Thumb Drive Inscription Admitted Under Residual Hearsay Rule (FRE 807)

First Circuit concludes that a thumb drive inscription ("Made in China") was admissible under the residual hearsay exception under FRE 807; the inscription had "circumstantial guarantees of trustworthiness" based on legal requirements and may be self-authenticating under FRE 902(7), United States v. Burdulis, _ F.3d _ (1st Cir. May 23, 2014) (No. 12-1896)

A recent First Circuit case considered the application of the residual hearsay exception to admit an inscription from a thumb drive.

Trial Court Proceedings: Admitting "Made in China" Inscription

In the case, defendant Burdulis was prosecuted for possessing child pornography. The pornography had been found on a thumb drive obtained from his residence during the execution of a state search warrant. One element of the offense required proof that the pornography was "produced using materials which have been . . . shipped or transported" in interstate commerce.

At trial, to satisfy this element, the government admitted the thumb drive inscription noting: "Made in China." The defendant objected that the inscription was hearsay. He contended the residual hearsay exception was unavailable since the statement "lacked sufficient indicia of reliability." The trial court disagreed and admitted the inscription. Following his conviction, the defendant appealed the admission of the inscription contending that the inscription was the only evidence in support of the jurisdiction element of the offense.

First Circuit Analysis: Application Of The Residual Hearsay Exception

The First Circuit affirmed the admission of the thumb drive inscription. The circuit "accept[ed] for purposes of analysis" the defense claim "that the inscription was hearsay." under FRE 801(c). However, the circuit concluded that the inscription was admissible under the residual hearsay exception under FRE 807. In admitting a statement under the rule, there are four elements: "(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice."

The First Circuit found that the first element was satisfied as the inscription had "circumstantial guarantees of trustworthiness." As the circuit explained:

The district court rightly considered the fact that inscriptions indicating foreign origin are regulated, see 19 U.S.C. § 1304, and federal law prohibits false or misleading designations of origin, see 15 U.S.C. § 1125(a). Moreover, under the federal rules of evidence trade inscriptions are self-authenticating, Fed. R. Evid. 902(7), meaning they "require no extrinsic evidence of authenticity in order to be admitted," Fed. R. Evid. 902. An authentic inscription, of the kind made regularly by manufacturers in accordance with federal law, bears significant similarity to other forms of evidence admissible under the enumerated hearsay exceptions. See Fed. R. Evid. 803(6) (records of regularly conducted activity), (9) (certain information reported to a public office in accordance with a legal duty). Common sense, too, suggests a low probability that someone would stamp "Made in China" on a device made in the United States and presumably marketed here. Certainly the record here contains no reason to think otherwise.

United States v. Burdulis, _ F.3d at _.

Notice Requirement

The circuit found a challenge to the pretrial notice, which was raised for the first time on appeal, was unpersuasive. The notice claim was reviewed for plain error since it was not made at trial, and no plain error was found. The circuit found that the FRE 807(b) notice requirement was met by the government when it "notified the district court and the defendant before trial that it sought to establish an interstate nexus by 'introduc[ing] into evidence the thumb drive containing images and videos of child pornography . . . [which] bears a manufacturer's label that . . . reads, "Made in China."'" Burdulis, _ F.3d at _. The government was not specifically required to cite to FRE 807 "as a basis for admission."

However, the circuit agreed "that the government fell short under the rule by failing to provide notice to [defendant] Burdulis that the drive bore the name and mark of SanDisk, a company that manufactures digital devices" and "should have provided an address for SanDisk." Burdulis, _ F.3d at _.

Despite this deficiency, the defendant failed to establish that "the admission of the evidence affected his substantial rights and impaired the integrity of the judicial process," as required for plain error. As the circuit noted:

Notably, the drive was taken from [defendant] Burdulis's own home, and Burdulis has never claimed that he was unaware that the drive bore SanDisk's name. As for the address, the government correctly points out that Sandisk's address could have been "easily . . . obtained through a simple online search." And Burdulis never made any request of the government for information regarding the manufacturer. In these circumstances, where Burdulis had or could easily obtain all of the information he needed to meet the government's evidence, and never requested additional information, we find no plain error in admission of the inscription.

Burdulis, _ F.3d at _.

Other Case Law

The First Circuit noted that three other circuits "have found that similar inscriptions are not statements falling within the hearsay rule" including:

  • Eighth Circuit: United States v. Koch, 625 F.3d 470, 480 (8th Cir. 2010) ("While the better practice may be to prove the place of manufacture through a business record, we have previously rejected the claim that a manufacturer's inscription on a product is inadmissible hearsay.") (citing United States v. Bowling, 32 F.3d 326, 328 (8th Cir.1994) (manufacturer name on firearm admissible to prove interstate commerce element))
  • Ninth Circuit: United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir. 1992) ("An inscription placed on a firearm by the manufacturer is similarly a mechanical trace and not a statement for purposes of Federal Rule of Evidence 801(c).")
  • Tenth Circuit: United States v. Thody, 978 F.2d 625, 631 (10th Cir. 1992) ("[T]he manufacturer's imprint in the gun is not hearsay. It is technically not an assertion by a declarant as contemplated by the Rule.")

Conclusion

The Burdulis case demonstrates the application of the residual hearsay rule. Interestingly, the First Circuit noted that three circuit had admitted inscription evidence as non-hearsay. Nonetheless, the First Circuit "accepted" that the inscription statement may be hearsay, but was admissible under the residual hearsay exception.

For more on the Koch case, see Computer User Name, Authored Files and Manufacturer’s Inscription Was Not Hearsay Evidence.

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