Federal Evidence Review

Eleventh Circuit notes the fact of the conviction and sentence were admissible under FRE 803(22) but the underlying facts could not be considered, in United States v. $125,938.62 Proceeds of certificates of deposit number 1271734730, $60,851.73 number 1271736329, et al., 537 F.3d 1287 (11th Cir. Aug. 6, 2008) (No. 07-10380)

A recent case from the Eleventh Circuit considered the admission of a foreign judgment of conviction and the limits to using the judgment.

The government claimed that seven certificates of deposit contained embezzled funds from the Treasury of Nicaragua. A civil forfeiture action was filed to recover the funds. To prove the funds were embezzled, the government admitted a Nicaraguan judgment of conviction. Under the public records hearsay exception, the district court relied on the judgment, and the facts asserted in the judgment, and ruled in favor of the government. The owners of the certificates of deposit appealed. The circuit asked the parties to brief the issue whether the foreign judgment was admissible under FRE 803(8)(C) based on prior precedent, citing United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994) (in breach of private practice assignment agreement against physician, separate district court findings of fact and references to witnesses’ testimony within order were inadmissible under FRE 803(8)(C); noting drafters of FRE 803(8)(C) “intended this portion of the rule to apply to findings of agencies and offices of the executive branch” and not judicial findings of fact). Based on Jones, the government acknowledged that FRE 803(8)(C) did not apply but argued that the judgment and underlying fact of conviction was admissible under FRE 803(22), which provides:

“Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused.”

The circuit agreed that the fact of the underlying conviction and sentence were admissible under FRE 803(22) but “none of the relevant facts found in the judgment of conviction were admissible.” $125,938.62 Proceeds, 537 F.3d at 1292. Finally, in reviewing the record, the circuit concluded the government barely met its burden to connect two certificates of deposit to embezzled funds. However, it failed to make the requisite showing for five certificates of deposit.

FRE 803(22) permits the evidence of a final criminal felony judgment to be admitted as an exception to the rule excluding hearsay. FRE 803(8)(C) allows investigative findings made pursuant to legal authority to be introduced in civil actions and against the government in criminal cases. As the circuit noted, the rule does not apply to judicial findings.