Using The Hearsay Exception For Published Compilations Under FRE 803(17)

In highlighting use of FRE 803(17), in a carjacking prosecution, the Third Circuit finds no error in testimony by an agent that he used the vehicle’s identification number (VIN) number to trace it on a database compiled by the National Insurance Crime Bureau (NICB) to its manufacture in a foreign state, helping to establish the interstate commerce element of the offense; noting that the NICB database was the “only practical way to determine” the issue and was “reliable because … the database is accepted and relied upon by those in the industry and by law enforcement agencies,” in United States v. Woods, 321 F.3d 361 (3d Cir. Jan. 21, 2003) (No. 01-3565)

Case examples involving the use of the Published Compilation exception to the Hearsay Rule in FRE 803(17) are not frequent. The hearsay exception authorizes admission of evidence of market quotations, tabulations, lists, directories, or similar published compilations for their truth if the compilation is generally used and relied upon by “the public or persons in particular occupations.” FRE 803(17). As the Advisory Committee Notes to the exception suggest, the reason for the rule is that these compilations are generally reliable and this is assured by its general use by members of the public or professions. If the compilation was not accurate, it is likely there would be minimal use or demand for publication of the compilation. See ACN 803(17). One interesting case by the Third Circuit in 2003 noted the applicability of FRE 803(17) and contrasted it with the business record hearsay exception. One issue which was not directly addressed in the opinion was the circuit's treatment of a computerized “database” as the equivalent of a “published compilation.”

In the case, victim Pressley was using his 1990 Chevrolet Lumina minivan to deliver newspapers in Philadelphia. While engaged in this delivery, he was robbed by two persons who then stole his minivan. A few days later they located and arrested defendant Woods who was driving the minivan. He was charged with armed carjacking, which required proof that the stolen vehicle “was involved in interstate commerce.” Woods, 321 F.3d at 362 (quoting 18 U.S.C. § 2119). At trial, the government established the interstate commerce element through the testimony of an agent:

“[Special Agent] Heine, who for four years had been responsible for conducting FBI investigations involving property that is transported or shipped in interstate commerce, 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. The jury returned a guilty verdict and the defendant appealed, raising as his sole issue that “[t]he government's only evidence of interstate commerce was the testimony of FBI Special Agent Heine, to which Woods objected on the ground that it was inadmissible hearsay.”

The Third Circuit examined the evidence under the business record exception of FRE 803(6) but then noted that it did not need to reach the issue because it was clear the evidence was admissible as a published compilation under FRE 803(17). As explained by the circuit:

“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.

“In Woods's case, Heine, an FBI agent with four years' experience investigating interstate commerce matters, testified that the NICB database indicated that the vehicle with the minivan's VIN was manufactured in Tarrytown, New York. 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. We will therefore approve the District Court's decision to admit Heine's testimony, and hence we will sustain Woods's carjacking conviction.”
Woods, 321 F.3d at 364-65 (citations to record omitted).

The circuit buttressed its conclusion with citations to learned treatises and the practices of other circuits. It noted the following comments in evidence treatises regarding FRE 803(17):

  • 5 Weinstein's Federal Evidence § 803.19[1] (Matthew Bender 2002): “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.”
  • Saltzburg, Martin & Capra, 4 Federal Rules of Evidence Manual § 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.”)

In addition, the circuit’s conclusion was supported by “other courts [that] have admitted similar evidence in similar situations.” The circuit cited in particular, United States v. Goudy, 792 F.2d 664, 674 (7th Cir. 1986) (admitting a bank directory showing the “routing number” prefix for Los Angeles). The Third Circuit found that “[t]he facts in Goudy … are particularly analogous to those in the case at bar. There, the government sought to prove that certain bank checks traveled in interstate commerce. An FBI agent with several years' experience in bank investigations testified that the 1987 volume of Polk's Bank Directory indicated that banks with the routing prefix ‘16’ were located in Los Angeles, California. Goudy, 792 F.2d at 674. The district court admitted the directory into evidence pursuant to Fed. R. Evid. 803(17), and the Seventh Circuit affirmed, holding that an FBI agent ‘with several years' experience in banking investigations’ could use a directory of bank routing numbers to show that a particular check was presented for payment at a bank in California, and that this evidence was sufficient to demonstrate interstate transportation.” Woods, 321 F.3d at 363-64.

The Woods case provides some insight into the application of FRE 803(17). While the rule is not commonly applied, the case demonstrates that other directories and compilations may be useful to prove an element at trial.

Federal Rules of Evidence