USA v. James Green. 09-3098.
The government charged defendant James Green with four counts of wire fraud. His cousin, co-defendant Joseph Green, recruited Green to purchase properties in exchange for cash. Throughout the trial, Green argued that he was a victim of the fraudulent scheme, left holding the bag as the purchaser of properties that were supposed to be rehabilitated but were not.
A. Admissibility of Business Records
Green appeals the district court’s admission of certain loan documents under Federal Rule of Evidence 902(11). Rule 902(11) streamlines the admission of certain inherently reliable documents by allowing a party to introduce a record of regularly conducted activity without live testimony from a records custodian so long as the record is accompanied by a proper written certification from a custodian or otherwise qualified person. See Fed. R.Evid. 902(11). The Rule requires that the record be admissible under Rule 803(6), which creates a hearsay exception for business records and reports “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Fed.R.Evid. 803(6).
In advance of trial, the government filed notice of its intent to offer evidence pursuant to Rule 902(11). Green and his co-defendants objected, claiming that the records did not meet the Rule’s requirements. Relevant to this appeal, they objected to the introduction of records certified by Charlene Batalla, a former employee of Equity Express mortgage brokerage firm, who was also a defendant in the scheme.
They argued that Batalla, as a co-defendant, was not trustworthy as a custodian. In 2008, Batalla pled guilty to falsifying documents in the defendants’ conspiracy. In 2009, Batalla certified as records made in the regular course of business.
Rule 902(11) is a powerful and efficient short-cut, but it includes important built-in safeguards that cannot be taken lightly. Those safeguards include providing opposing counsel with advance notice of any Rule 902(11) certifications to give that party “a fair opportunity to challenge” the certifications, which could involve calling the certificate’s signer to testify as Green demanded here. See Fed.R.Evid. 902(11). see also United States v. Adefehinti, 510 F.3d 319, 327-28 (D.C.Cir.2008) (amended opinion).
We have noted that in some circumstances a Rule 902(11) certification will not implicate a defendant’s Confrontation Clause rights because the certificate itself is not testimonial. See United States v. Ellis, 460 F.3d 920, 927 (7th Cir.2006). But the Rule does not give a party license to dump business records into evidence without giving an adverse party an opportunity to question the certificate’s signer where such questioning may be warranted. See Adefehinti, 510 F.3d at 328.
The government was treading on dangerous ground by using Rule 902(11) here to introduce not just these but hundreds of other records to prove the truth of the matters asserted without regard to the many layers of hearsay and the Confrontation Clause rights that those records may have implicated.
In any event, we need not decide whether the district court erred by admitting evidence based on the Batalla certification because any such error would have been harmless. The parties’ supplemental materials show that many of the documents within each file were duplicates of business records maintained by other lenders that were also admitted without objection.
Given this overlap and the limited use of the files, Green has not shown that he was prejudiced by the Equity Express records certified by Batalla. In the absence of prejudice, we need not reach Green’s arguments that Batalla’s certificate of authenticity failed to meet the requirements of Rules 803(6) and 902(11) or that its use violated his Sixth Amendment right.