U.S. v. Baker

• Decision Date: 15 August 2006
• Docket Number: No. 05-3336.,05-3336.
• Citation: 458 F.3d 513
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven L. BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

458 F.3d 513

UNITED STATES of America, Plaintiff-Appellee, v. Steven L. BAKER, Defendant-Appellant.

No. 05-3336.

United States Court of Appeals, Sixth Circuit.

Submitted: August 9, 2006.

Decided and Filed: August 15, 2006.

ON BRIEF:

Andrew T. Sanderson, Burkett & Sanderson, Inc., Newark, Ohio, for Appellant. Deborah A. Solove, United States Attorney, Columbus, Ohio, for Appellee.

Before: MOORE and SUTTON, Circuit Judges; KATZ, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Steven Baker appeals from the district court's entry of judgment against him on his conviction for mail fraud. Baker was involved in a scheme to defraud the insurance company for which he worked; his role was to fill out false sales reports and to mail them to company headquarters. On appeal, Baker argues that the district court erred in allowing the government to introduce into evidence certain postal records used in the scheme. For the reasons discussed below, we AFFIRM Baker's conviction.

I. BACKGROUND

Steven Baker and other Ohio-based employees¹ of Combined Insurance Company of America ("Combined") were convicted on various counts for their involvement in a scheme to defraud Combined.² The first step in the scheme was the creation of "ghost agents," who were former insurance sales agents no longer working for Combined but whose names were never removed from the company's books. Then, the defendants transferred sales made by actual agents to the ghost agents. The defendants were able to accomplish this by asking the actual agents to turn in blank sales reports. Baker, who did administrative work for Peter Vasilakos,³ was responsible for filling out the sales reports Baker testified that he also filled out and signed reports for sales agents who no longer worked for Combined. Finally, when Combined generated the commissions for the ghost agents' accounts, the defendants had arranged to have the commission checks mailed to a post office box or other address to which the defendants had access rather than to the ghost agents themselves.

On September 19, 2003, Baker was charged with one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, eight counts of mail fraud in violation of 18 U.S.C. § 1341 and § 2, and one count of conspiracy to defraud the government in violation of 18 U.S.C. § 371. At the trial, the government called as a witness Donald Simmons, a postal inspector; Simmons presented evidence relating to the post office boxes used in the defendants' scheme to defraud Combined. Defendant Rocky Edwards's counsel objected to the admission of a series of postal records that Simmons provided, but the district court overruled this objection. The decision to admit this evidence is the basis for Baker's appeal and will be discussed in further detail below. At the conclusion of the trial, the jury found Baker guilty on all counts of mail fraud but not guilty of conspiracy to defraud the government, and it was unable to reach a verdict as to the count of conspiracy to commit mail fraud.⁴ Baker was sentenced to fifteen months of imprisonment, three years of supervised release, and an $800.00 special assessment. Baker timely appealed the district court's entry of judgment against him.

II. ANALYSIS

A. Admission of Postal Records

Baker contends that the district court erred in allowing the government to introduce the postal records on the basis that the records constituted inadmissible hearsay; the government responds that the evidence was properly admitted as business records pursuant to Federal Rule of Evidence 803(6).

1. Standard of review

"`In reviewing a trial court's evidentiary determinations, this court reviews de novo the court's conclusions of law and reviews for clear error the court's factual determinations that underpin its legal conclusions."' United States v. Jenkins, 345 F.3d 928, 935 (6th Cir.2003) (quoting United States v. Salgado, 250 F.3d 438, 451 (6th Cir.2001)); see also Field v. Trigg County Hosp., Inc., 386 F.3d 729, 735 (6th Cir.2004) (explaining that this court reviews de novo "a district court's conclusions of law, such as ... whether evidence offered at trial constituted hearsay within the meaning of the Federal Rules of Evidence"); United States v. Dakota, 197 F.3d 821, 827 (6th Cir.1999) (same). We note that we have also reviewed a district court's evidentiary determinations for abuse of discretion. See, e.g., United States v. Gibson, 409 F.3d 325, 337 (6th Cir.2005) ("We review evidentiary rulings by the district court, including alleged violations of the hearsay rule, under the abuse-of-discretion standard."); Trepel v. Roadway Express, Inc., 194 F.3d 708, 716-17 (6th Cir.1999) (same).⁵

