Fifth Circuit Reviews Challenge To Pretrial Notice For Business Records Admitted Under FRE 902(11)

In marijuana conspiracy prosecution, admitting certified copies of phone business records under the pretrial notice requirement of FRE 902(11) where the government provided the records six months before trial and gave written pretrial notice of its intent to introduce the records five days before trial, in United States v. Olguin, 643 F.3d 384 (5th Cir. 2011) (No. 09-10916)

Under FRE 902(11), certified business records may be self-authenticated, and the business records can be admitted without a foundational witness. Before a party can use this rule, the party must satisfy the requirement of written pretrial notice. In this regard, FRE 902(11) provides:

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
The rule does not specify how much time is required for notice.

The Fifth Circuit recently considered this notice requirement in a drug prosecution. Following an investigation, thirty-five defendants were charged with conspiring to distribute marijuana and related offenses. At trial, in support of the charges, the government introduced phone records which had been certified and without a business records custodian. After the jury convicted the defendants who had proceeded to trial, on appeal the defense challenged the admission of the certified phone records.

The Fifth Circuit found there was no error in admitting the certified phone records. The circuit noted that “[w]hile the rule does not establish what constitutes a fair amount of time, the time must be of such a duration so that the ‘affidavit can be vetted for objection or impeachment in advance.’” Olguin, 643 F.3d at 390 (quoting United States v. Brown, 553 F.3d 768, 793 (5th Cir. 2008)).

The circuit agreed with the trial court that the provision of records and notice was sufficient to comply with the pretrial notice requirement under FRE 902(11):

[Defendant] Ledesma’s counsel received the records in December 2008, six months before trial. Five days before trial, the Government provided written notice to introduce the phone records. At trial, the Government indicated that an affidavit was included with the records received in December 2008. To the court, this time-span satisfied [United States v.] Brown vetting requirements.
. . .

Here, the Government made the records available in a timely manner and to the district court’s — and this court’s — satisfaction. The admission of the records did not constitute reversible error, and any complained-of potential error would be harmless. No error that could conceivably affect Ledesma’s rights is discernible. As such, the admission of the phone records, and their timeliness, does not constitute reversible error.
Olguin, 643 F.3d at 391.

In essence, the Fifth Circuit concluded that the purpose of the pretrial notice requirement (to allow the certification and records to be vetted to lodge an objection or other challenge) was fulfilled.

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