United States v. Samaniego

187 F.3d 1222, 52 Fed. R. Serv. 1461, 1999 Colo. J. C.A.R. 5232, 1999 U.S. App. LEXIS 20969, 1999 WL 639146

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 18, 1999
• Docket: 98-6152
• Status: Published

Opinions

MURPHY, Circuit Judge.

Rolando Samaniego was convicted in the United States District Court for the Western District of Oklahoma of 31 drug-related counts. His appeal is primarily addressed to the district court’s admission of several summaries under Federal Rule of Evidence 1006 over his objection that the underlying documents constituted hearsay and the government failed to lay the foundation required for their admission. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSES.

A district judge’s decision to admit evidence is reviewed for an abuse of discretion. See Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1525 (10th Cir.1991). Because evidentiary rulings are within the sound discretion of the district court, this court will reverse only upon a “definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir.1993) (quotation omitted). A district court abuses its discretion if its decision is based upon an error of law. See United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1116 (10th Cir.1998).

At trial, FBI agent Mark Seyler testified at length about his investigation of the drug-trafficking ring in which Samaniego was implicated. A significant part of Agent Seyler’s testimony focused upon summaries he made of subpoenaed telephone records. None of the underlying telephone records were admitted into evidence. The summaries, however, were received as government exhibits 900 through 906 over the objections of defense counsel. Defense counsel objected to their use for several reasons, including the inadmissibility of the underlying documents as hearsay.

Rule 1006 states ■ that summaries are permissible when voluminous evidence “cannot conveniently be examined in court,” and when the evidence upon which the summary is based is made available to the other parties at a “reasonable time and place.” Fed.R.Evid. 1006. The materials upon which the summary is based need not themselves be admitted into evidence. See 6 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 1006.02 (Joseph M. McLaughlin, ed., 1999) [hereinafter Weinstein’s Federal Evidence]. Admission of summaries, however, is conditioned on the requirement that the evidence upon which they are based, if not admitted, must be admissible. See, e.g., Harris, 948 F.2d at 1525 (holding that Rule 1006 “clearly permits the use of a summary of business records provided ‘all of the records from which it is drawn are otherwise admissible’ ” (quoting State Office Sys., Inc. v. Olivetti Corp. of Am., 762 (10th Cir.1985))); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir.1992); Weinstein’s Federal Evidence, § 1006.06[3]. A contrary result would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay. See United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir.1979) (“We do not believe that Congress intended that counsel could abrogate other restrictions on the admissibility— like the hearsay rule — by the use of summaries .... ”).

The telephone records from which the summaries were drawn are indubitably hearsay. The obligation of establishing the applicability of a hearsay exception for these records falls upon the government as the proponent of the evidence. See, e.g., United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir.1989) (burden of proving admissibility of underlying materials is proponent’s). The pertinent hearsay exception for business records, Federal Rule of Evidence 803(6), contains multiple foundational hurdles which must be cleared before the summaries may be admitted. See United States v. Cestnik, 36 F.3d 904, 909-10 (10th Cir.1994). Rule 803(6) requires that the custodian or other qualified witness testify that (1) the records were made contemporaneously with the events and “kept in the course of a regularly conducted business activity,” and (2) “it was the regular practice of that business activity to make the [record].”¹ Fed.R.Evid. 803(6); cf. United States v. Reilly, 33 F.3d 1396, 1414 (3d Cir.1994).

No effort whatsoever was made to establish the foundational requirements of Rule 803(6) for admissibility of the underlying telephone records. Even when faced with a hearsay objection, the government failed to sponsor a single witness or even ask a single question of any witness in order to lay a foundation for application of the business records exception. The district court made an error of law by not requiring the government to lay the requisite foundation or forgo the use of the summaries, and thus abused its discretion in admitting the summaries. See Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co., 71 F.3d 335, 341-42 (10th Cir.1995) (admission of documents not comporting with 803(6) foundational requirements was error).

Such error, however, does not necessarily end the appellate inquiry. Federal Rule of Criminal Procedure 52(a) provides that an error “which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(a); see also United States v. Charley, 176 F.3d 1265, 1281-84 (10th Cir.1999) (inquiring into whether the error had a “substantial influence” on the verdict or whether the court is left in “grave doubt” as to whether the evidence had such an effect (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc))). Although the government makes no assertion whatsoever that the admission of these summaries without adequate foundation was harmless error, this court may in its discretion “initiate harmless error review in an appropriate case.” United States v. Torrez-Ortega, 184 F.3d 1128 (10th Cir.1999) (quotation omitted). In Torrez-Ortega, this court cited with approval three factors suggested by the Seventh Circuit in determining whether an appellate court should address harmlessness when the government has failed to do so: (1) the length and complexity of the record; (2) whether the harmlessness of the errors is certain or debatable; and (3) whether a reversal would result in protracted, costly, and futile proceedings in the district court.² See id. (citing United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.1991)).

