Records from ICE database are not excludable hearsay and are not testimonial evidence for Confrontation Clause purposes
EVIDENCE/CONFRONTATION CLAUSE United States v. Mendez, No. 06-3282, ___ F.3d ___ (10th Cir. Jan. 24, 2008)(Kansas). Appeal of convictions for possession of firearm while being unlawful user of controlled substance and while being alien not lawfully in United States in violation of 18 U.S.C. §§ 922(g)(3) and 922(g)(5). HELD: (1) Testimony by government agent that Immigration and Customs Enforcement Agency database contained no record that defendant had lawfully entered United States was properly admissible under public records exception to hearsay rule at Rule 803(10) of the Federal Rules of Evidence. Records contained in ICE database are not excludable under Rule 803(8)(B) as records created by law enforcement personnel for purpose of prosecution. ICE database (U.S. Central Index System) is maintained in connection with ongoing regulatory functions independent of prosecution with ICE personnel acting as public officials with duty to accurately create records. (2) Public records such as those in ICE database recording instances of lawful entry to United States are not testimonial in nature as defined by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). Therefore, when used as evidence, such records do not implicate Confrontation Clause. (3) Notebook found in defendant’s residence that recorded names of customers and dollar amounts of transactions was not improper hearsay evidence. Notebook used as drug ledger was not introduced to prove truth of matter asserted (i.e., truth of identity of drug customers and amounts they paid for drugs), but instead was introduced to show notebook was used as drug ledger and therefore was one of several "tools of the [drug] trade" possessed by defendant from which the jury could properly infer that defendant was involved in drug distribution operation. Read the opinion here. |
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