Circuit Consensus On Treasury Enforcement Communications System (TECS) Records

In conspiracy to import and distribute cocaine and heroin using drug-trips over the US-Mexico border, government agency's record of dates in which identified vehicles, such as those of the defendant, crossed the border into the United States was admissible as a public record exception to the hearsay rule because the record was kept for administering affairs of the agency and not for proving any fact at trial; in addition, the evidence of border crossings was not testimonial under the Confrontation Clause, in United States v. Cabrera-Beltran, __ F.3d __ (4th Cir. Nov. 10, 2011).

Since Crawford v. Washington, 541 U.S. 36 (2004), re-orientated the focus of Confrontation Clause jurisprudence, the circuits have examined whether certain business or government records are "testimonial" -- Are they statements in the records, usually compiled in anticipation of the litigation for which the records are used, testimonial statements? The Forth Circuit recently considered this question with regard to certain Treasury Department records (Treasury Enforcement Communications System (TECS) Records) and found that the records were not testimonial.

In the case, defendant Cabrera–Beltran was charged with conspiring with Dodson to "make both international and domestic drug-related trips" which involved crossing the US-Mexico border with a car, having the car outfitted with secret compartments, and return to the U.S. with the charged drugs. During his trial, the prosecution documented the conspiracy's crossings of the border with different vehicles on particular days.

As described by the Circuit, this record was referred to as the Treasury Enforcement Communications System (TECS) records, which:

is a case management system maintained by Customs and Border Protection, a division of the Department of Homeland Security. The system is used to keep a record of who and what enters the United States. The information contained in a TECS record may include “a person's name, date of birth, potentially what document they used, potentially which method they used to enter into the United States, and potentially which method they used to exit the United States.” Trial Transcript 657. For vehicular border crossings, TECS maintains a record of the vehicles used and their license plates.
Cabrera-Beltran, __ F.3d at __.

The jury convicted the defendant and he raised a number of challenges to the trial's conduct. One multi-facited challenge concerned the admission of the TECS evidence. The defendant basically contended that the record was hearsay and was testimonial in nature, so that the government failure to have the custom's officers who compiled the record testify at trial about the alleged crossings violated the defendant's right to Confrontation under the Sixth Amendment.

The circuit affirmed the trial court's admission of the TECS record. It found that if the record was not hearsay because it was excepted from the operation of the hearsay rule as a public record exception. Nor, explained the circuit, was the TECS record testimonial as "the TECS records in this case were not created for trial. To the contrary, the information contained in the TECS records was entered for the mere purpose of “maintain[ing] a record of what [was] coming into the United States.” Cabrera-Beltran, __ F.3d at __.

The Fourth Circuit agreed with others in the regard, including the:

  • Fifth Circuit: United States v. Puente, 826 F.2d 1415, 1418 (5th Cir. 1987) (“The Customs Service officials who enter the license numbers of vehicles crossing the border into the TECS system have no motivation other than to mechanically register this unambiguous factual matter.") (internal quotation marks omitted)
  • Ninth Circuit: United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979) (TECS records are “records of routine, nonadversarial matters” and “the simple recordation of license numbers of all vehicles which pass [a] station is not of the adversarial confrontation nature”.)
Cabrera-Beltran, __ F.3d at __.

The Fourth Circuit explicitly endorsed these views of the Fifth and Ninth Circuits:

We agree. The border-crossing information contained in the TECS records was registered merely to administer the affairs of the United States Customs and Border Patrol. This reason is entirely unrelated to “proving some fact at trial.” The TECS records, thus, are non-testimonial, see Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 2539–40 (2009), and their admission into evidence did not violate the Confrontation Clause, see Michigan v. Bryant, 131 S.Ct. 1143, 1155, (2011) (noting that “when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony ... the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause”).
Cabrera-Beltran, __ F.3d at __. In its measured discussion of Confrontation Clause principles and practices, the court in Cabrera-Beltran set out much of the bases in the evolution of the Clause since the decision in Crawford v. Washington, 541 U.S. 36, 68 (2004).

Federal Rules of Evidence