The 2350 page record, over half of which constitutes trial transcript from a six-day jury trial, is lengthy. The length of the record is equaled or exceeded by its complexity. Samaniego and his co-defendant were indicted on over 70 counts, all addressed to their alleged participation in a several-dozen member multi-state conspiracy to distribute several tons of marijuana. Thirty of Samaniego’s thirty-one convictions involve discrete and specific transactions with many different co-conspirators, each requiring separate proof.³ The record itself is abysmally inadequate for a harmless-error review. For example, the sole exhibits in the record are the summaries, constituting only 8 of the over 100 exhibits admitted during trial. As a consequence, significant documentary evidence, such as the purportedly consistent travel documents, is missing.

The summaries did not play a small role in the trial. Reference to the summaries is woven throughout the fabric of the government’s closing. The government related the telephone activity in the summaries to travel records, which are not part of the record to review for harmless error, and the testimony of accomplices who had pleaded guilty and whose character was acknowledged by the prosecutor in closing to be questionable.

An unsolicited, unassisted, and undirected harmless-error review of an incomplete record to search for and evaluate independent evidence to support Samaniego’s thirty-one separate convictions would be lengthy, complex, and dangerous. Furthermore, while the government’s brief lists the requirements of Rule 1006, it never even addresses the error in this case, i.e., the failure to establish the admissibility of the underlying telephone records. The government compounds its default by failing to even suggest that the error was harmless, even in the face of the defendant’s preemptive argument in his opening brief that the error was not harmless. This silence on the issue of harmlessness and the failure to provide an adequate record to review suggests acquiescence in reversal. See Giovannetti, 928 F.2d at 226 (stating that government’s failure to address harmlessness when defendant had discussed issue in opening brief suggested that the government acquiesced that any error was prejudicial).

In light of the length and complexity of proceedings, the apparent prominence of the erroneously admitted summaries, and the government’s complete and inexplicable failure to address the issue and provide this court with guidance or even a record, this court declines to exercise its discretion to review the harmlessness of the erroneously admitted summaries. The judgement of the United States District Court for the Western District of Oklahoma is REVERSED and this matter is REMANDED.

1 . In certain circumstances, a foundation for admissibility can be established by judicial notice of the nature of the business and "the nature of the records as observed by the court,' particularly in the case of bank and similar statements.” United States v. Johnson, 971 F.2d 562, 571 (10th Cir.1992) (emphasis added) (quotation omitted). Unlike Johnson, the record here is not "replete with circumstances demonstrating the trustworthiness of the documents.” Id. None of the underlying documents was ever admitted; there is no indication that the district judge ever saw them; and the record fails to justify their inclusion in the class of records commonly viewed as particularly trustworthy, such as bank records. Finally, consistent with the government failing to even acknowledge the existence of a hearsay issue, see infra, the government has at no time suggested judicial notice as á means to satisfy the foundational requirements.

2 . It is unclear what the third factor contributes to a court’s decision in determining whether to exercise its discretion to sua sponte address the issue of harmlessness. Without eviscerating the doctrine, cost and potentially protracted proceedings cannot preclude reversal if an error was not harmless. Moreover, a court could conclude that reversal would be futile only by undertaking the very harmless error review it seeks to ascertain whether it should conduct. Additionally, it is difficult to imagine how a court could conclude that reversal would be futile if it has already concluded under the second Giovannetti factor that the harmlessness of the error is not certain. Perhaps confusion about what the third factor contributes to the analysis has caused this and other courts to merely reference but not apply it. See United States v. Torrez-Ortega, 184 F.3d 1128, 1136-37 (10th Cir.1999); United States v. Pryce, 938 F.2d 1343, 1348 n. 4 (D.C.Cir.1991) (Williams, J., separate opinion) (citing Giov-annetti favorably but stating that “[t]he role of the third factor is unclear”); see also United States v. McLaughlin, 126 F.3d 130, 135 (3rd Cir.1997) (even though reversal would be "costly,” the complexity of the record and the uncertainty of the harm warranted vacating conviction). Nevertheless, depending upon the facts, the third factor may simply be irrelevant in cases such as this.

3 . Samaniego was also convicted on conspiracy to possess with intent to distribute marijuana from 1994 to 1997, in violation of 21 U.S.C. § 841(a)(1).