Federal Evidence Review

Eighth Circuit considers the scope of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) and concludes it does not apply to business records that have been certified by a custodian of records under FRE 803 and FRE 902, in United States v. Ali, 616 F.3d 745 (8th Cir. Aug. 5, 2010) (No. 09-3284)

In Melendez-Diaz v. Massachusetts, the Supreme Court held that certificates of forensic analysis are “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). One question after this case is whether the Confrontation Clause bars custodian of records certifications for business records. The Eighth Circuit recently addressed this issue.

In the case, defendant Ali had a tax preparation business which came under investigation after an Internal Revenue Service Fraud Detection Center report highlighted suspected fraudulent tax returns. After further investigation, including recorded conversations with the defendant which were obtained by a cooperating witness and the execution of a search warrant to seize evidence in the case, the defendant was charged with aiding and assisting in the preparation of false individual income tax returns. At trial, taxpayers testified that the defendant helped them falsely claim dependants to obtain an increased refund. For three taxpayers, no preparer was listed on the tax returns. The government offered an exhibit which was certified by a custodian of business records of HSBC Taxpayer Financial Services (HSBC). The exhibit included records of the refund anticipation checks of three taxpayers and copies of the cashier’s checks, along with a letter from the loss prevention manager at which provided:

Per your request, this is a written statement to verify that [three taxpayers] filed 2002 income tax returns with Cedar Tax Services and applied for Refund Anticipation Checks. Upon receipt of funds from the Internal Revenue Service (IRS), authorizations were sent to the office of Cedar Tax Services to print the checks. The checks were printed at Cedar Tax Services, owned by Siyad Ali at 2555 Leavenworth Street, Omaha, NE 68105.

Ali, 616 F.3d at 751. The trial court overruled the defendant’s foundation and relevance objection. The government urged that the record was admissible as a business record under FRE 803 and self-authenticating under FRE 902 (certified domestic records of regularly conducted activity). The defendant was convicted. On appeal, for the first time he claimed the exhibit violated the Confrontation Clause under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009).

The Eighth Circuit reviewed the issue for plain error since no objection had been raised. The circuit summarized and distinguished the Melendez-Diaz case concerning the business records:

In Melendez-Diaz v. Massachusetts, the Court held that admission of laboratory reports via a “certificate of analysis,” rather than through the live testimony of the laboratory analyst violated the Confrontation Clause. 129 S. Ct. at 2542. The Court explained that the laboratory reports were testimonial because they were prepared for the purpose of providing evidence against the accused at trial. Id. at 2532. Melendez Diaz, however, does not apply to the HSBC business records that were kept in the ordinary course of business. These documents were nontestimonial and thus do not implicate the Confrontation Clause. See United States v. Mashek, 606 F.3d 922, 930 (8th Cir. 2010) (citing Crawford v. Washington, 541 U.S. 36, 56 (2004)).

Ali, 616 F.3d at 752. A separate issue was presented concerning the letter from the loss prevention manager which summarized the processing of the tax returns for the three tax payers. The circuit noted that “[t]he letter was arguably equivalent to live, in-court testimony and thus not admissible as a business record.” Ali, 616 F.3d at 752. However, since the defendant did not object on Confrontation Clause ground at trial, the issue was reviewed for plain error and none was found based on substantial evidence in the case.

After the landmark Confrontation Clause decision in Crawford v. Washington, 541 U.S. 36 (2004), the courts have generally held that business records are non-testimonial and therefore not subject to the Confrontation Clause. The Ali case clarifies that business records certifications, in compliance with FRE 803(6) and FRE 902(11), are not testimonial and therefore are not substitutes for live testimony under Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009).