500 F.2d 751 (5th Cir. 1974), 73-2405, United States v. Miller

Docket Nº:73-2405.
Citation:500 F.2d 751
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mitchell MILLER, Susan McDuffie Weeks, and John Henry McDuffie, Defendants-Appellants.
Case Date:September 13, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 751

500 F.2d 751 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mitchell MILLER, Susan McDuffie Weeks, and John Henry McDuffie, Defendants-Appellants.

No. 73-2405.

United States Court of Appeals, Fifth Circuit.

Sept. 13, 1974

Rehearing Denied Oct. 11, 1974.

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[Copyrighted Material Omitted]

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D. L. Rampey, Jr., Warner Robins, Ga., for Miller.

W. W. Larsen, Jr., Dublin, Ga., for Weeks and McDuffie.

William J. Schloth, U.S. Atty., Ronald T. Knight, O. Hale Almand, Asst. U.S. Attys., Macon, Ga., for plaintiff-appellee.

Before GEWIN, GOLDBERG and CLARK, Circuit Judges.

GOLDBERG, Circuit Judge:

On January 9, 1973, a fire broke out at the Southeastern Metal Company warehouse in Kathleen, Georgia. When officials of the Houston County Sheriff's Department and volunteer fire department arrived to fight the blaze, they discovered in the building a 7500 gallon-capacity distillery, some 175 gallons of non-tax-paid whiskey, and related paraphernalia. With this discovery the lush dreams of bourbon living that the still owners must have harbored were suddenly scotched.

Although no arrests were made at that time, five persons-- Mitchell Miller, John Henry McDuffie, Susan McDuffie Weeks, Joseph Kenneth Brooks, and Terry Lee Smith-- were subsequently charged with conspiracy to defraud the United States of tax revenues by the manufacture and possession of distilled spirits. In addition, all of the alleged co-conspirators except Weeks were charged with substantive counts of possession of an unregistered still, carrying on the business of distillers without giving bond and with intent to defraud the United States of the whiskey tax, and possession of 175 gallons of non-tax-paid whiskey. Prior to trial the charges against Smith were dismissed, and the court granted Brooks' motion for severance. 1

The trial of defendants Miller, McDuffie, and Weeks began on April 23, 1973, and ended in a mistrial on May 1, 1973. A second trial commenced on May 7, 1973, resulting in conviction of all three defendants on all charges. Miller and McDuffie were sentenced to three years imprisonment; Weeks received five years probation.

On this appeal defendants urge ten separate grounds for reversing their convictions. Only one issue is common to all three defendants, and one argument is made by both McDuffie and Weeks; in addition, Miller argues five alleged trial court errors; McDuffie, two; and Weeks, one.

I. ISSUES RAISED BY MORE THAN ONE DEFENDANT

A. The Business Records Act. The one contention shared by all three defendants is that the district court erred by admitting into evidence copies of customers' phone bills without proper foundation under the Business Records Act, 28 U.S.C. § 1732, 2 and without the necessary

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showing of trustworthiness. The thrust of defendants' objection is that the items should not have been admitted because: 1) they were not prepared under the supervision of the witnesses who testified as to their authenticity; and 2) they were copies of bills made up monthly from records and not contemporaneously with the transaction, and thus did not constitute the best evidence of the matters reflected thereon.

In view of the purpose and plain meaning of section 1732, we find defendants' arguments unpersuasive. The statute explicitly establishes the admissibility of 'any writing or record . . . if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record . . ..' In Sabatino v. Curtiss National Bank of Miami Springs, 5 Cir. 1969, 415 F.2d 632, this Court reviewed cases in which items offered under the Business Records Act had been excluded. We concluded that the statute's primary purpose was 'to provide a check on trustworthiness,' and that records should be admitted if three conditions are met:

(1) the records must be kept pursuant to some routine procedure designed to assure their accuracy, (2) they must be created for motives that would tend to assure accuracy (preparation for litigation, for example, is not such a motive), and (3) they must not themselves be mere cumulations of hearsay or uninformed opinion.

415 F.2d at 637. The type of telephone toll records introduced in the trial below clearly meet section 1732 standards. See United States v. Mirenda, 9 Cir. 1971, 443 F.2d 1351, 1357; cf. United States v. Covello, 2 Cir. 1969, 410 F.2d 536, 542, cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136.