The decision as to the correct standard of review will not affect the outcome of this appeal, as "the district court's ruling on this issue should not be disturbed under either standard." United States v. Carmichael, 232 F.3d 510, 521-22 (6th Cir.2000), cert. denied, 532 U.S. 974, 121 S.Ct. 1607, 149 L.Ed.2d 472 (2001). However, we point out that these two standards of review are not in fact inconsistent, because "it is an abuse of discretion to make errors of law or clear errors of factual determination."⁶ United States v. McDaniel, 398 F.3d 540, 544 (6th Cir.2005), quoted in United States v. Payne, 437 F.3d 540, 544 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2909, 165 L.Ed.2d 937 (2006); see also Am. & Foreign Ins. Co. v. Gen. Elec. Co., 45 F.3d 135, 139 (6th Cir.1995) ("[A] `district court abuses its discretion only when it relies on clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.'") (quoting Fleischut v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 30 (6th Cir.1988)), quoted in United States v. Jones, 107 F.3d 1147, 1154 (6th Cir.), cert. denied, 521 U.S. 1127, 117 S.Ct. 2527, 138 L.Ed.2d 1027 (1997).

2. Failure to object at trial

The government points out that Baker's counsel did not object to the admission of the evidence in question at trial, although counsel for Baker's codefendant Edwards did so object.⁷ Appellee Br. at 9; J.A. at 251 (Trial Tr. at 732). "[W]hen a party fails to object to evidence at the trial court, his contention on appeal will prevail only if the trial court's evidentiary decision was plainly erroneous, thus affecting his substantial rights and resulting in a miscarriage of justice." United States v. Evans, 883 F.2d 496, 499 (6th Cir.1989). The Supreme Court has set forth the following test for plain-error review: "there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (third alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "If all three conditions are met, [we] may then exercise [our] discretion to notice a forfeited error, but only if (4) the error `seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.'" Id. at 467, 117 S.Ct. 1544 (third alteration in original) (internal quotation marks omitted) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770).

However, the government acknowledges that in certain circumstances courts have excused such a failure to object in light of an objection by a codefendant. In an analogous case, we refused to consider defendants' claims waived due to their failure to join in a codefendant's pre-trial motion to suppress evidence; we explained that "[a]dditional fourth amendment challenges by the other appellants raising the identical legal issue would neither have altered the [trial] court's ruling nor served the purposes of the pre-trial motion rule."⁸ United States v. Cassity, 631 F.2d 461, 466 (6th Cir.1980); see also United States v. Westbrook, 119 F.3d 1176, 1185 (5th Cir. 1997) ("We have sometimes allowed a defendant to preserve a district court error as long as one of his codefendants objected below."), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 1060, 140 L.Ed.2d 121 (1998); United States v. Pardo, 636 F.2d 535, 541 (D.C.Cir.1980) ("We recognize that in certain situations, it may be redundant and inefficient to require each defendant in a joint trial to stand up individually and make every objection to preserve each error for appeal."); United States v. Lefkowitz, 284 F.2d 310, 313 n. 1 (2d Cir.1960) ("We do not regard the failure of Dryja's counsel to except as barring Dryja from seeking reversal for error in the charge; Lefkowitz's exception called the matter to the judge's attention and further exception would have been fruitless."). These cases emphasize the futility of requiring each defendant to raise a redundant objection. Westbrook, 119 F.3d at 1185. Baker's objection would not have served any purpose in light of the fact that the district court was made aware of the basis for the objection by Baker's codefendant. Accordingly, we do not subject Baker's claim to plain-error review, and we proceed to the merits of his claim.

3. Hearsay analysis

We have explained that:

A business record must satisfy four requirements in order to be admissible under Rule 803(6):

(1) it must have been made in the course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have made the memorandum; and (4) the memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge.

Jenkins, 345 F.3d at 935 (quoting United States v. Weinstock, 153 F.3d 272, 276 (6th Cir.1998)). "This information must be presented through `the testimony of the custodian or other qualified witness[.]'" Id. (alteration in original) (quoting FED. R. EVID. 803(6)). Simmons acknowledged at trial that he was not the custodian of the records, but the district court...