S.C.
§§ 1151, 1153, 2241(a); and two counts of assault in Indian country, in violation
of 18 U.S.C. §§ 1151, 1153, and 113(a)(3), (a)(6). Judgment was entered on July
27, 2023, and Harper was sentenced to life in prison as to Counts One and Two
and ten years as to Counts Three and Four, running concurrently. Harper now
timely appeals.
III
Regarding the four arguments or claims of error made by Harper on
appeal, we start first by setting out the standards of review we employ to
consider and decide the issues before us. We then proceed to the merits of the
claims, examining predominantly the first issue because it compels us to grant
Harper relief.
Harper’s first claim is that the district court erred by admitting into
evidence Exhibit 1, the verification letter from the Choctaw Nation of
Oklahoma offered to prove Mr. Harper’s Indian status. Harper argues the
10 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 11
letter was inadmissible hearsay and does not fall under the “business record”
hearsay exception. We agree.
We review legal interpretations of the Federal Rules of Evidence de novo
while evidentiary decisions are reviewed for abuse of discretion. United States
v. Silva, 889 F.3d 704, 709 (10th Cir. 2018). Because this claim involves a
hearsay objection, “our review of decisions admitting statements contested as
hearsay is especially deferential.” United States v. Hernandez, 333 F.3d 1168,
1176 (10th Cir. 2003) (quoting United States v. Edward J., 224 F.3d 1216, 1219
(10th Cir. 2000)). This Court is deferential to the district court because
“hearsay determinations are particularly fact and case specific.” United States
v. Channon, 881 F.3d 806, 810 (10th Cir. 2018) (quoting United States v.
Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005)).
Evidentiary rulings “may constitute an abuse of discretion only if based
on an erroneous conclusion of law, a clearly erroneous finding of fact or a
manifest error in judgment.” United States v. Keck, 643 F.3d 789, 795 (10th
Cir. 2011) (quoting Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1246 (10th
Cir. 1998)). “Even if the court finds an erroneous evidentiary ruling, a new trial
will be ordered ‘only if the error prejudicially affects a substantial right of a
party.’” Id. (quoting Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1049 (10th Cir.
1993)). “In conducting a harmless error review, we review the record de novo.”
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United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994). The Government
bears “the burden of proving that a non-constitutional error was harmless.” Id.
Before diving into the hearsay analysis, we first detour to discuss and
consider the significance of Exhibit 1 as to the elements of the crimes charged.
That is, how and why Harper’s status as an Indian is a jurisdictional predicate
to the entire case.
The General Crimes Act, 18 U.S.C. § 1151, et. seq., delineates which
crimes shall be within the exclusive jurisdiction of the United States and which
crimes shall be secured to the Indian tribes, respectively.1 According to the Act,
Indian status is an essential element of offenses charged and not a mere
technicality. See 18 U.S.C. § 1152; United States v. Simpkins, 90 F.4th 1312,
1317–18 (10th Cir. 2024); United States v. Langford, 641 F.3d 1195, 1200 (10th
Cir. 2011). This Court has adopted a two-part test for determining whether a
case is within the exclusive jurisdiction of federal courts when committed by
an Indian in Indian country. United States v. Prentiss, 273 F.3d 1277, 1280
(10th Cir. 2001) (Prentiss II). In order for a criminal defendant to be subject to
1 For a period of time, 18 U.S.C. § 1152 did not have a descriptive title.
See United States v. Walker, 85 F.4th 973, 979 n.2 (10th Cir. 2023). It is now interchangeably referred to as the General Crimes Act, see Oklahoma v. Castro-Huerta, 597 U.S. 629, 638 (2022), or the Indian Country Crimes Act, see Walker, 85 F.4th at 979 n.2. 12 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 13
§ 1153, the fact finder “must make factual findings that the defendant ‘(1) has
some Indian blood; and (2) is recognized as an Indian by a tribe or by the
federal government.’” Id. (quoting Scrivner v. Tansy, 68 F.3d 1234, 1241 (10th
Cir. 1995)). In this context, it was a question for the jury to make these
findings. United States v. Walker, 85 F.4th 973, 982 (10th Cir. 2023).
