Federal Evidence Review

In felon in possession of a firearm prosecution, ATF Form 4473 firearm transaction record, indicating purchaser, was admissible under FRE 807 since it had circumstantial guarantees of trustworthiness as federal regulations require sellers to provide the information on the form; while record may have been admissible as a business record, government did not present a witness familiar with the seller’s record-keeping practices, in United States v. Banks, 514 F.3d 769, 777-78 (8th Cir. 2008) (No. 06-3593)

The residual hearsay rule, under FRE 807, is often considered a hearsay rule of last resort that may apply where other hearsay exceptions are unavailable. An Eighth Circuit case highlights this principle concerning the admission of a common firearm transaction record.

In the case, defendant Banks was charged with being a felon in possession of a firearm. Evidence at trial indicated that defendant Banks had used the name Andre Stevens. At trial, the government offered an ATF firearm transaction form (ATF Form 4473) from a pawn shop which indicated the firearm was sold to Andre Stevens. The trial court overruled the defense hearsay objection to the record. The defendant was convicted and appealed the admission of the firearm record.

The Eighth Circuit affirmed the admission of the firearm record under the residual hearsay exception. The circuit described the ATF Firearm Form 4473 as “similar to a sales receipt in that a gun dealer routinely fills out a Form 4473 at the time of sale and holds it as a regular business record.” Banks, 514 F.3d at 777. The circuit noted that the form may have been admitted as a business record under FRE 803(6), but “the government did not call a witness from the pawn shop who was familiar with its record-keeping practices.” Banks, 514 F.3d at 778.

In considering the residual hearsay exception, the Eighth Circuit identified five foundational elements to admit evidence under FRE 807:

“1) that the evidence have circumstantial guarantees of trustworthiness, 2) that the evidence be offered to prove a material fact, 3) that the evidence be more probative on the point offered than any other evidence which the proponent can procure through reasonable efforts, 4) that the proponent has served prior notice to the adverse party in advance of trial, and 5) that admission would comport with the general purpose of the rules and be consistent with the interests of justice.”

Banks, 514 F.3d at 777 (citing FRE 807). The focus on admitting the firearm transaction record was on the first element, requiring circumstantial guarantee of trustworthiness. The circuit found this element was satisfied by the legal requirement for collecting the information at the time of the transaction:

“Unlike other businesses, a firearms dealer is required to record all of its sales on Form 4473. 27 C.F.R. § 478.124(a). Specific information must be collected, including the buyer's name, sex, address, date and place of birth, height, weight, race, citizenship status, and a certification that the buyer is not a person prohibited from possessing a firearm. Id. at § 478.124(c)(1). A dealer must maintain Form 4473 in an indexed manner for no less than 20 years after the date of sale. Id. at § 478.129(a). Upon demand, a dealer must make available its records for inspection by ATF officers. 27 C.F.R. § 478.121(b). Failure to comply with these provisions may result in the dealer losing its license to sell firearms.”

Banks, 514 F.3d at 777 (other citation omitted; also citing United States v. Simmons, 773 F.2d 1455, 1459 (4th Cir. 1985) (divided panel affirming admission of two ATF trace forms under the residual hearsay exception noting there was “no reason for the manufacturers of these weapons to falsify the entries on the routine ATF forms”)). The legal duty to create the record provide the requisite trustworthiness to admit the record at trial. The defendant did not challenge the other elements of the residual hearsay exception.

The Banks, case shows how the residual hearsay exception may be considered where another hearsay exception does not apply. Other courts have recognized that the firearm transaction record may be admitted as a business record. See, e.g., United States v. Bland, 961 F.2d 123, 128 n.4 (9th Cir.) (noting the potential availability of the public records exception to admit government firearm transaction records (ATF Form 4473), although the records were introduced under FRE 803(6)), cert. denied, 506 U.S. 858 (1992).