Seventh Circuit notes verification of a "bait money" list three times a year was not a deficiency under FRE 803(6)'s "course of a regularly conducted business activity" requirement, in United States v. LeShore, _ F.3d _ (7th Cir. Sept. 11, 2008) (No. 07-1555).
Le Shore involved two bank robbers wearing masks who walked out of the bank with $5,600 in money and drove away. Included in the loot was “bait money.” This money was pre-selected for surrender to any robber. The serial numbers of the bait money were pre-recorded on a list, so that authorities could identify the cash taken by the robbers. After LeShore was apprehended as a suspect, could some of the money in his possession be matched to the “bait money” list? Was the bank’s “bait money” list hearsay or admissible as a business record?
The Seventh Circuit recently addressed this issue, noting the “bait money” list would be “classic[ally] inadmissible” unless a hearsay exception applied. A bank employee testified as a “qualified witness” about her responsibilities in maintaining and verifying the list including the serial numbers. The list was verified three times during the year. The requirements of FRE 803(6) were satisfied.
The circuit rejected the defense claim “that even though the bank regularly kept this record, it was irregularly compiled (in this case, remade): a new list was made only after the theft (or loss) of an existing bait money packet.” LeShore, _ F.3d at _. The list is completed when the old pack of money is robbed. This did not disqualify the admission of the list as a bank record. In fact, the circuit noted that “all of the factors suggested by the Advisory Committee as central to the justification for the exception are met in this case: systematic checking, regularity and continuity (giving rise to precision), actual reliance by the business, and compilation and verification by someone whose duty it is to do so.” LeShore, _ F.3d at _ (citing ACN).
The LeShore case highlights the requirements and factors that may be considered to admit a business record, even where the verification of the record is not frequent.
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