Wednesday, May 8, 2013
In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness. Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.
The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6). The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.
The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes. Defendant argued that for this reason, the records were not business records - records kept for a business purpose. The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business. The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business." Slip Op. at 5.
Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights. The majority rejected this argument also. Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.
The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason. The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.
This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.