Ultimately, the burden falls on the Government to prove beyond a reasonable
doubt Harper’s Indian status. United States v. Diaz, 679 F.3d 1183, 1186 (10th
Cir. 2012); Prentiss, 273 F.3d at 1283.
The Government attempted to meet its burden to prove Indian status by
offering into evidence the verification letter through the testimony of the
custodian, Oakes. Recall from above the verification letter was written shortly
before trial and verified both that Harper had on file a CDIB and was a
registered member of the tribe.
Generally, a CDIB is a self-authenticating domestic public document and
does not require extrinsic evidence of authenticity in order to be admitted as
evidence because it is issued by the U.S. Department of the Interior and bears
its seal. Walker, 85 F.4th at 981–82. Conversely, a tribe’s registration card or
document bearing a tribal seal is not a self-authenticating domestic public
document because it does not contain a seal of the United States or any state,
district, commonwealth, territory, or insular possession of the United States.
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Thus, extrinsic evidence of authenticity is required for a tribal card or
document to be admitted. Id.
Here, the Government did not proffer as evidence Harper’s CDIB to
prove his Indian status. Instead, the Government proffered a letter of
membership issued by the Choctaw Nation of Oklahoma certifying that Harper
had a CDIB that was issued on January 2, 2002, and that he was a tribal
member as of July 29, 2011. Accordingly, the Government was required to
properly authenticate the verification letter and establish its admissibility
under the Federal Rules of Evidence. Because the objection was to hearsay, the
Government had to prove either the letter was not hearsay or that it fell within
an exception to the hearsay rule.
While this appeal was pending, this Court revisited the issue of
authentication of Indian tribal certificates and noted that Indian tribal
certificates that include “the degree of Indian blood, or [that] membership in a
tribe that will not accept members without a certain degree of consanguinity”
satisfy the Prentiss II test. United States v. Wood, 109 F.4th 1253, 1257 (10th
Cir. 2024) (quoting Diaz, 679 F.3d 1187). An Indian tribal certificate, however,
is not admissible without authentication. Id. (citing Fed. R. Evid. 902(1), (2)).
In Wood, we noted two routes for authentication:
a proponent proceeding under Rule 803(6) must demonstrate a tribal record of an “act, event[, or] condition” (1) “was made at or near the time by—or from information transmitted by—someone
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with knowledge”; (2) “was kept in the course [of the tribe’s] regularly conducted activity”; and (3) “the making of the record was a regular practice of that activity.” Fed. R. Evid. 803(6)(A)-(C). The proponent can make this showing through “the testimony of the custodian or another qualified witness, or by a certificate that complies with Rule 902(11).” Fed. R. Evid. 803(6)(D). To authenticate a tribal document under the Rule 902(11) certificate route, a proponent must give an opposing party reasonable pre- trial written notice sufficient to allow the opposing party “a fair opportunity to challenge” both the tribal record and certificate of authenticity. Fed. R. Evid. 902(11); see also Fed. R. Evid. 902 advisory committee’s note to 2000 amendment (providing that this written notice requirement, which notice must be provided a reasonable time prior to trial, exists “to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration”).
Id. at 1258 (footnote omitted).
Harper argues on appeal that the verification letter was inadmissible
hearsay and not subject to any recognized exception within the Federal Rules
of Evidence. Specifically, Harper argues that the letter was offered as evidence
to prove the truth of the matter asserted—his Indian status. See Fed. R. Evid.
801(c). “Hearsay is not admissible unless any of the following provides
otherwise: a federal statute; these rules; or other rules prescribed by the
Supreme Court.” Fed. R. Evid. 802. Records of a regularly conducted activity,
however, “are not excluded by the rule against hearsay.” Fed. R. Evid. 803(6).
Under this exception:
the proposed document must “(1) have been prepared in the normal course of business; (2) have been made at or near the time
15 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 16
of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made trustworthy.”
