In a child pornography prosecution, self-authentication was established by the agent obtaining the birth certificate from the foreign government’s census office bearing the seal of a foreign certifying official which was accompanied by a certification by the U.S. embassy vice counsel that the appropriate embassy official had determined that the birth certificate was a copy of the official foreign government record, in United States v. Deverso, 518 F.3d 1250 (11th Cir. March 5, 2008) (No. 06-16048)
Under Rule 902(3), foreign public documents may be self-authenticated where certain foundational requirements. An Eleventh Circuit case considered the admission of a foreign birth certificate under the rule.
In the case, defendant Deverso came under investigation for possessing child pornography and traveling abroad to engage in sex with minors. When his wife was interviewed, she provided “various computer media and printouts that she surreptitiously obtained” from the defendant which depicted “young girls in various stages of undress.” Deverso, 518 F.3d at 1253. After a search warrant was executed, law enforcement found child pornography on two computers and charges were filed. One of the victims was located in the Philippines. At trial, she testified that she was seventeen years old when she had sex with the defendant. A special agent also testified about his efforts to locate the victim and obtain her birth certificate, which was admitted at trial. At trial, the defendant objected that the birth certificate “was an incomplete document because it did not have a signature under the heading ‘Certificate of Attendant at Birth.’” Deverso, 518 F.3d at 1253. The defendant was convicted and sentenced to 315 months. On appeal, he challenged the authentication of the foreign birth certificate for the first time as lacking a signature.
The Eleventh Circuit affirmed the admission of the victim’s birth certificate as a foreign public document under FRE 902(3). The issue was reviewed for plain error since the trial court objection that the document was “incomplete” was different than the claim raised for the first time about the absence of a signature. The circuit found that the defendant “cannot show error, let alone plain error.” The circuit readily dismissed the challenge because FRE 902(3) had “no requirement … that the document itself be signed.” Deverso, 518 F.3d at 1255 (citing United States v. Squillacote, 221 F.3d 542, 562 (“The rules are written in the alternative — foreign documents may be authenticated by a certification from the official executing the document or by an official attesting to the document.”)).
The circuit concluded that the foreign birth certificate was properly admitted as the two requirements for authentication under FRE 902(3) were met. First, evidence was presented that the document is what is purports to be, such as that the document was executed by a proper official in his official capacity or the genuineness of the document was attested to by a proper official in his official capacity. This requirement was met as “the copy of the birth certificate was stamped as a certified copy and affixed with the seal of Luzviminda N. Cruz, whom Vice Consul Russell certified was “Clerk II, National Statistics Office, Quezon City, Republic of the Philippines.” Deverso, 518 F.3d at 1256.
Second, evidence was presented that the official who vouched for the document is who he or she purports to be. This requirement was established as the “birth certificate was accompanied by a certificate from Richard Ambrad, Embassy Coordinator with the Government of the Philippines, attesting that the copy of Beverly’s birth certificate was a true copy of an official record authorized by the law of the Philippines to be reported and recorded in the National Census and Statistics Office. That certification was accompanied by a final certification by Kimberly A. Russell, Vice Consul of the United States in the Philippines.” Deverso, 518 F.3d at 1256.
Finally, the defendant also claimed the information in the birth certificate was unreliable. This argument went to the weight of the evidence and not its admissibility.
There are not a lot of cases applying FRE 902(3). The Deverso case provides an example of the issues and arguments raised under the rule.
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