Dutch v. United States

• Citation: 997 A.2d 685
• Decision Date: 24 June 2010
• Docket Number: No. 07-CM-1205.,07-CM-1205.
• Parties: Antoine C. DUTCH, Appellant,v.UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

997 A.2d 685

Antoine C. DUTCH, Appellant,v.UNITED STATES, Appellee.

No. 07-CM-1205.

District of Columbia Court of Appeals.

Submitted Feb. 4, 2010.

Decided June 24, 2010.

COPYRIGHT MATERIAL OMITTED

Khadijah R. Ali, Washington, DC, appointed by the court, was on the brief for appellant.

Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Roy W. McLeese III, Mary B. McCord, J.P. Cooney, and Jeremy S. Barber, Assistant United States Attorneys, were on the brief for appellee.

Before KERN, BELSON, and STEADMAN, Senior Judges.

STEADMAN, Senior Judge:

Appellant Antoine Dutch appeals his conviction at a bench trial for attempted uttering; namely, cashing a forged check. His principal challenge on appeal is to the introduction as “business records” of two documents derived from information stored on computers. Finding no error, we affirm.

I.

The evidence presented to the trial court evidenced the following. On April 5, 2005, a customer walked into Malcolm Liquors and approached the store's check-cashing station. Working at the check-cashing station was the store's owner at the time, Houng Hoon Seo, who testified at trial. The customer presented a check to be cashed in the amount of $671.50, apparently issued by Thompson Hospitality Services, LLC, made payable to Antoine Dutch. Because this customer had never cashed a check at Malcolm Liquors before, Seo undertook a series of steps, which he “always” followed with new customers. He first asked for a government-issued photo ID. He compared the photo on the ID with the customer standing in the store, to make sure it was the same person. He compared the name on the check with the name on the photo ID, which was “Antoine Curtis Dutch.” He then scanned both the check and the ID into his computer for transmission to Pay By Touch, a financial transaction processing company. Further, he took a photograph of the customer and scanned that into his computer, also to be sent to Pay By Touch. Finally, he asked the customer to place his finger on the Pay By Touch terminal to create a digital image of his fingerprints. Seo followed these steps for all first-time customers; when a returning customer, whose information had already been submitted into the Pay By Touch system, wanted to cash a check, all he needed to do was place his finger on the Pay By Touch terminal again, and all of the information would display on Seo's computer screen, in one convenient record. Although Seo did not provide an in-court identification of appellant, he testified that he was satisfied on April 5, 2005, that the picture on the driver's license was a picture of the man standing in front of him in the store.

After taking these steps on April 5, 2005, Seo cashed the customer's check. Seo's bank later determined, and Dutch does not dispute on appeal, that the check was “fake.” As part of a broader investigation into the passing of counterfeit checks, Secret Service Special Agent Gregory Jones reviewed Dutch's transactions at Malcolm Liquors. After speaking with Seo and reviewing the Pay By Touch records accessible at the liquor store, Special Agent Jones arrested Dutch. In court, he identified Dutch as the person he arrested.

Pay By Touch's Vice President of Technology, John McNally, testified about the computer records created and collected by Pay By Touch on behalf of its merchant clients. He testified that images of a customer's ID, fingerprints, photo, and previously cashed checks are all kept in a single record, maintained by Pay By Touch. Pay By Touch stores the information for the merchant and also makes it available to other merchants, to allow them to see if there is any “negative information” about a customer.

During the trial, the Government succeeded in entering, over Dutch's objection, two paper exhibits reflecting the various forms of identification collected by Seo and Pay By Touch in connection with the fraudulent transaction. One of them, entered as “Exhibit 2,” was entitled “Returned Items Transaction Report.” It contained images of the photo ID for “Antoine Curtis Dutch,” the in-store photo, fingerprints, and check cashed by the customer in the store, and it listed the date of the transaction, April 5, 2005. The other, entered as “Exhibit 6” and also entitled “Returned Items Transaction Report,” contained the same information as Exhibit 2, along with information about subsequent transactions between “Antoine Curtis Dutch” and Malcolm Liquors. Special Agent Jones testified that Exhibits 2 and 6 were reports he received when, as part of his investigation, he subpoenaed all records from Pay By Touch relating to Dutch. Jones also testified that he recognized Exhibit 2 as the same as the record he reviewed on Seo's computer screen during his investigation. Seo testified that Exhibit 2 was a fair and accurate depiction of the record to which he has access at his store, with the exception of the fingerprints, which do not appear on his computer when he accesses the record. ¹

