Logs of pseudoephedrine purchases, kept by pharmacies in the ordinary course of business as required by state law, were business records under FRE 803(6) and accordingly non-testimonial statements under Crawford v. Washington, 541 U.S. 36, 56 (2004) (business records under FRE 803(6) are non-testimonial statements) and therefore not subject to the Sixth Amendment Confrontation Clause (citing Whorton v. Bockting, 549 U.S. 406, 420 (2007) (Confrontation Clause does not apply to non-testimonial statements); Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2539-40 (2009) (explaining that business records are typically not testimonial)) in United States v. Mashek, 606 F.3d 922 (8th Cir. June 4, 2010) (No. 09-2058)
Almost a year ago, the Supreme Court reversed and remanded the judgment of the Massachusetts Appeals Court in Melendez-Diaz v. Massachusetts. The Court clarified that certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." Only a few days later, the Court granted certiorari in Briscoe, et al., v. Virginia (07-11191), which presented whether a state can "avoid" its obligation to make a lab analyst who prepared a testimonial report available for defense cross-examination "by providing ... the accused ... a right to call the analyst as his own witness” at trial. In January 2010, the Court vacated and remanded Briscoe “for further proceedings not inconsistent with the opinion in cite>Melendez-Diaz v. Massachusetts.” Briscoe v. Virginia, 559 U. S. __ (2010) (per curiam) (07-11191) . That Melendez-Diaz provided sufficient guidance for resolving Confrontation issues was a conclusion recently demonstrated by the Eighth Circuit in resolving a challenge raised by a defendant to the admission of drug purchase record logs kept by pharmacies in a methamphetamine prosecution.
In the case, Defendant Mashek was convicted of attempt to manufacture methamphetamine and possession of firearms in furtherance of drug trafficking. He was apprehended after police received “information from several sources” as to the defendant's activities, including cooperation from Brown, a “frequent purchaser” of pseudoephedrine (a key substance use in making methamphetamine). Brown was a regular visitor to the defendant's house and information Brown provided helped the police obtain and execute a search for the defendant's house. The search came upon a variety of materials and substances used for methamphetamine manufacture, as well as weapons. The defendant's attempt to suppress use of these items at his trial failed. Mashek, 606 F.3d at 927.
In addition to using this evidence at the defendant's trial, the prosecutor also introduced into evidence pseudoephedrine logs from local pharmacies, at which the defendant purchased this ingredient, allegedly for manufacturing methamphetamine. The defendant was convicted after a jury trial and he appealed challenging the admission of the logs as a violation of his Confrontation Clause in light of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The circuit reviewed his contention for plain error because the defendant did not raise the challenge under Melendez-Diaz at trial. Mashek 606 F.3d at 930.
The circuit found little reason to ponder the defendant's contention of a Confrontation Clause violation. It quickly rejected the challenge as precluded by the Supreme Court's recent pronouncements on application of the clause since 2004:
“The government contends that Mashek affirmatively waived his right to confront and cross-examine a witness about the pseudoephedrine logs. Mashek responds that although he waived the right to a live witness for the specific purpose of attacking the foundational elements of the hearsay exception, he did not waive his rights under the Confrontation Clause.
“In Melendez-Diaz, the Court held that admission of laboratory reports via a “certificate of analysis,” rather than through the live testimony of the laboratory analyst violated the Confrontation Clause. 129 S.Ct. at 2542. The Court explained that the laboratory reports were testimonial because they were prepared for the purpose of providing evidence against the accused at trial. Id. at 2532.
“Assuming that Mashek did not waive his right to confrontation, Melendez-Diaz does not provide him any relief. “ The pseudoephedrine logs were kept in the ordinary course of business pursuant to Iowa law and are business records under Federal Rule of Evidence 803(6). Business records under Rule 803(6) are non-testimonial statements, Crawford v. Washington, 541 U.S. 36, 56 (2004), to which the Confrontation Clause does not apply. Whorton v. Bockting, 549 U.S. 406, 420 (2007); see Melendez-Diaz, 129 S.Ct. at 2539-40 (explaining that business records are typically not testimonial). Thus, the admission of the pseudoephedrine logs did not violate Mashek's constitutional confrontation rights. See United States v. Foreman, 588 F.3d 1159, 1162 n. 5 (8th Cir.2009).”
Mashek, 606 F.3d at 930.
The circuit found little reason to ponder the issue, at least if a record could be considered a business record under FRE 803(6). Whether or not it was testimonial, it was not hearsay under the business records exception. This seems to suggest that trying to find a Confrontation Clause issue was misguided in light of the Supreme Court's recent jurisprudence on the Sixth Amendment. See
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