United States v. Rogers, 556 F.3d 1130, 1136 (10th Cir. 2009) (quoting United
States v. Ary, 518 F.3d 775, 786 (10th Cir. 2008)). Accordingly, the document
will be admissible if:
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
Rule 902(11) echoes this requirement for self-authenticating evidence:
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record--and must make the record and certification available for inspection--so that the party has a fair opportunity to challenge them.
Fed. R. Evid. 902(11) (emphasis added). As we will address below, the record
makes it clear that the Government did not properly establish the verification
letter’s foundation and trustworthiness under Rule 803(6). The Government
did not address—either in its briefing or at oral argument—whether it gave
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Harper reasonable notice of its intent to offer the verification letter or make it
available for inspection, but neither did Harper raise lack of notice as an
alternative claim of error.
Harper submits that the verification letter is not an original and cannot
be admitted under the business records exception because (1) it was created
less than three weeks before trial, (2) was not made at or near the time of the
events recorded, (3) the author of the letter (i.e., Director Terry Stephens) was
not made available to testify as to the creation of the verification letter, and
(4) the letter was not kept in the ordinary course of business.
“An ‘original’ of a writing or recording means the writing or recording
itself or any counterpart intended to have the same effect by the person who
executed or issued it.” Fed. R. Evid. 1001(d). “For electronically stored
information, ‘original’ means any printout--or other output readable by sight--
if it accurately reflects the information.” Id. “Copies” are “produced by methods
possessing an accuracy which virtually eliminates the possibility of error,” and
as such “are given the status of originals.” Fed. R. Evid. 1001(d) advisory
committee’s notes to 1972 proposed rules. “Copies subsequently produced
manually, whether handwritten or typed, are not within the definition.” Id. As
such, we are not persuaded that this analysis turns upon whether the
verification letter was an original or a copy because it is a completely different
document than the CDIB.
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That being said, “[n]ot every item of business correspondence constitutes
a business record.” Echo Acceptance Corp. v. Household Retail Servs., Inc., 267
F.3d 1068, 1091 (10th Cir. 2001). “It is well-established that one who prepares
a document in anticipation of litigation is not acting in the regular course of
business.” Id. (quoting Timberlake Const. Co. v. U.S. Fidelity & Guar. Co., 71
F.3d 335, 342 (10th Cir. 1995)). Such documents are “dripping with
motivations to misrepresent.” Id. (quoting Certain Underwriters at Lloyd’s,
London v. Sinkovich, 232 F.3d 200, 204 n.2 (4th Cir. 2000)). “The rationale
behind the business records exception is that such documents have a high
degree of reliability because businesses have incentives to keep accurate
records.” United States v. Gwathney, 465 F.3d 1133, 1140 (10th Cir. 2006)
(quoting Timberlake Const. Co., 71 F.3d at 341). They are accurate “because
the information is part of a regularly conducted activity, kept by those trained
in the habits of precision, and customarily checked for correctness, and because
of the accuracy demanded in the conduct of the nation’s business.” Timberlake
Const. Co., 71 F.3d at 341 (quoting United States v. Snyder, 787 F.2d 1429,
1433–34 (10th Cir. 1986)). Consequently, “[i]f any person in the process is not
acting in the regular course of business, then an essential link in the
trustworthiness chain fails, just as it does when the person feeding the
information does not have firsthand knowledge.” United States v. McIntyre,
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997 F.2d 687, 699 (10th Cir. 1993) (quoting 2 McCormick on Evidence, § 290 at
274 (John William Strong, ed., 4th ed. 1992)).
When introducing evidence under Rule 803(6), “courts generally assume
that the business ‘record’ itself must be introduced, not solely testimony about
the contents of a qualifying record.” 30B Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 6868 (2024). To be admissible, a
business record must “be based on the personal knowledge of the entrant or of
a person who had a business duty to transmit the information to the entrant.”
Rogers, 556 F.3d at 1136 (quoting Ary, 518 F.3d at 786). “Evidence to prove
personal knowledge may consist of the witness’s own testimony.” Fed. R. Evid.