McNally testified that the records presented for trial were the same records as those kept in Pay By Touch's computer system. In preparation for trial, he accessed the Pay By Touch system and produced reports identical to Exhibits 2 and 6, in order to confirm that no changes had been made to the data contained therein since “the initial record creation.” He stated that Exhibit 6 was simply “the rest of the report” contained in Exhibit 2, showing the later transactions by “Antoine Curtis Dutch” at Malcolm Liquors, so identified by the fingerprint provided on the Pay By Touch screen when those later checks were cashed. When asked directly whether Exhibit 6 was a “business record” created by Pay By Touch, he stated, “It is.”

The trial court found the defendant guilty as charged.

II.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Gardner v. United States, 898 A.2d 367, 374 (D.C.2006); Mercer v. United States, 864 A.2d 110, 117 (D.C.2004). A statement, though hearsay, will be admissible if it falls under an exception. See, e.g., Johnson v. United States, 980 A.2d 1174, 1185 (D.C.2009) (excited utterance); Gardner, supra, 898 A.2d at 374 (present-sense impression). A well recognized exception to hearsay is the “business records” exception, otherwise entitled the exception for “records made in regular course of business.” See Clyburn v. District of Columbia, 741 A.2d 395, 397 (D.C.1999); Giles v. District of Columbia, 548 A.2d 48, 53 (D.C.1988); see also Super. Ct. Civ. R. 43-I. In order to qualify evidence under the exception, the proponent must show (1) that the record was made in the regular course of business, (2) that it was the regular course of the business to make such records, (3) that the record was made at the time of the act, transaction, occurrence, or event, or within a reasonable time thereafter, and (4) that the original maker has personal knowledge of the information in the record or received the information from someone with such personal knowledge and who is acting in the regular course of business. Allstate Ins. Co. v. Curtis, 781 A.2d 725, 727 (D.C.2001); Clyburn, supra, 741 A.2d at 397; Super. Ct. Civ. R. 43-I. We review a trial court's decision to admit hearsay evidence for abuse of discretion; however, the determination of whether a statement falls under an exception to the hearsay rule is a legal conclusion, which we review de novo. Brown v. United States, 840 A.2d 82, 88 (D.C.2004).

Dutch argues that the Pay By Touch transaction report documents introduced as Exhibits 2 and 6 did not fall under the business records exception because (1) they were not business records of Malcolm Liquors, (2) the Government did not establish it was the normal course of business for the company to make these records, and (3) the Government did not establish that the records were made within a reasonable time after the events in question. We disagree.

While the evidence may not have conclusively established that Exhibits 2 and 6 reflected business records of Malcolm Liquors-given Seo's uncertainty about the fingerprint portions-we are satisfied that they were admissible as business records of Pay By Touch. McNally's testimony showed that all of the data used to create Exhibits 2 and 6 were data stored in Pay By Touch's system created and used by its merchants in the regular course of their check-cashing businesses. Further, McNally was able to create documents identical to Exhibits 2 and 6 from the Pay By Touch system. The fact that the creator of the actual two documents used in court did not testify to their creation does not disqualify their admissibility. McNally's testimony, along with Seo's and Jones', gave adequate reason to trust the authenticity and the accuracy of the documents and the computer data set forth therein. See Meaders v. United States, 519 A.2d 1248, 1256 (D.C.1986) (“The person who actually writes the information on the document does not need to testify so long as other evidence establishes its trustworthiness.”); United States Commodity Futures Trading Comm'n v. Dizona, 594 F.3d 408, 415 (5th Cir.2010) (“no requirement that the witness who lays the foundation be the author of the record or be able to personally attest to its accuracy”) (internal citation omitted) (construing Fed.R.Evid. 803(6)); Conoco v. Dep't of Energy, 99 F.3d 387, 391 (Fed.Cir.1996) (witness is qualified to lay the foundation necessary for the exception “as long as the witness understands the system used to prepare the records”). Here, McNally's detailed testimony about how the system functions to gather and store the data, together with Seo's testimony about how he collected the particular data at issue in this case, established how the records were created and what business purpose they served. Finally, Jones' testimony established that the reports in question came directly from Pay By Touch.

The electronic nature of the reports does not call the...