Tuesday, November 8, 2011
Adoption Stories, Take 5: 5th Circuit Finds Phone Bill Qualified As Business Record, Adoptive Admission
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....
So, can a phone bill qualify as an adoptive admission? The usual answer would be "no," with such a bill usually being admissible as a business record under Federal Rule of Evidence 803(6). Under the odd circumstances in United States v. Beasley, 2011 WL 5103324 (5th Cir. 2011), the answer is "yes."
In Beasley, Rocky Glen Beasley was convicted by a jury of wire fraud and conspiracy to commit wire fraud. His convictions were the result of
the staged theft of his Ford F–150 pickup truck by Stephen Yates. The convictions [we]re premised, in pertinent part, on the fact that he made fraudulent representations in a telephone conversation with a claims adjuster for State Farm Insurance Company denying that he had any knowledge of or involvement with anyone who would have stolen his truck.
The district court admitted, without objection from Beasley, a redacted copy of Beasley's cellular telephone bill that included activity between the dates of December 13, 2006, through January 12, 2007. The redacted bill was accompanied by a certificate of authentication and showed cellular activity only between the dates of December 23 and 24, 2006. The Government later attempted to introduce an unredacted copy of the bill, which the district court excluded on the basis that its veracity had not been authenticated. Later, after the Government established, through Beasley's testimony, that Beasley received the bill copy from the cellular provider, that it was his, and that it accurately reflected his cellular activity, the district court allowed the admission of the bill copy into evidence. The Government used the bill, in part, to show that Beasley and Yates had been in contact via telephone several days prior to the staged theft of Beasley's truck Beasley's truck.
After he was convicted, Beasley appealed, claiming, inter alia, that the admission of the unredacted bill copy was erroneous. The Fifth Circuit disagreed, initially concluding that the phone bill likely qualified as a business record under Federal Rule of Evidence 803(6), with Beasley authenticating the bill through his own testimony. The Fifth Circuit then found that "[t]he exhibit could also reasonably have been admitted under Rule 801(d)(2)(B) or (D)."
I don't understand the court's conclusion that the phone bill could have qualified as an employee admission under Federal Rule of Evidence 801(d)(2)(D). This Rule allows for the admission of statements by certain employees against employers. In this case, there was no employment relationship between the phone company and Beasley, so I don't see how the phone bill could have qualified as an employee admission.
But I do see why the court concluded that that bill could have qualified as an adoptive admission under Federal Rule of Evidence 801(d)(2)(B). Beasley was charged with crimes. He claimed that he had no idea who stole his truck, yet his phone bill showed prior conversations who the man who committed the theft. Normally, a person in Beasley's shoes would have denied that the bill was accurate, but when presented with the bill, Beasley in effect adopted it by saying that it accurately reflected his cellular activity. Therefore, it qualified as an adoptive admission.