U.S. v. Davis, 77-5515

• Decision Date: 27 April 1978
• Docket Number: No. 77-5515,77-5515
• Citation: 571 F.2d 1354
• Parties: 3 Fed. R. Evid. Serv. 761 UNITED STATES of America, Plaintiff-Appellee, v. Edwin Tony DAVIS, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1354

571 F.2d 1354

3 Fed. R. Evid. Serv. 761

UNITED STATES of America, Plaintiff-Appellee, v. Edwin Tony DAVIS, Defendant-Appellant.

No. 77-5515

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

April 27, 1978.

Roy E. Barnes, Marietta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., William M. Tetrick, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

The appellant was convicted, following a jury trial in district court, of having received a firearm that had been shipped or transported in interstate commerce in violation of 18 U.S.C. § 922(h) (1976). ¹ In this appeal, he raises two claims of reversible error in the admission of evidence before the jury. The first claim, that the firearm in question, a Colt .38 revolver, was received in evidence in violation of appellant's fourth amendment rights, is meritless and requires no discussion. The second claim, however, has merit. The district court committed prejudicial error when it allowed the Government, over defense objection, to employ hearsay evidence to prove the shipment or transportation of the firearm in interstate commerce. Appellant's conviction must therefore be set aside and the case remanded for a new trial.

I

The hearsay evidence was critical to the Government's case. It was contained in two documents produced by the second, and last, Government witness, Special Agent William Lee Steed of the Bureau of Alcohol, Tobacco and Firearms (ATF). Steed was ATF's investigating agent in this case. He had been called into the case following the appellant's arrest, and the seizure of the Colt revolver, by a Cobb County, Georgia, police officer. Steed's assignment was to determine whether the appellant had committed a section 922(h) offense. Since the appellant was a felon, all that Steed had to ascertain was whether the appellant had received a firearm, the Colt .38, shipped or transported in interstate commerce. In carrying out this task, Steed followed the routine ATF procedure for tracing the history of firearms from manufacture to the latest recorded purchase.

Agent Steed's first step was to make a telephone call to ATF's Washington, D. C., office to report the identifying data about the revolver. Steed followed the call with a formal inquiry by forwarding to that office ATF form F 7520.5, entitled "Request for Tracing Firearms," in which he gave a detailed description of the revolver. The response from Washington was set out in section B of the form, entitled "Transfer Record of Firearm," and was written purportedly by the person making the trace. The response indicated that the gun had been bought in Georgia by three successive purchasers from January 22, 1974, to March 14, 1974.

The second step of Agent Steed's investigation commenced when he mailed a "Request for Certification of Firearms Record Search," ATF form F 7520.4, to Colt Industries in Hartford, Connecticut. Part I of the form, entitled "Record Search Information," was filled out by Steed. He identified the revolver and indicated that it had been shipped on January 22, 1974, to G. T. Distributors, Rossville, Georgia, as consignee. The response of ATF's Washington office on form F 7520.5 had named G. T. Distributors as the initial purchaser. In the mailing to Colt Industries, Steed enclosed a self-addressed, franked envelope to be used by Colt's records custodian in making a reply. In due course, Agent Steed received a reply. The reply was filled-in by hand on Part II of form F 7520.4 by a person who purported to be M. S. Huber, the custodian of records of Colt Industries. The reply stated that the .38 revolver had been manufactured by Colt in Connecticut and, on January 22, 1974, had been sold and shipped by Colt to G. T. Distributors, Rossville, Georgia.

The Government's foundation for the introduction of these two ATF forms in evidence was established inartfully, at best. In piecemeal fashion, the prosecutor eventually developed that the tracing of firearms, through the use of the form inquiries made by Agent Steed in this case, was a regular, routine occurrence in the ATF Bureau and that the Bureau placed reliance on the results of this tracing procedure. In addition to showing that these inquiries had been made by Steed himself, the prosecutor proved that in accordance with standard ATF operating procedures, the completed forms had been maintained in the investigative file and that the file had been kept in Steed's exclusive possession, custody, and control. Having developed this much, the prosecutor moved the introduction of the documents in evidence, indicating that they qualified as an exception to the hearsay rule relating to "routine practice." Record, vol. 2, at 40.

The district judge first considered admitting the exhibits under the " public records or reports" exception to the hearsay rule, Fed.R.Evid. 803(8). ² He declined to invoke this exception because the Government's proffer had not explicitly addressed the conditions of admissibility inherent in the exception and the documents did not appear to have been properly authenticated as public records or reports. ³ No testimony had been elicited to demonstrate, for example, that these documents were authorized by law to be recorded or filed in a public office or that they were from the public office where items of this nature are kept. We are convinced that the district court's ruling is correct. The Government's proffer was inadequate not only for these reasons but also because it was insufficient to overcome the hurdle posed by subpart (C) of rule 803(8), which, in criminal cases, precludes the Government from introducing evidence of "factual findings resulting from an investigation made pursuant to authority granted by law." See note 2 supra. In our view, the recitals in the two exhibits, considered together, are tantamount to factual findings resulting from an ATF investigation.

The district court next considered the possibility of receiving the exhibits under the hearsay exception for records of regularly conducted activity. That exception is created by rule 803(6), Fed.R.Evid., which authorizes the admission of records of such activity regardless of the declarant's availability as a witness. It provides as follows:

(6) Records of regularly conducted activity. 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.

The court acknowledged that the information entered on the two ATF forms did not originate within the Bureau. ATF merely preserved the information as reported on the forms. Thus, it was questionable whether the documents were actually a part of the records of the Bureau's business and admissible under the rule 803(6) exception. The court was impressed, however, that it was part of ATF's regular business activity to make the sort of inquiries made here and to maintain the results of those inquiries in its investigative files. Also impressive to the court was ATF's reliance upon that information in the conduct of its affairs. On the basis of these facts, the prerequisites to admissibility under the hearsay exception were found to have been established, and the exhibits were received in evidence. The Government was thus enabled to establish the essential element of its case, the interstate shipment or transportation of the firearm.

II

The appellant contends that the admission of the exhibits in question was not only an erroneous application of rule 803(6) but also a violation of his sixth amendment right of confrontation. ⁴ We agree with appellant's contention that the exhibits do not fall within the exception to the hearsay rule provided in rule 803(6); consequently, it is unnecessary for us to decide the sixth amendment issue.

The ATF documents in this case contain hearsay from three sources: Agent Steed; the unknown persons who participated in making up the response from ATF's Washington, D. C., office; ⁵ and M. S. Huber, the Colt Industries' custodian of records. The information provided by the first two sources was in large measure corroborative of undisputed facts already established before the jury. The information, as it did little more than depict the salient features of the firearm, was not prejudicial; it did not bear directly on the crucial interstate issue. ⁶ On the other hand, the information provided on form F 7520.4 by the third source, M. S. Huber, went to the heart of that issue. It is obvious that without the statement that Colt had manufactured the revolver in Connecticut and shipped it to Rossville, Georgia, the appellant would have been entitled to a directed verdict of acquittal. ⁷

Huber's unsworn statement was plainly a substitute for the presentation of live, sworn courtroom testimony by the records custodian of Colt Industries. ⁸ By successfully employing this substitute, the Government's case, it seems to us, was made considerably easier. Huber, in being saved an appearance before the jury, was rendered immune to cross-examination, thus eliminating the possibility that the defense might be able to keep his testimony from the jury altogether by showing that a condition...