In drug conspiracy and money laundering prosecution, the Confrontation Clause did not bar use of fingerprint cards from an earlier booking to be introduced as proof of identity without providing the defendant an opportunity to question the officer who took the defendant's prior prints; the cards were admitted under the FRE 803(6) business record exception as part of a routine booking (by state law enforcement unaware of the defendant's status in another state) and the cards were for general identification purposes, made while the officers were not aware of charges against the defendant; in United States v. Williams, _ F.3d _ (8th Cir. July 11, 2013) (Nos. 11–3437, 12–1941, 12–1949, 13–1200)
The Federal Evidence Blog has previously noted evidentiary challenges to fingerprint evidence. The challenge often is rooted in questions of expert witness testimony as resolved by FRE 702 and Daubert. The Eighth Circuit recently considered a different sort of challenge to the admission of fingerprint evidence. This challenge concerned whether the evidence posted problems for Sixth Amendment Confrontation Clause purposes. The Eighth Circuit's application of the Crawford line of cases did not require a complex analysis.
In the case, defendant Williams was tried for conspiring to distribute marijuana and of laundering the proceeds from the sales. He was convicted. In pursuing his appeal, he ended up filing a pro se brief raising issues that were not presented by counsel. One such issue concerned his claim that the trial judge had erroneously admitted into evidence fingerprint cards from an alleged arrest in Arizona under the alias “Donald Jarmon.” The fingerprinting had occurred before the defendant's arrest on the current federal charges. The defendant argued that the government's presentation of testimony by a fingerprint specialist, to the effect that the prints of the Donald Jarmon arrested in Arizona with hundreds of pounds of marijuana were identical with those of the defendant, violated his Sixth Amendment rights. The defendant claimed his Confrontation Clause rights were violated when the government "failed to present for cross-examination the person who took 'Donald Jarmon's' fingerprints in Arizona." The defendant argued that without the fingerprint cards showing that Jarmon was caught possessing selling marijuana in Arizona, "there would [have] be[en] a hole in the government's case against him for the conspiracy charge." He claimed the fingerprint evidence was essential to the charge that "he was intending to sell 'several hundred pounds of marijuana'" on the current drug conspiracy charges. Williams, __ F.3d at __.
The Eighth Circuit briefly addressed the defendant's pro se argument. First, it noted that two Supreme Court cases that addressed the confrontation implications of test certifications would provide guidance in the case. The first case, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009), focused in part on whether lab affidavits reporting the chemical composition of a charged substance were “testimonial” in that the affiants, the lab analyst, executed the forms under "circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, as well as that "the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance, and not merely one of many purposes. This finding was supplemented by the decision in Bullcoming v. New Mexico, 564 U.S. _, 131 S.Ct. 2705, 2716 (2011) (“[Q]uestioning one witness about another's testimonial statements [does not] provide[ ] a fair enough opportunity for cross-examination.”). There the person who conducted the lab test—not merely a colleague knowledgeable about the testing procedures and equipment used—must be available for cross-examination to satisfy the Sixth Amendment's confrontation requirement.
These two cases resolved the defendant's challenge because:
We do not believe that the Supreme Court's concerns regarding confrontation in Melendez–Diaz and Bullcoming are present here with respect to the fingerprint cards. Unlike the evidence in those cases, the fingerprint cards were created as part of a routine booking procedure and not in anticipation of litigation, i.e., “for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial.” Our determination is bolstered by the fact that the entity that took Williams's fingerprints-Arizona law enforcement—was unaware that Williams was wanted in Nebraska in connection with the marijuana conspiracy and, further, did not arrest Williams for conspiracy—related charges in Arizona. By contrast, the excluded evidence deemed to be “testimonial” in both Bullcoming and Melendez–Diaz and went straight to the heart of the offenses for which the petitioners in those cases were respectively charged.Williams, __ F.3d at __ (citing United States v. Diaz–Lopez, 403 F. App'x 199, 202 (9th Cir. 2010) (“The [fingerprint] card contains only ministerial, objective observations[,] ... was not created in anticipation of litigation[,] and is not testimonial.”); United States v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010) (pseudoephedrine logs kept “in the ordinary course of business” do not implicate Confrontation Clause); see also Bullcoming, 131 S.Ct. at 2709 (petitioner was charged with driving while intoxicated and the evidence at issue was a forensic report regarding the defendant's blood-alcohol level); Melendez–Diaz, 557 U.S. at 308 (petitioner charged with distributing and trafficking cocaine and the evidence at issue was “certificates of analysis” regarding the composition of seized substance)).
We conclude that the fingerprint cards are business records admissible pursuant to Federal Rule of Evidence 803(6) because they were created “in the regular course of business,” and not “solely for an ‘evidentiary purpose.’“ Accordingly, Williams's Sixth Amendment Confrontation Clause right was not violated.
The Williams case's approach to the application of Sixth Amendment Confrontation Clause seems straight forward. It certainly does not raise the host of questions that were initially feared when the Supreme Court acknowledged that it was leaving it to the lower courts to fill in the parameters of what is testimonial hearsay. Perhaps the Eighth Circuit disposition in Williams is only a minor reason to note the case. The circuit deals with a host of other issues in the case, including the attorney-client privilege; the Sixth Amendment concerns relative to informant's questioning of the defendant, and excluding defendant's effort to play an unedited 170 hours of the prosecution's recordings in the case.