EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, September 24, 2012

Foreign Affairs: 9th Circuit Finds Foreign Record Certification Not "Testimonial" For Confrontation Clause Purposes

Federal Rule of Evidence 902(11) provides that the following is self-authenticating:

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, is a Rule 902(11) certification "testimonial," meaning that the preparer of such a certification must testify at a criminal trial to satisfy the Confrontation Clause? And what about a certification for a foreign record? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Anekwu, 2012 WL 4125861 (9th Cir. 2012).

In Anekwu, Henry Anekwu was charged with mail fraud, wire fraud, and telemarketing fraud against the elderly. After he was convicted, Anekwu appealed, claiming that the district court erred by allowing for the admission of certifications connected to public bank records in Canada, such as the following:

I Hereby Certify that the documents annexed hereto and impressed with my Seal of Office and relating to CAPITAL AWARD INC., which was dissolved under section 257 of the Company Act on June 14, 2002, are true copies of the public documents whereof they purport to be copies, and that I am the proper custodian of the said documents.

Anekwu claimed, inter alia, that these certifications were "testimonial" meaning that the people who prepared them had to testify to satisfy the Confrontation Clause. The Ninth Circuit disagreed, initially noting that

in United States v. Yeley–Davis, 632 F.3d 673 (10th Cir.), cert. denied, 131 S.Ct. 2712 (2011)...., the Tenth Circuit dealt with certificates of authentication of cell phone records....The Tenth Circuit held that "certificates of authenticity presented under [Federal Rule of Evidence] 902(11) are not testimonial."... "Because the phone records here were 'created for the administration of [Verizon's] affairs and not for the purpose of establishing or proving some fact at trial' we conclude that they were not testimonial and thus, not subject to confrontation."...The Tenth Circuit invoked the Supreme Court's distinction "between affidavits created to provide evidence against a defendant and an affidavit created to authenticate an admissible record

The Ninth Circuit then drew an analogy between Rule 902(11) certifications and certifications of foreign records under 18 U.S.C. § 3505(a)(1) and found no Confrontation Clause violation:

Here, the certifications of the foreign business records (mailbox applications and bank records) stated that the records were: (1) created at or near the time of the events they purported to establish, by someone with knowledge of those events; (2) kept in the course of regularly conducted business; (3) made as part of that business's regular practice; and (4) true and correct copies. The certificates satisfy the requirements of 18 U.S.C. § 3505(a)(1) in substance....Following the reasoning of Yeley–Davis, the certificates authenticated otherwise admissible records....If so, then the admission of the authenticating certificates for the mailbox applications and bank records would not have violated the Confrontation Clause. Thus, we cannot conclude that the district court plainly erred by admitting the certificates for the foreign business records.



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