Records Inadmissible For Failure To Satisfy FRE 902(11) Pretrial Notice Requirements

In prosecution of pharmacists for unlawful distribution of controlled substances, defense prescription records were inadmissible under FRE 902(11) since the defense failed to give pretrial notice that it intended to offer self-certified records, in United States v. Brown, 553 F.3d 768 (5th Cir. Dec. 18, 2008) (No. 05-20997)

FRE 902(11) provides for self-authentication of certified business records in lieu of trial testimony by a custodian of records or other qualified witness. To obtain the benefits of the rule, FRE 902(11) requires advance written notice of the intent to introduce business records without a custodian of records witness or other witness familiar with the records if the records are accompanied “by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification.” See ACN (2000) (“The notice requirements in Rules 902(11) and (12) are intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the certification.”). A Fifth Circuit case involved the application of the advance notice requirement.

The case involved the prosecution of several pharmacists for conspiring to and distributing pain management controlled substances (hydrocodone and promethazine) by using false prescriptions written by doctors. At trial, two defendants sought to admit pharmacy business records from their computer system, under FRE 803(6), to show that the challenged prescriptions represented a small portion of their business and therefore “they had no economic incentive to join the drug conspiracy” and did not know the prescriptions were unlawful. Brown, 553 F.3d at 793.

Instead of a custodian of the business records, the defendants tried to offer an expert to establish a foundation for the records. While the expert was familiar with the software program used to maintain records, he lacked familiarity with the record keeping procedures for the records in the case. Neither the defendants nor the mother of one of the defendants could testify about the records due to potential Fifth Amendment issues. Finally, the defendant tried to use the certification process under FRE 902(11). The government noted that it did not receive advance notice about the certification, and the trial court agreed. After the defendants were convicted by the jury, on appeal they challenged the exclusion of the business records.

The Fifth Circuit affirmed the exclusion of the business records. The expert was not a qualified witness to establish the business record foundation. As the circuit noted, “He knew about the pharmacy computer system, how to operate the system, and how to extract information from it, but that is not knowledge about the pharmacy's record keeping.” Brown, 553 F.3d at 793.

The Fifth Circuit agreed that the affidavit was untimely:

The notice requirements of Rule 902(11) are in place precisely to ensure that evidence to be accompanied by an affidavit can be vetted for objection or impeachment in advance. In this case, while the exhibits in question were available in advance, the way in which the evidence was to be introduced forms part of the necessary notice and understandably gave the government pause at trial. The government quickly discovered a few small discrepancies amidst vast numbers of pages in the proffered exhibits, and accordingly, it objected to their being admitted as business records via an untimely affidavit. Contrary to [defendants] Wiley and Essett's assertions, this goes not just to weight but to admissibility, as the lower court determined.
Brown, 553 F.3d at 793.

The defendants contended their Sixth Amendment right to present a defense was denied. This issue was reviewed for plain error since no trial objection had been made. No error was found. As the circuit explained:

Most of the relevant data in [defendant] Wiley's exhibits was admitted into evidence by the government. As far as the presentation of evidence, our review of the proffered exhibits does not begin to suggest that their presentation could have in any way unsettled the clear impression that emerges from the evidence otherwise arrayed against Wiley and Essett. Their ability to make their case was not impeded by the trial court's rightful exclusion of evidence that was not admissible under the applicable rules.
Brown, 553 F.3d at 793.

Like other rules of evidence, the ability to introduce business records through FRE 902(11) is conditioned on adequate pretrial notice. The Brown case highlights that the failure to comply with this notice requirement can result in exclusion of the business records.

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