U.S. v. Childs

• Decision Date: 28 September 1993
• Docket Number: No. 92-10645,92-10645
• Citation: 5 F.3d 1328
• Parties: 37 Fed. R. Evid. Serv. 1344 UNITED STATES of America, Plaintiff-Appellee, v. Craig Lee CHILDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

5 F.3d 1328

37 Fed. R. Evid. Serv. 1344

UNITED STATES of America, Plaintiff-Appellee, v. Craig Lee CHILDS, Defendant-Appellant.

No. 92-10645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1993.

Decided Sept. 28, 1993.

Jared O. Smith, Tempe, AZ, for defendant-appellant.

W. Allen Stooks and Karen S. McDonald, Asst. U.S. Attys., Phoenix, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, HUG and LEAVY, Circuit Judges.

CHOY, Circuit Judge:

Defendant Craig Lee Childs appeals his conviction on four counts of possession of a stolen vehicle in violation of 18 U.S.C. Sec. 2313 and his sentence of one year incarceration and five years probation. Childs argues that (A) venue was improper in the District of Arizona, (B) documents were admitted as business records without proper foundation, (C) duplicate copies of documents were erroneously admitted in lieu of the original documents, (D) the government relied on foreign law at trial without giving reasonable notice, (E) the prosecutor engaged in misconduct during the course of plea negotiations, and (F) the government improperly used a peremptory challenge to remove a Native American prospective juror. We find these arguments without merit and we affirm.

I. BACKGROUND

Five vehicles were reported stolen in Arizona between May and July of 1987. During this same period of time, Craig Lee Childs registered these cars in Calgary, Alberta, Canada, using the name Craig Lee Connors. Childs, along with another man, was identified as having test-driven one of the cars in Arizona shortly before it was stolen.

On April 19, 1989, Childs was indicted in Arizona on five counts of Possession of a Stolen Vehicle Transported in Interstate Commerce in violation of 18 U.S.C. Sec. 2313. Childs was arrested on March 8, 1991 in Oklahoma. He was released on bond and ordered to appear before a Magistrate Judge in Phoenix. Childs made a motion to dismiss the case, arguing that venue was improper. This motion was denied after a hearing. A jury trial was held in Phoenix and Childs was found guilty of four counts of the indictment. ¹

II. DISCUSSION

A. Venue

Childs was convicted in the District of Arizona for possession of stolen motor vehicles in violation of 18 U.S.C. Sec. 2313. Childs argues that venue was improper in the District of Arizona. The existence of venue is a question of law which we review de novo. United States v. Abernathy, 757 F.2d 1012, 1014 (9th Cir.), cert. denied, 474 U.S. 854, 106 S.Ct. 156, 88 L.Ed.2d 129 (1985).

Section 2313 provides:

Sec. 2313 Sale or receipt of stolen vehicles

(a) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, which has

crossed a State or United States boundary after being stolen, knowing the same to have been stolen, shall be fined under this title or imprisoned not more than 10 years, or both.

(b) For purposes of this section, the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

18 U.S.C.A. Sec. 2313 (West.Supp.1993).

The government successfully asserted below that venue for this case is controlled by 18 U.S.C. Sec. 3237. Under 18 U.S.C. Sec. 3237(a), "any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed." Section Sec. 3237(a) further provides that:

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and ... may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

Id.

While the prosecution bears the burden of proving the requisite connection to a district for venue purposes, direct proof of venue is not necessary " 'where circumstantial evidence in the record as a whole supports the inference that the crime was committed in the district where venue was laid.' " United States v. Davis, 666 F.2d 195, 199 (5th Cir.1982) (quoting United States v. Turner, 586 F.2d 395, 397 (5th Cir.1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L.Ed.2d 480 (1979)), see also United States v. Durades, 607 F.2d 818, 820 n. 1 (9th Cir.1979); United States v. Prueitt, 540 F.2d 995, 1006 (9th Cir.1976), cert. denied, 429 U.S. 1063, 97 S.Ct. 790, 50 L.Ed.2d 780 (1977).

The evidence in this case reveals that all of the cars were stolen from Arizona during a short period of time, that Childs was seen test-driving one of the stolen cars in Arizona the day before the car was stolen, and that Childs registered the stolen cars in Canada shortly after they were stolen. This evidence supports the inference that Childs stole the cars in Arizona and moved them through the United States into Canada. Accordingly, we hold that venue was proper in Arizona.

B. Admission of Documents as Business Records

Childs argues that the district court erroneously admitted a number of documents as business records without proper foundation. District court decisions to admit evidence under the business records exception to the hearsay rule are reviewed for abuse of discretion. See United States v. Bland, 961 F.2d 123, 126 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992).

Fed.R.Evid. 803(6) provides:

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 a 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. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Childs challenges the admission of the government's exhibit 34, an application for Alberta, Canada license plates in the name of Craig Lee Connors. Exhibit 34 was admitted as a business record of the Alberta Division of Motor Vehicles ("Alberta DMV"). Childs argues that the admission of exhibit 34 was improper because the exhibit was not made by the Alberta DMV, but by a private auto club that was contracted by the Alberta DMV to issue licenses.

Testimony indicated that the private auto club was hooked directly into the DMV's computer system and could perform transactions on-line. ² The private auto club was following the DMV's procedures for issuing licenses and was performing the transactions directly on the DMV's computer system. For the purpose of issuing license plates, the private auto club and the DMV were essentially acting as one business entity. Accordingly, we find that the district court did not abuse its discretion in admitting exhibit 34 as a business record of the Alberta DMV.

Childs objects to the admission of the government's exhibits 4, 5, 6, 7, 8, and 13, arguing that the circumstances surrounding their preparation indicate a lack of trustworthiness. The government alleged at trial that Childs manipulated the Canadian system. Childs argues that he may have had the help of an accomplice within the Canadian system, and if so, "the documents would lack trustworthiness and would not have been made in the regular course of business." Childs does not point to any evidence in the record suggesting the presence of such an accomplice within the Canadian system. There is no support for this frivolous argument.

Childs next argues that the government's exhibits 19, 20, 23, 31 and 32 were erroneously admitted. These exhibits include several types of documentation kept by auto dealers in connection with the stolen cars, such as certificates of title, purchase orders and odometer statements. They were introduced to show that the stolen automobiles were the same cars that Childs possessed in Canada. These documents were admitted as business records of the automobile dealers. Childs argues that the documents were improperly admitted because, although the documents were kept by the automobile dealers in the regular course of business, the dealers did not make the documents.

Several circuits have held that exhibits can be admitted as business records of an entity, even when that entity was not the maker of those records, so long as the other requirements of Rule 803(6) are met and the circumstances indicate the records are trustworthy. See, e.g., United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992) (upholding admission of pistol invoice as a business record of the sports shop which received the invoice where witness testified that he received the invoice and that he relied on " 'documents such as those,' in his business to show 'acquisition' of the pistol."); United States v. Parker, 749 F.2d 628, 633 (11th Cir.1984) (upholding admission of customs certificate for liquor as a business record of a distilling company) ("That the witness and his company had neither prepared the certificate nor had first-hand knowledge of the preparation does not contravene Rule 803(6)."); Mississippi River Grain Elevator, Inc. v. Bartlett & Co., Grain, 659 F.2d 1314, 1318-19 (5th Cir.1981) (upholding admission of grain weight certificates prepared by government entities as business records of private grain company).

In United States v. Ullrich, 580 F.2d 765 (5th Cir.1978), the Fifth Circuit considered and rejected the same argument Childs is now making before this court...