602. “The foundational requirement for personal knowledge ‘is not difficult to
meet.’” United States v. Duran, 941 F.3d 435, 448 (10th Cir. 2019) (quoting
United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014)). “The
district court considers only whether ‘a rational juror could conclude based on
a witness’s testimony that he or she has personal knowledge of a fact.’” Id.
(quoting Gutierrez de Lopez, 761 F.3d at 1132). “A court should exclude
testimony for lack of personal knowledge ‘only if in the proper exercise of the
trial court’s discretion it finds that the witness could not have actually
perceived or observed that which he testifies to.’” Walker, 85 F.4th at 980–81
(quoting Gutierrez de Lopez, 761 F.3d at 1132).
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Here, the Government attempted to cover its bases by including on the
certificate of authenticity a declaration that the verification letter was a
domestic business record and that the authentication satisfied both Rules
803(6) and 902(11). The Government counters that the district court did not
abuse its discretion in admitting the verification letter because (1) the
verification letter does not constitute inadmissible hearsay because it is
derived from enrollment records kept in the normal and ordinary course of
business per Rule 803(6), and (2) Oakes testified that (a) she had personal
knowledge of the verification letter and the facts within it and (b) she
personally prepared the certificate of authenticity that accompanied the
verification letter.
Specifically, the Government argues, quoting United States v. Channon,
881 F.3d 806, 810–11 (10th Cir. 2018), that because the verification letter
“reflected the information contained in the enrollment records, it qualified as
an ‘original’ of the electronically stored information, and the fact that it was
presented in a different form did not ‘eliminate[] the business records
exception.’” Resp. Br. at 33–34. According to the Government, the verification
letter was created in the ordinary course of business and is an original because
it “reflected the information contained in the enrollment records”; therefore,
the Government argues that it did not need to provide the entirety of the
Choctaw Nation’s enrollment records or Harper’s CDIB because it could
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present the information in the form of a letter. Id. at 33. These arguments are
unavailing for several reasons.
In Channon, the computer-generated records were spreadsheets
containing OfficeMax records maintained by a third party, reflecting
information in OfficeMax’s electronic database of enrollment and transaction
activity for fraudulent customer rewards accounts. 881 F.3d at 809. The data
in the spreadsheets was machine-generated and voluminous. Id. at 811. This
Court determined that machine-generated non-hearsay fell outside the
purview of Federal Rule of Evidence 801 because the declarant was not a
human and the data in the spreadsheets accurately reflected the information
in the database. Id. Thus, we held that the spreadsheets were considered
originals under Rule 1001(d).2 Id. at 810. This Court further opined that the
records would be admissible under Rule 803(6) because the records at issue
were prepared and transferred by OfficeMax daily and not for the purpose of
litigation. Id. at 811.
2 Even if the verification letter was an original of electronically stored
information, the Government would still be required to comply with Federal Rule of Evidence 1006 and “make the originals or duplicates available to the other party.” United States v. Channon, 881 F.3d 806, 810 (10th Cir. 2018) (citing Fed. R. Evid. 1006). Presumably, that would still require the Government to produce the CDIB to the defendant before trial or produce the document in court. 21 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 22
Ultimately, the Government fails to persuade this Court that the
Choctaw Nation of Oklahoma’s tribal records were machine-generated and
voluminous or that it could not present Harper’s CDIB as evidence—nor can it
make such an argument as prior caselaw establishes that the CDIB is self-
authenticating. See Walker, 85 F.4th at 981–82. The Government also cannot
establish that the verification letter was created in the regular course of
business and not for the purpose of litigation. Indeed, the letter was issued on
January 18, 2023, and the trial commenced on February 6, 2023. Nor did
Oakes’s testimony establish that the verification letter was a business record
because her testimony was derivative of the letter itself, of which there was a
preserved hearsay objection. Finally, Director Stephens was not present to
testify at trial about the contents of the verification letter. At bottom, the
district court abused its discretion in admitting the verification letter because
the document was hearsay, not subject to any exception under the Federal
Rules of Evidence, and not properly authenticated.
