Admitting Voluminous Business Records And A Related Summary

In fraud prosecution, D.C. Circuit approves of the admission of more than 10,000 records as business records and a summary exhibit of the records; circuit rejects claim that the Chief Financial Officer, used to admit the exhibits at trial, “have personal knowledge of the actual creation of the” business records as long as the requirements of FRE 803(6) were met; on the summary, there was no requirement that the same witness have created the summary as long as he had supervised it, in United States v. Fahnbulleh, _ F.3d _ (D.C. Cir. June 13, 2014) (Nos. 11–3045, 11–3047)

FRE 803(6) provides for the admission of business records. FRE 1006 allows for summaries to be admitted where “[t]he content of voluminous writings . . . that cannot be conveniently examined in court.” A recent fraud case demonstrates the issues that may arise in admitting voluminous business records.

Trial Proceedings

In the case, two defendants were prosecuted for their roles in committing fraud in connection with a government-funded food aid program for Liberia. The food aid program provided food in exchange for laborers from the Liberian communities “perform[ing] community projects such as digging wells and repairing roads.”

At trial, the government offered an exhibit consisting of “36 binders containing over 10,000 pages of raw data collected, using eight different forms, on the Liberia Food for Work program.” The Chief Financial Officer of World Vision International testified concerning the records at trial. The trial court admitted the exhibit as a business record under FRE 803(6). The government also offered another exhibit which including “a summary of the forms” of the business record exhibits that was also admitted through the testimony of the Chief Financial Officer. Following their convictions at trial, both defendants challenged the admission of these exhibits on appeal. Specifically, the defendants claimed that the Chief Financial Officer lacked “personal familiarity with the documents as he did not work at World Vision until after the project was completed; he reviewed but did not conduct the audit of the records; and he had never been to Liberia” and the records were not “transmitted by a person with knowledge.” Both contended that the requirements to admit a summary had not been met.

D.C. Circuit Review: Underlying Business Records

The D.C. Circuit found that the underlying records were properly admitted. On the business record challenge, the circuit concluded that “all of the requirements for admission of the evidence as business records were met.” Fahnbulleh, _ F.3d at _.

The circuit listed the five requirements under the rule:

(A) the records were made at or near the time by someone with knowledge; (B) the records were kept in the course of a regularly conducted activity of, inter alia, a business or organization; (C) making the records was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Fahnbulleh, _ F.3d at _.

The circuit found each requirement was met:

First, Fullilove testified that the forms making up Exhibit 100 were prepared by World Vision employees as part of their job responsibility throughout the course of the Food-for-Work program. Second, Fullilove testified that all the forms were maintained in the ordinary course of business. Third, Fullilove testified that these forms were similar to the forms regularly maintained in its other branches. Fourth, Fullilove was World Vision International’s Chief Financial Officer, and as such was familiar with the forms and circumstances of their creation. Furthermore, he testified that he had supervised and reviewed the forensic audit of World Vision International that had collected and analyzed the forms.

Fahnbulleh, _ F.3d at _. The circuit noted that there was no requirement that the testifying witness “have personal knowledge of the actual creation of the document.” Fahnbulleh, _ F.3d at _ (quoting United States v. Adefehinti, 510 F.3d 319, 325 (D.C. Cir. 2007) (internal citation and quotation marks omitted)). On the final trustworthiness element, the circuit noted that “there was no evidence that the documents presented in court were not reliable reports of the data that had been entered.” Fahnbulleh, _ F.3d at _.

Finally, while the requirements of the business record hearsay exception were met, the circuit noted in passing that the records would not raise a hearsay issue if the records were offered for the non-hearsay purpose to establish the falsity of the records. Fahnbulleh, _ F.3d at _ (citing Anderson v. United States, 417 U.S. 211, 220 (1974) (statements are not hearsay if “the point of the prosecutor’s introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing . . . that they were false”)).

Summary Exhibit

The circuit also concluded that the summary exhibit was properly admitted under FRE 1006. The circuit disagreed with both defendants that the government failed to satisfy the requirements of the rule.

As the circuit described the requirements,

For a summary of documents to be admissible, [a] the documents must be so voluminous as to make comprehension by the jury difficult and inconvenient; [b] the documents themselves must be admissible; [c] the documents must be made reasonably available for inspection and copying; [d] the summary must be accurate and nonprejudicial; and [e] the witness who prepared the summary should introduce it.

Fahnbulleh, _ F.3d at _ (citing United States v. Hemphill, 514 F.3d 1350, 1358 (D.C. Cir. 2008) (challenge to prosecution’s summary evidence lacked merit, as it made no difference that non expert witness prepared the summary)).

There was no requirement that the witness prepare the summary exhibit. In this case, the Chief Financial Officer “testified that he supervised a team of auditors who reviewed the raw data and prepared the summary, and that he then reviewed the summary.” This was acceptable. Fahnbulleh, _ F.3d at _ (citing United States v. Lemire, 720 F.2d 1327, 1349 (D.C. Cir. 1983) (admitting summary testimony when the witness presenting it had supervised others who prepared the summary)).

Conclusion

The Fahnbulleh case provides a recent example of admitting voluminous business records under FRE 803(6) and FRE 1006. In both instances, as long as the elements of each rule were satisfied, there was no requirement that the witness have personal knowledge of the underlying business records or have created the summary. The supervisory role of the witness provided a sufficient basis to allow for their admission.

On the issue of trustworthiness, there is a pending amendment to FRE 803(6) and related rules which would clarify that the opponent bears the burden of showing the untrustworthiness. The amendment will take effect on December 1, 2014, unless Congress otherwise acts. See Supreme Court Approves Amendment To FRE 803(6), FRE 803(7), FRE 803(8) (Part VIII), and background materials on the FRE 803(6), FRE 803(7), and FRE 803(8) Amendments Legislative History Page.

For more on the United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. 2008) case, see Use Of The Underlying Documents For Summary Charts Under FRE 1006 ; for more on the United States v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007) case, see Certified Bank Loan Documents Were Properly Admitted Under FRE 902(11).

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Photo Description: D.C. Circuit, E. Barrett Prettyman U.S. Courthouse and William B. Bryant Annex in Washington, D.C.

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