Federal Evidence Review

In civil forfeiture action, foreign judgment of conviction, 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, 1292 (11th Cir. 2008) (No. 07-10380)

FRE 803 permits the evidence of a final criminal felony judgment to be admitted as an exception to the rule excluding hearsay. The drafters took the position that a criminal felony judgment may be “admissible in evidence for what it is worth.” ACN. The rule reflects “an increasing reluctance to reject in toto the validity of the law’s factfinding processes outside the confines of res judicata and collateral estoppel.”

In the case, a civil forfeiture action was filed alleging that a number of certificates of deposit “were derived from funds stolen from the Nicaraguan treasury during the presidency of Arnoldo Alemán” and therefore subject to forfeiture. Over the claimant’s objection, the court admitted a “copy of the final judgment of criminal conviction in [Nicaraguan Treasury Department Internal Revenue Secretary] Jerez and Alemán’s Nicaraguan prosecution.” The trial court admitted “two small portions of the judgment under the public records exception to the hearsay rule, including “the fact of Alemán’s conviction for ‘laundering of money and/or assets proceeding from illegal activities, fraud, embezzlement of public monies, peculation, and association and instigation to commit crimes and electoral crime’” and “a portion of the judgment acquitting Jerez, but suggesting he was guilty in fact of aiding and abetting the crimes of which Alemán had been convicted and that Jerez had done so in furtherance of Alemán’s financial interests.” $125,938.62 Proceeds, 537 F. 3d at 1290-91. After forfeiture was ordered for some of the certificates of deposit, the admission of the Nicaraguan judgment of conviction was challenged on appeal.

The circuit and parties agreed that the foreign judgment was inadmissible under FRE 803(8)(C) as “factual findings resulting from an investigation made pursuant to authority granted by law” based on United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994) (holding FRE 803(8)(C) is inapplicable to judicial findings of fact). Nonetheless, another hearsay rule permitted some aspect of the foreign judgment to be admitted. In particular:

“The fact of Alemán’s conviction and the sentence he received remain admissible pursuant to Fed. R. Evid. 803(22); however, none of the relevant facts found in the judgment of conviction were admissible in the district court. Consequently, when evaluating Appellants’ challenge to the sufficiency of the evidence, we may not consider facts drawn from the Nicaraguan judgment of conviction.”

$125,938.62 Proceeds, 537 F. 3d at 1292. In reviewing the record, the circuit affirmed the trial court ruling that two of the certificates of deposit were subject to forfeiture. However, the circuit reversed with regard to five other certificates of deposit. On this issue, the circuit considered the foreign judgment of conviction to establish embezzlement was a felony offense punishable by more than one year in prison.

The case demonstrates that all statements on the judgment of conviction are not necessarily admissible under FRE 803(22). However, the rule was used to permit the final felony criminal judgments to be considered to establish the fact of conviction and sentence.