We have often noted that the trial court has a broad zone of discretion in determining the admissibility of documents such as business records, and that the court's rulings should be disturbed only when that discretion has been abused. E.g., United States v. Middlebrooks, 5 Cir. 1970, 431 F.2d 299, 302, cert. denied, 1971, 400 U.S. 1009, 91 S.Ct. 569, 27 L.Ed.2d 622. Defendants contend that the telephone records were rendered inadmissible because the witnesses whose testimony laid the foundation for receipt of these items were not the persons who kept the records. This contention is not supported by the statute and is directly contradicted by the weight of judicial authority. 'The person who actually keeps the books and records and makes the entries need not testify if a person does testify who is in a position to attest to the authenticity of the records.' United States v. Dawson, 2 Cir. 1968, 400 F.2d 194, 199. Indeed, section 1732 was adopted in part to eliminate the requirement that the entrant appear to authenticate the record.

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United States v. Anderson, 8 Cir. 1971, 447 F.2d 833, 839; United States v. Re, 2 Cir. 1964, 336 F.2d 306, 314, cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177. Three telephone company employees testified that the government exhibits in question were copies of customer bills and company records, were kept in the ordinary course of business, and were made at or near the time of the transactions reflected on them. That testimony was clearly sufficient to justify admitting the records.

Defendants' argument that these records were not the best evidence is similarly without merit. The best evidence rule has repeatedly been held inapplicable to records admitted under the Business Records Act. United States v. Anderson, supra; United States v. Vandersee, 3 Cir. 1960, 279 F.2d 176, 180; United States v. Kimmel, 2 Cir. 1960, 274 F.2d 54, 57.

The telephone records in question were clearly admissible under the three prongs of the Sabatino test. First, in each instance they were records kept in the regular course of business on a routine basis designed to assure their accuracy. Second, the purpose for keeping the records was not to prepare for litigation but to assure accurate billing of customers. Third, they were not mere cumulations of hearsay or informal opinion, but they were made at or near the time of the transactions reflected in them. We therefore hold that the district court did not abuse its discretion in admitting the telephone toll records into evidence.

B. Discovery. Weeks and McDuffie also claim that the trial court improperly denied their motions under Rule 16(a), Federal Rules of Criminal Procedure, to discover the results of fingerprint and handwriting analyses conducted by government experts. Defendants argue that Rule 16(a) should be broadly construed and that the district court should be given only limited discretion to deny a proper motion for discovery. Professor Wright has found support for this view by comparing Rule 16(a) with Rule 16(b):

Since a specified showing (of materiality) is required under (b), but not under (a), the plain inference is that no showing is required for discovery under (a), and that while that subdivision is cast in discretionary terms it gives the defendant 'virtually an absolute right' to discovery of the materials there listed. The nature of the materials covered by subdivision (a), and the strong interest of the defendant in having access to them, justifies such discovery as a matter of right.

1 C. Wright, Federal Practice and Procedure, Criminal § 253, pp. 500-01.

Although this Court has approved a standard similar to that suggested by Professor Wright, see United States v. White, 5 Cir. 1971, 450 F.2d 264, 267-268, we have also adhered to the rule that 'an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.' United States v. Saitta, 5 Cir. 1971, 443 F.2d 830, 831; Fed.R.Crim.P., Rule 52(a). We are satisfied that, on the peculiar facts of the present case, no prejudice to defendants could have resulted from the denial of their motion for discovery.

In the first place, as partial grounds for denial of the motion, the trial judge acknowledged that in open court the government had offered defendants access to the handwriting and fingerprint evidence. The record gives no indication that the government withdrew its offer or declined to make the information available. Moreover, all of the evidence in question was introduced at the first trial; defendants have brought this appeal from the second trial. Thus, the first trial itself provided disclosure not only of the contents of the reports, but also of the substance of the experts' testimony. As a result of this combination of circumstances, any error in denying motions for discovery was rendered harmless by the time of the second trial.

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II. MITCHELL MILLER

In addition to his Business Records Act claim, defendant Miller makes five assignments of error on this appeal: (1) the trial court erred by admitting microfilm copies of Miller's bank checks obtained by means of an illegal grand jury...

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