Wednesday, February 13, 2008
Open The Door, ATF: Eighth Circuit Finds That ATF Form 4473 Is Inherently Trustworthy For Rule 807 Purposes
In United States v. Banks, 2008 WL 80577 (8th Cir. 2008), the Eighth Circuit determined that ATF Form 4473 is "inherently trustworthy" and thus presumptively admissible under Federal Rule of Evidence 807, the residual hearsay exception, even if it isn't admissible as a business record under Federal Rule of Evidence 803(6). In Banks, Clarence Frazier Banks was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). Id. at *1. While executing a narcotics search warrant, police talked with Banks, who told them that his name was Andre Stevens. See id. At trial, the prosecution introduced into evidence an ATF purchase form (ATF Form 4473) which indicated that a pawn shop in Colorado sold a semi-automatic pistol to a man named "Andre Stevens." Id.
On appeal, Banks claimed that the trial court erred by admitting this ATF form because it constituted inadmissible hearsay. See id. at *6. The Eighth Circuit agreed with Banks that the ATF form was not admissible as a business record under Federal Rule of Evidence 803(6), which states, inter alia, that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...." The problem with the ATF form was that "the government did not call a witness from the pawn shop who was familiar with its record-keeping practices." Id.
The Eighth Circuit, however, noted that "Rule 807 allows for the admission of hearsay 'not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness.'" There are five requirements for admissibility under Rule 807, with the first being "that the evidence have circumstantial guarantees of trustworthiness." The Eight Circuit noted that Banks did not contest that the ATF form met requirements two through five and thus confined its analysis to the first requirement.
On that count, the court explained that, unlike other businesses, pursuant to 27 C.F.R. Section 478.124(a), "a firearms dealer is required to record all of its sales on Form 4473." Id. at *7. On this form, "[s]pecific information must be collected, including the buyer's name, sex, address, date and place of birth, height, weight, race, citizenship status, and a certification that the buyer is not a person prohibited from possessing a firearm." Id. Furthermore, "[a] dealer must maintain Form 4473 in an indexed manner for no less than 20 years after the date of sale....Upon demand, a dealer must make available its records for inspection by ATF officers...Failure to comply with these provisions may result in the dealer losing its license to sell firearms." Id.
The Eighth Circuit thus concluded that the contents of a Form 4473 are "inherently trustworthy" based upon "the ATF regulations requiring proper record keeping practices." Id. I agree with this conclusion and find it to be consistent with findings in other cases that business documents not meeting the technical requirements of Federal Rule of Evidence 803(6) ares still admissible under Federal Rule of Evidence 807 when there is no indication that the documents are unreliable. See, e.g., United States v. Laster, 258 F.3d 525 (6th Cir. 2001).