Vehicle Identification Number From National Insurance Crime Bureau Admitted To Establish Interstate Commerce Under FRE 803(17)

In federal carjacking prosecution, agent's testimony about tracing the vehicle identification number of the stolen minivan was admissible under FRE 803(17) (Market Reports and Similar Commercial Publications) to establish the interstate commerce element for the offense, in United States v. Woods, 321 F.3d 361 (3d Cir. 2003)

As an exception to the hearsay rule, FRE 803(17) (Market Reports and Similar Commercial Publications) permits commercial publications to be admitted as an exception to the rule excluding hearsay. Under the rule, “Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations” may be admitted. As noted in the ACN, “The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.” While there are not many cases applying this exception, one example comes from the Second Circuit.

In the case, defendant Woods was prosecuted for committing federal carjacking case. In order to prove the interstate commerce element (“that the stolen vehicle was transported in interstate commerce”), the prosecution offered the testimony of an FBI Special Agent Jay Heine who:

explained that every vehicle that is manufactured in the world is given by its manufacturer a unique serial number, known as a VIN number, which consists of seventeen digits. He testified that, based on his years of experience, he is familiar with what each of the seventeen digits means to those in the trade. In this case, he explained, he was able to consult and rely upon the National Insurance Crime Bureau’s national database to determine that the minivan’s VIN number traced back to a manufacturing plant located in Tarrytown, New York, a clear indication that the vehicle had been transported in interstate commerce.

Woods, 321 F.3d at 362-63 (citations omitted). In overruling the defense objection to the agent’s testimony on hearsay grounds, the trial court concluded:

I'm admitting [Heine's testimony] because I find that the witness has testified that it's accepted by law enforcement agencies, relied upon by law enforcement agencies and others in the industry for the information the VIN number conveys and to those who know how to read them. And I find that this witness is competent to give that testimony. I find that it has independent reliability and I will therefore admit it.

Woods, 321 F.3d at 364 n.2. After his conviction, the defendant urged his appeal to be vacated based on inadmissible hearsay testimony from the agent.

The Third Circuit, noting that it had not previously considered application of the exception, affirmed the admission of the agent’s testimony. The circuit noted that it did not need to consider the defendant’s argument that the testimony was inadmissible under the business records exception, FRE 803(6), because the testimony was properly introduced under FRE 803(17).

The circuit noted the role of the rule as summarized by a treatise:

As with other hearsay exceptions, the admissibility of market reports and commercial publications under Rule 803(17) is predicated on the two factors of necessity and reliability. Necessity lies in the fact that if this evidence is to be obtained, it must come from the compilation, since the task of finding every person who had a hand in making the report would be impossible. Reliability is assured because the compilers know that their work will be consulted; if it is inaccurate, the public or the trade will cease consulting their product.

Woods, 321 F.3d at 364 (quoting 5 Weinstein’s Federal Evidence S 803.19[1] (Matthew Bender 2002); see also Saltzburg, Martin & Capra, 4 Federal Rules of Evidence Manual S 803-74 (8th ed. 2002) (“The Rule does not apply unless the proponent establishes that the reports are relied upon by the public or by people in a relevant field.”)).

The Third Circuit concluded the rule applied to the testimony:

We are convinced that the NICB report upon which Heine relied is both necessary and reliable. It is necessary because the database is the only practical way to determine where a particular car was manufactured. It is reliable because, as Heine testified without objection and the District Court subsequently found, the database is accepted and relied upon by those in the industry and by law enforcement agencies…. Because we are satisfied that the NICB database is both necessary and reliable, we conclude that it is precisely the type of evidence that Rule 803(17) envisions.

Woods, 321 F.3d at 364-65.

Given the few cases addressing the issue, the Woods case provides a useful example to admit market reports and related commercial publications under the rule. Consider other posts involving application of FRE 803(17).

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