U.S. v. Darveaux
| Decision Date | 02 October 1987 |
| Docket Number | No. 87-5017,87-5017 |
| Citation | 830 F.2d 124 |
| Parties | 24 Fed. R. Evid. Serv. 173 UNITED STATES of America, Appellee, v. Thomas Earl DARVEAUX, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Douglas B. Altman, Minneapolis, Minn., for appellant.
Jon Hopeman, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before HEANEY, BOWMAN and WOLLMAN, Circuit Judges.
Defendant Thomas Earl Darveaux appeals his conviction under 18 U.S.C. App Sec. 1202(a)(1), possession of firearms by a convicted felon. We affirm the judgment entered by the District Court 1 upon the jury verdict.
Darveaux was arrested on the night of April 21, 1986, in Spring Lake Park, Minnesota, by police officers responding to the report of a burglary. Seeing Darveaux and another man walking away from the vicinity of the disturbance, a policeman trained his flashlight on the pair and identified himself. As Darveaux's companion fled, Darveaux turned his back to the light and threw a handgun into the air. The officer arrested Darveaux, and found the loaded and cocked pistol lying nearby.
The indictment charged that Darveaux had been convicted of burglary in Texas in 1965, burglary in Minnesota in 1967, and aggravated robbery in Minnesota in 1981. After considering evidence of these three prior felony convictions, along with evidence of Darveaux's possession of the firearm in Spring Lake Park, a jury found defendant guilty under Section 1202(a)(1), part of the Armed Career Criminal Act of 1984. 2 As a consequence of Darveaux's three previous felonies, he received the minimum sentence of 15 years, without parole, that the Act mandates.
On appeal, Darveaux argues that the District Court erred by: 1) admitting a copy of the Texas conviction authenticated by the Record Clerk of the Texas Department of Corrections (TDC); 2) admitting testimony by Darveaux's Minnesota parole officer about defendant's prior record; and 3) admitting evidence about the alleged burglary that triggered his arrest in the present case. He also argues that the evidence of possession is insufficient to support the jury verdict. Only Darveaux's first contention requires discussion.
The Government presented evidence of Darveaux's Texas conviction in the form of a penitentiary file, or so-called "pen packet," from the TDC. The packet consists of certified copies of his conviction and sentence in the District Court of Bexar County, Texas. The copies are certified by the Record Clerk of the TDC, who attests that "in my legal Custody as such officer are the original files and records of persons heretofore committed to said institution: that the (x) photograph (x) fingerprints and (x) commitments, including judgment and sentence, of Thomas E. Darveaux ... a person heretofore committed to said penal institution and who served a term of imprisonment therein: that I have compared the attached copies with their respective originals now on file in my office and each thereof contains, and is a full, true, and correct transcript and copy from its said original." The Record Clerk's signature is accompanied by the embossed seal of the TDC.
The certification by the TDC Record Clerk is authenticated by the presiding judge of the County Court of Walker County, Texas, where the TDC is located. The attestation of the presiding judge in turn is authenticated by the signature of the Clerk of the County Court of Walker County and the seal of the County Court.
Along with the copies of Darveaux's conviction and sentence, the pen packet contains his fingerprint card and photograph. The District Court excluded the sentence and the fingerprints as unduly prejudicial. The copies of the conviction, the certification, the photograph, and the descriptive material at the bottom of the fingerprint card (listing height, weight, birthdate, etc.) were admitted as Exhibit 13. The Government offered Exhibit 13 as a self-authenticating document under Rule 27 of the Federal Rules of Criminal Procedure.
Darveaux objects on hearsay grounds that the conviction record is not self-authenticating, insisting that the TDC Record Clerk in Walker County does not have "legal custody" of the records of the Bexar County conviction, as required by Rule 27. Defendant asserts that the Record Clerk of the TDC--as an officer of the executive branch of the Texas Government--cannot be the legal custodian of the conviction entered by a county judge--an officer of the judicial branch. We disagree.
Under Rule 27 of the Federal Rules of Criminal Procedure, "An official record ... may be proved in the same manner as in civil actions." Thus, we turn to Rule 44 of the Federal Rules of Civil Procedure, incorporated by reference into Rule 27, and to Rule 902 of the Federal Rules of Evidence. Under Rule 44(a)(1), an official record Rule 902 similarly provides that
There is no dispute that Exhibit 13 is a copy of an "official record" under the above rules. It fully complies with those rules and properly was admitted as proof of the Texas conviction, provided that the TDC Record Clerk is the legal custodian of the records of that conviction. Having examined Texas law on this point, we are satisfied that he is.
A review of Texas cases reveals that prosecutors often offer pen packets to prove prior convictions, and that judges seldom exclude them as evidence. Significantly, the Texas courts consistently refer to the TDC Record...
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§ 28.11 SELF-AUTHENTICATING DOCUMENTS: FRE 902
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