Agent Testimony On Firearms' Interstate Travel Did Not Violate "Best Evidence Rule"

In felon in possession of firearms trial, agent's use of books and computer databases to conclude that the charged firearms were manufactured out of state and therefore traveled in interstate commerce (an element of the offense), did not mean that his testimony was offered “to prove the content” of the books and computer files used; the FRE 1002 best evidence rule did not require submission of the books and computer files into evidence, in United States v. Smith, 566 F.3d 410 (4th Cir. May 26, 2009) (No. 07-5123)

Occasionally, a party misapplies FRE 1002 in an attempt to exclude inconvenient evidence. The rule does not block the admission of evidence that states a fact about a writing or recording. Because the evidence is offered to prove an issue other than the exact terms of a document's content, it is not subject to the best evidence rule. In a recent case, the Fourth Circuit reviewed the scope of the best evidence rule under FRE 1002 and explained why it did not apply to books and databases used as references.

Trial Court Proceedings: Agent Testimony

In the case, defendant Smith was charged with drug trafficking and firearms offenses after a search of his apartment revealed drugs, drug paraphernalia, and “two loaded handguns, two shotguns, ammunition, and cash.” At trial, the prosecution offered agent testimony to prove “the interstate nexus element of the felon-in-possession count. The Bureau of Alcohol, Tobacco, Firearms and Explosives (‘ATF‘) agent testified that “the firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. Defense counsel objected to the testimony on the ground that it would violate FRE 1002. Defense counsel argued that the agent’s testimony violated the rule since it was based on written reference materials and ATF computer databases which were not offered into evidence.” The trial permitted the agent to testify without “requiring him to introduce any reference materials into evidence.” Smith, 566 F.3d at 412.

The agent [Cheramie] then testified before the jury that “‘based on [his] training and experience,’ he was able to determine that Smith's Talon Industries Model T200 pistol was manufactured in Montana; the Ruger P85 Mark II pistol was manufactured in Prescott, Arizona; the Winchester Model 12 shotgun was manufactured in New Haven, Connecticut; and the High Standard Model K1200 shotgun was manufactured in Hamden, Connecticut.” Smith, 566 F.3d at 413. The defendant was convicted and sentenced to 197 months in prison. On appeal, he claimed that the agent erroneously testified “in violation of the ‘best evidence rule’ … about the place where the firearms were manufactured in order to demonstrate that they traveled in interstate commerce.” Smith, 566 F.3d at 411.

Fourth Circuit Review: "Misconception Of The "Best Evidence Rule"

The circuit affirmed the admission of the testimony. The circuit noted the trial court declined to admit the agent’s testimony as that of “an expert in interstate nexus” but rather that it admitted the agent’s testimony based on “his training and experience at ATF where he specifically said he had specialized training in interstate nexus, where he can testify as to what conclusions he would draw from his training and experience as to whether these weapons traveled in interstate commerce.” Smith, 566 F.3d at 413.

The circuit dismissed as without merit the defense contention that the testimony was erroneously admitted. As the circuit explained, the defense argument proceeded on:

a misconception of the "best evidence rule" and Rule 1002. In asserting that Cheramie should not have been allowed to testify to the fact of a firearm's place of manufacture without introducing the writings and other materials from which he learned that fact, Smith suggests that the best evidence rule required the government to introduce the best evidence of that fact, i.e., the writings and other materials from which Cheramie learned the fact, especially when Cheramie did not have personal first-hand knowledge of the fact. But Federal Rule of Evidence 1002 is not nearly so broad.
Smith, 566 F.3d at 413 (“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required.” FRE 1002 (emphasis added); noting that “the Rule exists to afford guarantees against inaccuracies and fraud by requiring that the original of the document be offered…. Thus it is more accurate to refer to Rule 1002 as the ‘original document rule,’ not the ‘best evidence rule.’”).

The trial court’s admission of the agent’s testimony did not violate FRE 1002 because:

[T]he government never sought to prove the content of any writing or recording relating to the firearms or their places of manufacture. It sought only to prove the fact that the firearms were manufactured in States other than North Carolina, where they were recovered during the search of Smith's apartment. The place of the firearms' manufacture was a fact existing independently of the content of any book, document, recording, or writing. Just because Special Agent Cheramie consulted books and computer databases in reaching his conclusion about the firearms' place of manufacture does not mean that his testimony was offered ‘to prove the content’ of the books and computer files. Accordingly, Rule 1002 did not require submission of the books and computer files into evidence.
Smith, 566 F.3d at 414 (citing United States v. Sliker, 751 F.2d 477, 483 (2d Cir. 1984) (no need to introduce original bank insurance policy just because witness testified to the fact the bank was insured); cf. United States v. Alexander, 326 F.2d 736, 740 (4th Cir. 1964) (proving the contents of a check)).


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