FRE 106 Rule Of Completeness Applied To Allegedly Forged Documents

In immigration fraud prosecution, the FRE 106 rule of completeness is not violated by the partial admission of an asylum application that allegedly contained false signatures when the defendants could have sought introduction of the remainder of the application during the presentation of their case, in United States v. Phillips, 543 F.3d 1197 (10th Cir. Oct 01, 2008) (Nos. 07-3135, 07-3143), cert. denied, 129 S.Ct. 946 (2009)

The rule of completeness codified by FRE 106 pemits a party to correct a misleading impression that was created by the introduction of part of a writing or conversation. The rule allows the correcting party to introduce additional parts of evidence so as to place the parts already admitted in context. One aspect of the rule that is unusual is that it is closely tied to its policy justification. As the rule's purpose is to correct any misleading impressions created by introduction of only part of a document, the rule allows the correcting party to have curative evidence introduced after the admission of the alleged misleading evidence. In this way, the fact finder does not labor under a misimpression of the admitted evidence until the correcting party presents it case or rebuttal. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988) (“[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.”) A fairly concise description of the scope, reach, and uses of FRE 106 is found in a Tenth Circuit case decided in late 2008 in a case in which the "original" document allegedly contained forgeries, United States v. Phillips.

In the case, Defendant Phillips, a lawyer, and defendant Morales-Phillips, his wife and secretary, were jointly prosecuted for submitting fraudulent immigration applications on behalf of undocumented workers seeking authorization to remain in the United States for employment purposes. The forms, which included Applications for Alien Employment Certifications (Form ETA-750) and Applications for Asylum (Form I-589), contained forged signatures and false information.

During the trial, the judge admitted only four of twelve pages of the I-589 asylum application. The defense objected, claiming that introduction of some pages of the I-589 form violated "best evidence" principles under FRE 1002 and the public records rule of FRE 1005. See Showing Due Diligence In Admitting A Public Record Under FRE 1005. Both defendants were convicted. They appealed, in part, based on a contention that not only was the best evidence rule violated, but the rule of completeness of FRE 106 was violated when the trial court failed to admit the remainder of the I-589 asylum application.

The Tenth Circuit found no error and no violation of FRE 106, the rule of completeness. The defendants claimed that the missing pages included personal information of one application that suggested she was involved in submitting the application. At trial, the applicant testified that her signature was forged and she did not authorize the defendants to submit the application. The circuit noted that the omitted information:

"the remaining eight pages of the I-589 form, ... set forth personal information about Ms. Solorazano that could only have been obtained had she been actively involved in the application process, would have benefited the defense. That might be true, but it does not render admission of the incomplete document an error. Rule 106 does not prohibit admission of an incomplete document. Instead, it allows the party against whom the document is introduced to place the remainder in evidence without additional evidentiary foundation. If the defendants wanted the remainder of the document to be admitted, they should have offered it. As this Court said in Worden v. Tri-State Ins. Co. , 347 F.2d 336, 341 (10th Cir.1965), '[i]t is fundamental that one side may introduce only a part of a document or deposition in evidence, but of course it is also well recognized that the other side may later introduce more or the rest of any such document or deposition which was not introduced in evidence.'"
Phillips, 543 F.3d at 1203-04 (citing Beech Aircraft Corp., 488 U.S. at 171)).

The circuit dismissed the defense claim that the “best evidence rule” was violated by the admission of a copy of the I-589 application instead of the original. The copy was admissible under FRE 1003 absent “a genuine question is raised as to the authenticity of the original” or “in the circumstances it would be unfair to admit the duplicate in lieu of the original.” [Phillips, 543 F.3d at 1204 (quoting FRE 1003)] The trial court concluded the original could not be obtained. The asylum applicant testified at trial and identified the copy as the document and that it “was in the same condition as when she received it. There is no reason to question the district court’s finding that there was no ‘genuine issue’ as to the authenticity of the copy, and it was appropriately admitted under Federal Rule 1003.” Phillips, 543 F.3d at 1204.


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Federal Rules of Evidence