Admission Of Unauthenticated Certificate Results In Reversal

Ninth Circuit reverses conviction based on the admission of an unauthenticated certificate which was used to establish an essential element of the offense; the certificate could not meet the self-authentication requirements of either FRE 902(1) or FRE 902(2) since an Indian tribe was not included among the political subdivisions or public agencies which could issue domestic public documents, in United States v. Alvirez, _ F.3d _ (9th Cir. March 14, 2013) (No. 11-10244)

The requirement of authentication ensures the genuineness of evidence. As Seventh Circuit Judge Richard Posner noted, “Evidence that is not oral testimony must be shown to be what it purports to be rather than a forgery or other fabrication or an innocent misidentification. But there are no rigid rules, such as chain of custody, for authentication; all that is required is adequate evidence of genuineness.” United States v. Dawson, 425 F.3d 389, 392-93 (7th Cir. 2005). While the proponent of the evidence holds the burden to show authentication, the standard is normally not high. See generally United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (“The bar for authentication of evidence is not particularly high.”) (citation omitted). Nonetheless, the failure to meet it can be fatal. The Ninth Circuit recently considered the consequences of admitting unauthenticated evidence.

In the case, defendant Alvirez was prosecuted for assault resulting in serious bodily injury on
an Indian reservation. The assault occurred during a dispute over whether the defendant was “assisting his mother financially.” The statute, 18 U.S.C. § 1153, required the government to show “that the defendant has a sufficient degree of Indian blood,” and “has tribal or federal government recognition as an Indian.” Alvirez, _ F.3d at _ (citing United States v. LaBuff, 658 F.3d 873, 877 (9th Cir. 2011) (citation, alterations, and internal quotation marks omitted)). During the testimony of Officer Williams, in describing the defendant's arrrest, the government a Certificate of Indian Blood (Certificate), which had been issued by the Colorado River Indian Tribes (CRIT). The evidence was opposed:

Defense counsel objected to Officer Williams’ attempted authentication of the Certificate, challenging Officer Williams’ statement as hearsay, because Officer Williams had no affiliation with the CRIT sufficient to authenticate the Certificate. The government responded that the Certificate was a self-authenticating document. When defense counsel could not identify a reason that the Certificate was not self authenticating, the judge overruled the defense objection and admitted the Certificate into evidence.

. . .

The Certificate indicated that Alvirez was an enrolled member of the CRIT and that his blood quantum is one-fourth CRIT, three-eighths Hualapai, and one-eighth Havasupai.

Alvirez, _ F.3d at _; see generally Bureau Of Indian Affairs Certificate Of Degree Of Indian Or Alaska Native Blood Instructions (providing background on certificate). Following his jury conviction, the defendant challenged the admission of the unauthenticated certificate, claiming reversible error.

The Ninth Circuit agreed that the certificate was unauthenticated and required reversal. First, FRE 902(1), which provides for self-authentication of domestic public documents under seal, did not apply because Indian Tribes were not listed among the public agencies or political subdivisions enumerated in the rule. As the circuit explained:

Fed. R. Evid. 902(1) specifically lists the entities that may issue selfauthenticating documents and Indian tribes are not among those listed. See Fed. R. Evid. 902(1) (listing the United States; a State of the United States; a commonwealth, territory, or insular possession of the United States; the Panama Canal Zone; and the Trust Territory of the Pacific Islands); see also United States v. Weiland, 420 F.3d 1062, 1072 (9th Cir. 2005) (explaining that a party may not circumvent the requirements of authentication when the plain language of a rule lists the requirements necessary for authentication).

. . .

Because Indian tribes are not listed among the entities that may produce self-authenticating documents, the district court abused its discretion in admitting the Certificate pursuant to Federal Rule of Evidence 902(1) as a self-authenticating document.

Alvirez, _ F.3d at _ (footnote omitted).

The Ninth Circuit disagreed with the government that tribes qualified as “political subdivisions” listed under the rule. Instead, the circuit noted:

Tribes are “sovereigns or quasi sovereigns,” Kiowa Tribe of Okla. v. Mfg. Tech., Inc. , 523 U.S. 751, 757 (1998), not one of the political entities into which the federal government is divided, see Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.”).

Alvirez, _ F.3d at _ n.4.

An alternative basis to authenticate the certificate, FRE 902(2) was similarly inapplicable. As the Ninth Circuit noted:

That rule allows for the authentication of documents “purporting to bear the signature in the official capacity of an officer or employee of any entity included in” Rule 902(1). Fed. R. Evid. 902(2). Therefore, because tribes are not among the entities included in Rule 902(1), Rule 902(2) is inapplicable.

Alvirez, _ F.3d at _ n.6.

Finally, the Ninth Circuit considered whether the error in admitting the certificate was harmless error:

Absent admission of the Certificate, it is questionable whether the government would have established Alvirez’s Indian status to the satisfaction of the jury, because the only other evidence of Indian status was [victim] Havatone’s testimony that Alvirez lived on the reservation and was a member of the Hualapai Tribe.… Therefore, because the error was not harmless, we vacate Alvirez’s conviction and remand for proceedings consistent with the reasoning in this opinion.

Alvirez, _ F.3d at _ n.6.

The Alvirez decision shows the application of two self-authentication rules, FRE 902(1) and FRE 902(2). Because the certifying entity (tribe) was not listed among the enumerated political subdivisions, neither rule could be used to authenticate the certificate. The case also highlights the fatal consequences resulting from the failure to authenticate key evidence used to establish an element of the offense.

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Photo Description: Great Seal of the Colorado River Indian Tribes.

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