June 05, 2016 Practice Points

Summaries of Western Union and Moneygram Records Properly Admitted

Additional sources of corroboration can cure the hearsay problem that a third party’s involvement in creating a business record introduces

by Michael R. Lied

Frederick Coleman, Jerry Brown, Darrion Capers, and Nicholas Clark were convicted of drug offenses after a jury trial. United States of America v. Brown, et al., ____ F.3d ____, 2016 WL 2789425. 

The government’s theory was that Coleman and Brown obtained the cocaine in Chicago, cooked it into crack with the help of the runners at different locations in Kewanee, Illinois, and Chicago, and had members of the conspiracy transport the drugs from Chicago to Kewanee. The conspiracy sometimes sought assistance from customers and sometimes compensated those customers with crack. The conspiracy’s members used Western Union and MoneyGram to circulate money among sellers, purchasers, and wholesalers, often handing cash to family members, friends, or customers and directing that they conduct a transfer. The government had obtained through subpoenas the records of the two companies showing wire transfer transactions between the defendants and others allegedly involved in the conspiracy. 

Before trial, the defendants learned that the government intended to use the MoneyGram and Western Union records in its case-in-chief. They filed a motion in limine, which was denied. They objected again at trial. The lead investigator in the case, Inspector Nicholas Welgat, created summary exhibits from the subpoenaed records. The summaries grouped transactions by sender and listed the amount of money sent, the date of the transaction, the sender’s name and address, the recipient’s name, and the agency from which the funds were sent. The exhibits included the sender’s phone number and recipient’s address for some transactions. The government witnesses testified that the summary exhibits were generally consistent with their recollections of the drug transactions in which they had engaged with the defendants, and the government later moved to admit the actual exhibits through Inspector Welgat. 

The district court admitted the exhibits as summaries of business records. Federal Rule of Evidence 1006 allows a proponent of evidence to use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court, provided that the proponent makes the content available to the other party. Federal Rule of Evidence 803(6) allows admission of hearsay documents that record a “regularly conducted activity” where (a) the records are made at or near the time of the activity by—or from information transmitted by—someone with knowledge; (b) the records are kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; (c) making the record is a regular practice of that activity; (d) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification; and (e) neither the source of the information nor the method or circumstances of preparation indicate a lack of trustworthiness. Federal Rule of Evidence 902(11) identifies certified domestic records of a regularly conducted activity as self-authenticating where the custodian or other qualified person does the certifying in compliance with a federal statute or Supreme Court rule. 

On appeal, the defendants maintained and that the involvement of a third party in creating the MoneyGram and Western Union records—namely, the customer making the wire transfer—removed those records from the ambit of Rule 803(6). Third-party involvement, however, is not inevitably fatal. In United States v. Emenogha, 1 F.3d 473,484 (7th Cir. 1993), the court found that additional sources of corroboration can cure the hearsay problem that a third party’s involvement in creating a business record introduces. There, the defendant argued that bank records of drug-money transactions purportedly conducted by him were inadmissible because an imposter might have been impersonating him at the bank. 

The court found this argument unavailing because the bank president testified that he recognized the defendant as a customer, and the bank’s regular practice was to request an identification and account number before completing a transaction.  

The appeals court found no abuse of discretion in the district court’s decision to admit the Western Union and MoneyGram records. The court agreed with the defendants that certification alone would not be enough; a Rule 902(11) certification cannot overcome Rule 803(6)’s requirement that the records must be trustworthy. And a government witness testified that Western Union and MoneyGram did not require identification for transfers of less than $1,000, meaning that one form of corroboration was not present for at least some of the transactions. But the record contained more than certifications. There was testimony of witnesses about their recollections of actually conducting the transactions, and that testimony filled any gap left by the certifications. 

The court of appeals recognized that the records and the testimony were not fully consistent: Some witnesses testified that the summaries included some transactions that they recalled conducting and some that they did not. Any inconsistencies go to the weight of the evidence, not its admissibility. See United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985) (“The determinations whether a proper foundation has been laid for application of the business records exception to a particular document and whether the circumstances of the document’s preparation indicate untrustworthiness are within the discretion of the trial court.”); United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013) (finding no abuse of discretion in admission of pharmacy drug purchase records, noting that a driver’s license was required for the purchases and a signature was obtained for many of them, and “Towns was free to make arguments at trial that he was not the actual purchaser of the drugs, but accuracy does not control admissibility.”).  

According to the appeals court, the government’s use of summary charts that were not fully corroborated by their witnesses may have been “sloppy,” but the evidence was reliable enough to reach the jury. Any further discounting was for the jury to make. 

Take away: This case provides insight into introducing summaries of business records into evidence.

Michael R. Lied is an attorney with Howard & Howard Attorneys PLLC in Peoria, Illinois.

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