187 F.3d 1222 (10th Cir. 1999), 98-6152, United States v. Samaniego

Docket Nº:98-6152
Citation:187 F.3d 1222
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROLANDO SAMANIEGO, Defendant-Appellant.
Case Date:August 18, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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187 F.3d 1222 (10th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ROLANDO SAMANIEGO, Defendant-Appellant.

No. 98-6152

United States Court of Appeals, Tenth Circuit

August 18, 1999

Appeal from the United States District Court for the W. District of Oklahoma. D.C. No. CR-97-152-C

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Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, and Leslie M. Maye, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender, Denver, Colorado, and Jenine Jensen, Assistant Public Defender, Denver, Colorado, for Defendant-Appellant.

Before TACHA, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Rolando Samaniego was convicted in the United States District Court for the Western District of Oklahoma of 31 drug-related counts. His appeal is primarily addressed to the district court's admission of several summaries under Federal Rule of Evidence 1006 over his objection that the underlying documents constituted hearsay and the government failed to lay the foundation required for their admission. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSES.

A district judge's decision to admit evidence is reviewed for an abuse of discretion. See Harris Mkt. Research v. Marshall Mktg. & Communications, Inc., 948 F.2d 1518, 1525 (10th Cir. 1991). Because evidentiary rulings are within the sound discretion of the district court, this court will reverse only upon a "definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993) (quotation omitted). A district court abuses its discretion if its decision is based upon an error of law. See United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1116 (10th Cir. 1998).

At trial, FBI agent Mark Seyler testified at length about his investigation of the drug-trafficking ring in which Samaniego was implicated. A significant part of Agent Seyler's testimony focused upon summaries he made of subpoenaed telephone records. None of the underlying telephone records were admitted into evidence. The summaries, however, were received as government exhibits 900 through 906 over the objections of defense counsel. Defense counsel objected to their use for several reasons, including the inadmissibility of the underlying documents as hearsay.

Rule 1006 states that summaries are permissible when voluminous evidence "cannot conveniently be examined in court," and when the evidence upon which the summary is based is made available to the other parties at a "reasonable time and place." Fed. R. Evid. 1006. The materials upon which the summary is based need not themselves be admitted into evidence. See 6 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 1006.02 (Joseph M. McLaughlin, ed., 1999) [hereinafter Weinstein's Federal Evidence]. Admission of summaries, however, is conditioned on the requirement that the evidence upon which they are based, if not admitted, must be admissible. See, e.g., Harris, 948 F.2d at 1525 (holding that Rule 1006 "clearly permits the use of a summary of business records provided 'all of the records from which it is drawn are otherwise admissible'" (quoting State Office Sys., Inc. v. Olivetti Corp. of Am., 762 F.2d 843,

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845 (10th Cir.1985))); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir. 1992); Weinstein's Federal Evidence, § 1006.06[3]. A contrary result would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay. See United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir. 1979) ("We do not believe that Congress intended that counsel could abrogate other restrictions on the admissibility--like the hearsay rule--by the use of summaries . . . .").

The telephone records from which the summaries were drawn are indubitably hearsay. The obligation of establishing the applicability of a hearsay exception for these records falls upon the government as the proponent of the evidence. See, e.g., United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989) (burden of proving admissibility of underlying materials is proponent's). The pertinent hearsay exception for business records, Federal Rule of Evidence 803(6), contains multiple foundational hurdles which must be cleared before the summaries may be admitted. See United States v. Cestnik, 36 F.3d 904, 909-10 (10th Cir. 1994). Rule 803(6) requires that the custodian or other qualified witness testify that (1) the records were made contemporaneously with the events and "kept in the course of a regularly conducted business activity," and (2) "it was the regular practice of that business activity to make the [record]."1 Fed. R. Evid. 803(6); cf. United States v. Reilly, 33 F.3d 1396, 1414 (3d Cir. 1994).

No effort whatsoever was made to establish the foundational...

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