Having found the district court abused its discretion in admitting the
verification letter into evidence, we next consider whether this error is
harmless. “If a party objects to a district court’s [evidentiary] ruling based
solely on the Federal Rules of Evidence, we review for nonconstitutional
harmless error.” Walker, 85 F.4th at 982 (quoting United States v. Ledford, 443
22 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 23
F.3d 702, 707 (10th Cir. 2005)). The Government bears the burden of proving
by a preponderance of the evidence that the substantial rights of the defendant
were not affected. Id.; see Flanagan, 34 F.3d at 955.
The Government argues that Harper cannot show that he was prejudiced
by the district court’s abuse of discretion because (1) Harper does not suggest
that his CDIB and enrollment information in the verification letter was false
or questionable and (2) the evidence at trial included a partially completed
medical history form from the Oklahoma City Indian Clinic and a page of
handwritten notes referencing getting “help for glasses from the tribe.” Resp.
Br. at 35. The burden is upon the Government, not Harper, to prove Harper’s
Indian status beyond a reasonable doubt, and it is an essential element of each
count of which he was convicted. Prentiss, 273 F.3d at 1283. The remaining
evidence recovered in Harper’s backpack does not satisfy Prentiss II because
the form and notes do not establish that Harper has some Indian blood and is
recognized as an Indian by a tribe or by the federal government. Id. at 1280.
Accordingly, the Government’s harmlessness arguments fail as a matter of
law. Because the error applies to all four counts and negates an essential
element in each count, the only proper remedy is for this Court to reverse the
convictions because an element of each crime was not proved by legal and
competent evidence beyond a reasonable doubt.
23 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 24
Because this Court reverses on the first issue, we decline to analyze in
full the remaining arguments on appeal. However, we note two points about
the other claims made by Harper in this appeal.
In his second claim, Harper argued the district court erred by excluding
the expert testimony of Dr. Loftus, who was qualified to testify about the effect
of trauma on the memory of eyewitnesses. More to the point, Harper argued
the district court misread Rodriguez-Felix to convert “the narrow
circumstances” it discusses that may lead to the admission of expert testimony
about eyewitnesses into a multifactor test wherein the proponent must satisfy
each element for the expert testimony to be admissible. 450 F.3d at 1124.
In Rodriguez-Felix, we rejected a per se rule excluding expert testimony
on the reliability of eyewitness identifications. Rather, we acknowledged the
circumstances that have been “held sufficient to support the introduction of
expert testimony” on eyewitness identification “have varied,” and we went on
to explain those circumstances. Id. at 1124. Without examining the district
court’s analysis or deciding how Rodriguez-Felix applies to the prospective
testimony of Dr. Loftus, we simply acknowledge it as a guidepost of controlling
law and note that, on its face, the circumstances it mentions are not an
exhaustive list or a line of hurdles that must all be cleared for the expert’s
testimony to be admissible.
24 Appellate Case: 23-5091 Document: 96-1 Date Filed: 10/03/2024 Page: 25
In his fourth claim, Harper argues that the district court erred by relying
upon our Pattern Criminal Jury Instruction § 2.55 for the federal offense of
kidnapping. Subsequent to the trial, we decided United States v. Murphy, 100
F.4th 1184 (10th Cir. 2024). In Murphy, we held that “to sustain a kidnapping
conviction under § 1201, the government must offer evidence showing that the
defendant held the victim for an appreciable period of time.” Id. at 1196. Our
pattern jury instructions lag behind our decisions. We note that Murphy’s
holding and analysis apply and should be incorporated into the jury
instructions for kidnapping in cases going forward.
IV
We are mindful and sympathetic to the trauma endured by E.F. as the
victim of these crimes. However, governing law dictates the decision reached
in this case.
The district court erred by admitting hearsay documents into evidence
to prove Harper’s Indian status. This error was not harmless because, without
the admission of this evidence, one jurisdictional element of each crime
charged was lacking. We REVERSE the convictions and sentence and
REMAND with instructions to the district court to vacate the judgment and
conduct further proceedings consistent with this decision.