Questioning Pharmacy Records As Testimonial Evidence

In conspiracy to manufacture and distribute methamphetamine prosecution, admitting pharmacy pseudoephedrine purchase records which were not testimonial under the Confrontation Clause and were admitted under the FRE 803(6) business record hearsay exception as records kept in the normal course of business as required by state drug sale regulations, and not records for active prosecution of drug offenders, in United States v. Towns, _ F.3d _ (5th Cir. April 30, 2013)

Is there a clear and simple test to distinguish testimonial from non-testimonial hearsay for purposes of the Confrontation Clause? Under what circumstances are purchase records, which law enforcement may obtain, admissible? The Federal Evidence Blog has noted this issue before. See FRE 803(6) Business Records Neither Testimonial Nor Hearsay Under Melendez-Diaz Confrontation Clause Analysis (June 7, 2010) (Logs of pseudoephedrine purchases, kept by pharmacies in the ordinary course of business as required by state law, were business records under FRE 803(6) and accordingly non-testimonial statements under Crawford v. Washington 541 U.S. 36 (2004) (business records under FRE 803(6) are non-testimonial statements and therefore not subject to the Sixth Amendment Confrontation Clause). A case decided by the Fifth Circuit reaffirms this view, yet the division that arose on the panel suggest some of the complexity of grappling with when a statutorily required business record-keeping activity is also in the regular course of business as FRE 803(6) requires.

In the case, the panel majority found that the pharmacy pseudoephedrine purchase logs that were used to secure conviction of defendant Towns were admissible as non-testimonial FRE 803(6) business records. The defendant was charged with participating in a conspiracy to manufacture and distribute methamphetamine. The government contended that the defendant furthered the conspiracy by:

purchasing large quantities of pseudoephedrine to be used in [the conspirators'] manufacturing methamphetamine. At trial, the Government offered pseudoephedrine purchase logs from various retailers (Walgreens, Wal–Mart, Target, and CVS) to highlight a pattern of movement and purchases that implicated Towns in the conspiracy. The log spreadsheets were admitted through [officer] Pieprzica, who had received the records and their certifying affidavits from the records custodians of the companies that ran the pharmacies.
Towns, __ F.3d at __.

The Fifth Circuit noted that the reason the records were maintained was that state regulations required it. However, pharmacies in compliance with the record-keeping mandate "did not use the logs for any other business purpose, and did not necessarily require the purchaser’s photo identification when making a log entry" for purposes of verification. In providing to the prosecutor the records for use as evidence in defendant's case, the pharmacies provided affidavits tracking the language of FRE 803(6). The prosecutor also introduced the logs through a law enforcement officer who had no personal knowledge of the pharmacies’ record-keeping systems. Although Towns tried to exclude the logs through a motion in limine he failed to specifically object to authentication or foundation of the drug logs. United States v. Towns, __ F.3d at __.

According to the panel majority, a key to resolving whether the use of the pharmacy logs violated the defendant's rights was not to get distracted with why the record was made, but rather to focus on whether there were kept in the ordinary course of business:

the undue focus on the law enforcement purpose of the records has little to do with whether they are business records under the Federal Rules of Evidence. What matters is that they were kept in the ordinary course of business. It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business. ... this court held that firearm records that gun shops were forced to maintain by law were business records since a company could lose corporate privileges for failing to maintain them properly. Id. at 1191. To hold otherwise here would violate precedent and move the inquiry beyond the rule's text. The regularly conducted activity here is selling pills containing pseudoephedrine; the purchase logs are kept in the course of that activity. Why they are kept is irrelevant at this stage.
Towns, _ F.3d at _ (emphasis added) (citing United States v. Veytia–Bravo, 603 F.2d 1187, 1191 (5th Cir. 1979))

The dissenting judge on the panel, Circuit Judge James E. Graves, Jr., took a different approach to the regular course of business determination. The judge disagreed with "the majority's statements that 'any claim concerning the records' accuracy is not the province of Rule 803(6)' and that 'accuracy does not control admissibility.'" Indeed, he objected to the majority's view that the issue of the confrontational status of the drug logs had already been determined by the circuit in other cases. In the dissenting judge's view, "[t]his Court has not decided whether pseudoephedrine logs constitute business records for purposes of Rule 803(6)." Towns, _ F.3d at _. In his view, the defendant's case not settle the issue.

In a sense, the judges on the panel were looking at different sides of the same coin. For the majority, the focus was whether the records were used in the normal course of business. If it is, then there is little need to probe the accuracy issue because the business demands generally guarantee the accuracy of the records. For the dissent, the matter was the reverse. One looked first for whether the record was accurate, one indication of which is that the record was used in the normal course of business. The majority's test is a rather formalistic one -- turning on whether the record was kept, or not kept, in the normal course of business? For the dissent, the test was more illusive: did the circumstances of the record's creation show that the record was reliable -- one sign of which was evidence of its use in the ordinary course of business.

Other pharmaceutical business record cases include: United States v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010) (No. 09-2058) ("The pseudoephedrine logs were kept in the ordinary course of business pursuant to Iowa law and are business records under Federal Rule of Evidence 803(6). Business records under Rule 803(6) are non-testimonial statements, to which the Confrontation Clause does not apply.") (citations omitted); United States v. Fox, 487 Fed. App'x 165 (5th Cir. 2012) (per curiam) (No. 11-40191) (unpublished) (noting admission of pharmacy pseudoephedrine logs supported conviction)).


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