Wednesday, January 21, 2009
Mama Couldn't Be Persuaded: Eleventh Circuit Incorrectly Applies Best Evidence Rule To Attempt To Refresh Recollection
In its recent opinion in United States v. Henry, 2009 WL 73156 (11th Cir. 2009), the Eleventh Circuit properly found that the defendant's mother/tax preparer could not testify regarding the amount of his gambling winnings, but it seemingly did so at least partially on the wrong grounds.
In Henry, Tony Henry appealed his convictions for conspiracy to possess with intent to distribute crack cocaine, possession with intent to distribute a quantity of cocaine base, distribution of crack cocaine, and knowingly opening, using, and maintaining a place for the purpose of manufacturing and distributing cocaine base. And, according to his appellate brief, "[t]he primary focus of [his] defense was that he achieved financial success as a gambler" while "[t]he Government contended he made his money through the sale of narcotics."
At trial, Henry attempted to establish this defense by calling his mother, Karen Simmons, who testified that she was Henry's "tax preparer." While Simmons was on the witness stand,
"Henry sought to introduce into evidence...documents that she stated were photocopies of 'W-2G' forms received from casinos reflecting Henry's gambling winnings for several years. She stated that they were used to prepare Henry's income tax returns."
The district court, however, found that the W-2G forms were hearsay and not covered by the business records exception. Henry thereafter attempted to question Simmons regarding whether she knew, from preparing Henry's tax returns, what amounts of money had been recorded on the forms. But the court again rebuffed this attempt, finding that "to the extent that Henry was asking Simmons about his tax returns, her testimony would be excluded by the best evidence rule." Finally, "[t]he court also refused to allow Henry to use the excluded forms to refresh Simmons's recollection regarding the amount of Henry's gambling winnings."
On Henry's appeal, the Eleventh Circuit affirmed all three of these rulings, and I have no problems with the court's logic regarding the first two rulings. But I disagree with its logic on the third. According to the Eleventh Circuit, the district court acted properly in making its third ruling because Simmons' proposed "testimony regarding her memories of Henry's tax returns was barred by the best evidence rule."
The best evidence rule, Federal Rule of Evidence 1002, states that:
"To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress."
Meanwhile, Federal Rule of Evidence 1003 states that:
"A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."
Thus, you can see why Simmons' proposed testimony regarding what was recorded on Henry's tax returns was inadmissible based upon the best evidence rule because Henry produced neither those returns nor photocopies of them at trial.
But at the same time, Henry did produce photocopies of the W-2G forms at trial, so the best evidence rule should have provided no bar to Simmons being able to testify about Henry's gambling winnings if those forms refreshed her recollection pursuant to Federal Rule of Evidence 612.
But there was another bar to Simmons' proposed testimony. And that is, as noted above, the W-2G forms were hearsay and, apparently, the only basis for Simmons' proposed testimony. Thus, Simmons' proposed testimony itself would have been hearsay and inadmissible. Therefore, the Eleventh Circuit reached the correct conclusion but likely based upon the wrong reasoning.