U.S. v. Cestnik

• Decision Date: 28 September 1994
• Docket Number: No. 93-8016,93-8016
• Citation: 36 F.3d 904
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. CESTNIK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 904

36 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. CESTNIK, Defendant-Appellant.

No. 93-8016.

United States Court of Appeals, Tenth Circuit.

Sept. 28, 1994.

Tom Sedar, Casper, WY, for defendant-appellant.

John R. Barksdale (Richard A. Stacy, U.S. Atty., Casper, WY, was with him on the brief), for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and SAM ^*, District Judge.

TACHA, Circuit Judge.

A jury found defendant Ronald J. Cestnik guilty on eight counts of a multi-count indictment involving the distribution of marijuana. Defendant was convicted in count I of conspiracy to distribute marijuana in violation of 21 U.S.C. Secs. 841(a), 841(b)(1)(B)(vii), 846; in count II of conspiracy to launder money in violation of 18 U.S.C. Sec. 371; in counts III through VI of aiding and abetting money laundering in violation of 18 U.S.C. Secs. 2, 1956(a)(1)(A)(i); in count VIII of distributing a controlled substance to a person under 21 in violation of 21 U.S.C. Secs. 841(a)(1), 859(a); and in count XII of engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. Defendant was sentenced to 235 months for counts I and VIII, 60 months for counts II through VI, and 240 months for count XII, with each sentence running concurrently.

Defendant appeals his conviction on four grounds. He asserts that the trial court erred in admitting into evidence Western Union "to-send-money" forms, computer-generated money transfer records, and various motel records. He also contends that the evidence presented at trial was insufficient to sustain his CCE conviction. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

I. "To-Send-Money" Forms

We first address whether the trial court erred in admitting the "to-send-money" forms. Evidentiary rulings are committed to the discretion of the trial court, and we review them only for abuse of discretion. United States v. Zimmerman, 943 F.2d 1204, 1211 (10th Cir.1991). Our review is even more deferential where the evidentiary ruling concerns the admissibility of what is claimed to be hearsay evidence. United States v. Emmons, 24 F.3d 1210, 1216 (10th Cir.1994). Finally, we consider the record as a whole in reviewing evidentiary rulings. Boren v. Sable, 887 F.2d 1032, 1034 (10th Cir.1989).

At trial, the government introduced more than sixty Western Union "to-send-money" forms into evidence to support its charges that defendant laundered money and engaged in a continuing criminal enterprise. Each of the forms states that a substantial sum, usually between $1,000 and $2,500, was wired from Wyoming to Laredo, Texas. The forms do not reveal defendant's name as the sender but instead contain several other names, such as "Jim Simms" and "Bill Johnson," which the government claimed were aliases of defendant. The government introduced additional evidence linking these aliases to defendant.

A Western Union "to-send-money" form consists of two distinct sides. The information contained on the right side is compiled by a Western Union agent. It lists the name of the agency conducting the transfer, the date of the transfer, a ten-digit money transfer control number, and the amount of the transfer. The government used the control number to tie the "to-send-money" forms to computer-generated money transfer records and canceled checks issued by Western Union. These documents, in turn, reveal the recipient of the transfer, where the money was received, and the place from which the money was sent.

The right sides of the "to-send-money" forms constituted hearsay as introduced at trial; they are out-of-court statements that were offered by the government for the truth of the matter asserted, namely that a particular amount of money was transferred on a specific date. The forms were nevertheless properly admitted if they fell under the business records exception. Rule 803(6) of the Federal Rules of Evidence states that business records will not be excluded under the hearsay rule if they meet the following criteria:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

To support the introduction of the forms under this exception, the government called witness Jerry Arrendale, Chief Compliance Officer and Custodian of Records for Western Union. Mr. Arrendale described the customary procedure Western Union agents follow in entering the information onto the "to-send-money" forms and how a unique ten-digit control number is assigned to each transfer. He identified several of the government's exhibits as Western Union forms and testified that the information is transcribed by Western Union agents in the normal course of business.

We find this testimony sufficient for the trial court to have concluded that the right sides of the "to-send-money" forms satisfied the requirements of Rule 803(6). The trial court did not abuse its discretion in ruling that the right sides of the documents were admissible business records.

The left sides of the "to-send-money" forms present a more vexing problem. The left side of a "to-send-money" form contains space for the sender to write in his or her name, address, and phone number, as well as the name of the intended recipient. The controversy here concerns the senders' names. Mr. Arrendale testified that Western Union agents do not verify the information filled out by the sender unless the transaction exceeds $10,000. ¹ Defendant therefore contends that the senders' names do not satisfy the requirements of Rule 803(6) and were inadmissible.

We agree that the senders' names were not admissible under the business records exception to the hearsay rule. As this court explained in United States v. McIntyre, 997 F.2d 687 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 736, 126 L.Ed.2d 699 (1994), information included in a business record that is provided by a customer may still satisfy the requirements of Rule 803(6) "[i]f the business entity has adequate verification or other assurance of accuracy of the information provided by the outside person." Id. --- U.S. at ----, 114 S.Ct. at 700; see also Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1979) (requiring "indicia of reliability"). In McIntyre, we listed two ways to demonstrate this "guarantee[ ] of trustworthiness": (1) proof that the business has a policy of verifying patrons' identities by examining their credit cards, driver's licenses, or other forms of identification; or (2) proof that the business possesses "a sufficient self-interest in the accuracy of the [record]" to justify an inference of trustworthiness. 997 F.2d at 700. Here, however, neither "indicia of reliability" is present. Western Union agents did not verify senders' identifications, and nothing else in the record indicates that Western Union had a sufficiently compelling self-interest in ensuring the accuracy of information filled out by its customers to justify an inference of reliability.

But a document need not meet the requirements of Rule 803(6)--or any other exception to the hearsay rule--if it is nonhearsay. A document can be hearsay only when it is offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). ² That is, a document that is hearsay when offered to prove its truth will not be excluded under the hearsay rule if offered for some other purpose. See United States v. Bowser, 941 F.2d 1019, 1021 (10th Cir.1991) (testimony by officer that informant said that defendant carried a gun was admissible not to prove that defendant carried a gun but "to explain the officer's aggressive conduct toward the defendant").

In McIntyre, the government offered the names on "to-send-money" forms for their truth--to show that the sender named on the form, or someone claiming to have the name on the form, actually sent the money ³--and we therefore held the names inadmissible. 997 F.2d at 701-02; see also United States v. Jefferson, 925 F.2d 1242, 1253 (10th Cir.1991) (holding pager bills inadmissible to show that named individual actually purchased pager services). Here, in contrast, the government offered the senders' names not to prove the identity of the sender but as circumstantial evidence linking the false names to the money transfers. The government then introduced supplemental evidence to prove that the fictional names were the defendant's aliases and that it was therefore the defendant who actually transferred the money. ⁴ Accordingly, the government contends the senders' names were nonhearsay.

Because other evidence introduced by the government sufficiently demonstrated that the names were fictitious and that the sender's assertions that "I'm Jim Simms" and "I'm Bill Johnson" were intentional falsehoods, we agree that the names were nonhearsay because they were not offered for their truth. See United States v. Peveto, 881 F.2d 844, 853-84 (10th Cir.) (traffic ticket was inadmissible for truth of the matters asserted therein but admissible to tie defendant to the vehicle), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Ashby, 864 F.2d 690, 693 (10th Cir.1988) (title to car, although inadmissible to prove defendant was owner, was admissible as circumstantial evidence tying defendant to the car), cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). Because the government did not offer the forms to prove the truth of the assertions made by the...