Wednesday, December 16, 2009
Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence.
The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:
Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.
Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:
I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."