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Univ. of South Carolina School of Law

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Friday, January 23, 2009

None of Your Business: Fifth Circuit Opinion In Kroger Robbery Appeal Raises Fascinating Hearsay Issue

The recent opinion of the Fifth Circuit in United States v. Dunigan, 2009 WL 117418 (5th Cir. 2009), raises a fascinating evidentiary issue, even though it was one that the Fifth Circuit did not need to address.

In Dunigan, shortly after a bank, located in a Kroger grocery store, opened for business, a man entered it, jumped over the top of the counter, pointed a weapon at a bank employee's face, and demanded that she give him the money.  A witness claimed that after the man stole the money, the witness saw a white Dodge Avenger with a license plate containing the letters "H" and "Q" leaving the area.

FBI Agent Kleinlein subsequently investigated the robbery, and when he searched the area surrounding the store for a white Dodge Avenger, he locating one with the license plate H01XHM.  Thinking that the witness had misidentified the "Q," Kleinlein contacted the Texas Department of Transportation ("TxDOT") and found out that there was no white Dodge Avenger registered in Texas with a "Q" in the license plate.

Kleinlein thereafter obtained a search warrant for the vehicle and the apartment of its registered owner, Samantha Mattingly, who was Jonas N. Dunigan's girlfriend. When Kleinlein searched the apartment, he found several items similar to items that witnesses saw on the robber during the robbery (including a Kroger shopping bag), and "Dunigan's physical appearance was also similar to the descriptions given by witnesses."

Kleinlein was later charged with robbery and convicted after, inter alia, Kleinlein testified about his investigation, including his call to TxDOT.  Thereafter, he appealed, claiming, among other things, that the district court erred by allowing Kleinlein's testimony regarding his call to TxDOT because it was inadmissible hearsay.

The district court had allowed for the admission of Kleinlein's testimony pursuant to Federal Rule of Evidence 803(7), which provides an exception to the rule against hearsay for:

     "[e]vidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of [the business records exception], to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness."

The Fifth Circuit, however, correctly found that it did not need to address this issue because "[h]earsay must be used 'to prove the truth of the matter asserted,' and Kleinlein was testifying only to describe how he eventually located Dunigan, not to prove that there were no Dodge Avengers with a 'Q' on the licnse plate."  Thus, because Kleinlein's testimony was not hearsay, the court did not need to apply a hearsay exception.

But if Kleinlein's testimony were in fact hearsay, the Fifth Circuit would have needed to apply a different hearsay exception than the one applied by the district court.  That is because Federal Rule of Evidence 803(7) covers the absence of entries in the records of a private business.  Meanwhile the Rule that covers the absence of entries in the records of public offices or agencies such as TXDOT is Federal Rule of Evidence 803(10).  So, at first blush, one might say that Kleinlein's testimony would clearly have been admissible under Federal Rule of Evidence 803(10) because it concerned the absence of an entry in the records of a public office or agency.

But, just as Federal Rule of Evidence 803(7) is the converse of the business records exception to the rule against hearsay, Federal Rule of Evidence 803(10) is the converse to Federal Rule of Evidence 803(8), the public records exception to the rule against hearsay, which provides an exception to the rule against hearsay for:

     "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

Under this Rule, courts typically admit Department of Transportation records/reports under Federal Rule of Evidence 803(8)(C) in civil actions and against the Government in criminal cases. See, e.g., Robbins v. Whelan, 653 F.2d 47, 52 (1st Cir. 1981).  But, based upon the plain language of Federal Rule of Evidence 803(8)(C), such DOT records/reports are inadmissible against a defendant in a criminal trial.

So, this is the fascinating evidentiary issue.  Obviously, Federal Rule of Evidence 803(8)(C) precludes the admission of DOT records/reports against a defendant in a criminal trial, but does its converse, Federal Rule of Evidence 803(10), preclude the admission of evidence of the absence of entries in DOT records/reports?  I would think that because the Rules serve similar interests and because of the connection between the two Rules, Federal Rule of Evidence 803(10), should preclude the admission of this evidence.  But the Fifth Circuit didn't have to address this issue, and I'm not aware of any court that has.

[EDIT:  Willliam A. Woodruff of the Campbell University School of Law wrote me and noted that DOT records would likely be covered by Federal Rule of Evidence 803(8)(A) or Federal Rule of Evidence 803(8)(A), not Federal Rule of Evidence 803(8)(C).  And he is right.  The Advisory Committee's Note to Rule 803 states that Rule 803(8)(C) will cover "the so-called 'evaluative' report" while Rule 803(8)(B) will govern cases such as T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957), which dealt with the "affidavit of [a] White House personnel officer that [a] search of records showed no employment of accused, charged with fraudulently representing himself as an envoy of the President."  What happened in the Kroger robbery appeal seems analogous to the situation in T'Kach.  Of course, that raises the question of whether what happened in the Kroger case consisted of "matters observed by police officers and other law enforcement personnel," which would then make the evidence inadmissible under Rule 803(8)(b), which doesn't apply in criminal cases.]

-CM    

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