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Tuesday, October 28, 2008

Hold On To My Receipt: Seventh Circuit Finds Photos & Receipt Were Properly Admitted In Weapons Appeal

The recent opinion of the Seventh Circuit in United States v. Miller, 2008 WL 4694925 (7th Cir. 2008), contains a few interesting evidentiary rulings.  In Miller, Leroy Miller took in Ricky Fines as a boarder at his farm, and they allegedly bought, refurbished, and sold many weapons while Fines lived in Miller's house.  When federal agents conducted a search of Miller's farm in April 2004, they found three weapons in the house and 31 in a shed nearby.  A jury subsequently convicted Fines, a former felon, of possessing weapons despite his prior conviction, in violation of 18 U.S.C. Section 922(g)(1) and Miller of aiding and abetting Fines' illegal possession.

On his appeal, Fines raised two arguments.  First, he claimed that the trial court erred in admitting two pictures of him, saluting, while sitting in a chair under a gun rack.  He argued that these pictures did not depict the condition of the room when the agents searched it.  The Seventh Circuit, however, found this argument to be "beside the point," because Fines would be

     "guilty if he possessed guns any time during five years (the period of limitations) before the indictment. The pictures are relevant because they show that guns and Fines were in the room together, which supports an inference that he possessed them."

I agree with the Seventh Circuit on the relevance point, and, assuming that a witness with knowledge authenticated the photograph by testifying that they accurately depicted Fines at some point in the five years before the indictment, see United States v. Richardson, 562 F.2d 476, 479 (7th Cir. 1977), they were properly admitted.

Fines also claimed that the trial court erred in admitting a folder of receipts showing that Fines had ordered and paid for gun parts.  The Seventh Circuit again disagreed, finding that

     "[t]he receipts were hearsay if offered for the truth of the sellers' (implied) assertions that the parts had been delivered as ordered, but to the extent they embodied Fines's statements they were admissible under Fed.R.Evid. 801(d)(2) as admissions, and to the extent that they reflected the sellers' business records they were admissible under Fed.R.Evid. 803(6)."

Starting with this last conclusion, Federal Rule of Evidence 803(6) states in relevant part that:

     "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted 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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Most courts have found that receipts are admissible under Federal Rule of Evidence 803(6). See, e.g., United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993) (finding a property receipt for a gun to be admissible as a business record).  This rulings seem logical to me, and thus, assuming that the receipt was properly authenticated, it was properly admitted.

The most interesting question for me, however, is whether the receipt could have been admitted as an admission under Federal Rule of Evidence 801(d)(2).  And, to my surprise, many courts have found that a party's mere possession of a receipt constitutes an adoptive admission under Federal Rule of Evidence 801(d)(2)(B), which indicates that "[a] statement is not hearsay if...[t]he statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth." See, e.g., United States v. Paulino, 13 F.3d 20-24 (1st Cir. 1994) (citing cases).  Other courts have adopted a "possession plus" approach, under which possession of a receipt constitutes an adoptive admission "so long as the surrounding circumstances tie the possessor and the document together in some meaningful way." Id.

I disagree with either approach.  Why?  Well, here's an example of a classic adoptive admission.

    -William and Dan are talking with Fred at 2:00 on October 25th when William says that Dan just shot Vince in Skokie.  Dan says nothing in response.  Dan has in effect, adopted William's statement.

And the reason he is deemed to have adopted it is that because "an innocent defendant would have responded in order to deny the statements made rather than acquiescing in such statements by remaining silent after hearing and understanding those statements." United States v. Lafferty, 503 F.3d 293, 305 (3rd Cir. 2007).

Conversely, if William merely said, "Dan and I just came from Skokie," and Dan were now on trial for murdering Vince in Skokie at 1:30 on October 25th, Dan would not be deemed to have adopted William's statement.  And the reason would be that William's statement was seemingly innocuous and not overtly incriminatory.  In other words, Dan could have known that William and he had just come from Evanston but might not have felt the need to correct William, in contrast to his apparent need to correct the statement that he just shot someone if it were untrue.

And I think the same applies to receipts.  I don't think that most people feel the need to correct incorrect receipts, and I don't think that merely retaining a receipt constitutes an adoption of its contents.  Heck, I just bought a vegetarian burrito at Chipotle this weekend and they rang it up as a chicken burrito.  However, because the two burritos cost the same (actually, the veggie burrito used to cost less before Chipotle raised prices in response to the economy), I didn't say anything because it didn't seem important to correct the cashier.  And while one might say that a receipt for a burrito is non-incriminatory while a receipt for gun parts is somewhat incriminatory (at least for a prior felon), another question to ask is how often people actually look at receipts to verify their accuracy.  My asnwer would be "not very often," and I thus don't see how mere retention of a receipt constitutes an adoption of its contents.

-CM

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