U.S. v. Reyes

• Decision Date: 15 October 1998
• Docket Number: No. 411,D,411
• Citation: 157 F.3d 949
• Parties: UNITED STATES of America, Appellee, v. Jose REYES, also known as El Feo, also known as Moncheche, also known as Jay, also known as Jose Rodriguez, Defendant-Appellant, Francisco Medina, also known as Freddy, also known as Miguel Perez, also known as Raul Polanco, and Thomas Rodriguez, also known as Cruel, Defendants. ocket 97-1072.
• Court: U.S. Court of Appeals — Second Circuit

Page 949

157 F.3d 949

UNITED STATES of America, Appellee, v. Jose REYES, also known as El Feo, also known as Moncheche also known as Jay, also known as Jose Rodriguez Defendant-Appellant Francisco Medina, also known as Freddy, also known as Miguel Perez, also known as Raul Polanco, and Thomas Rodriguez, also known as Cruel, Defendants.

No. 411, Docket 97-1072.

United States Court of Appeals, Second Circuit.

Argued Jan. 6, 1998.

Decided Oct. 15, 1998.

Joseph A. Bondy, New York City, for Defendant-Appellant.

Thomas A. Arena, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for Southern District of New York, Bruce G. Ohr, Elizabeth Glazer, Assistant United States Attorneys, on brief), for Appellee.

Before: KEARSE and JACOBS, Circuit Judges, and MISHLER, ^* District Judge.

JACOBS, Circuit Judge:

Defendant Jose Reyes appeals from a final judgment of the United States District Court for the Southern District of New York (Scheindlin, J.) convicting him, following a jury trial, of a variety of racketeering and narcotics offenses, and conspiracy to murder. At trial, a key government witness testified that, during visits the witness made to Reyes in prison, Reyes gave him instructions to commit certain murders, and that he later carried out those instructions. On appeal, Reyes argues that the district court erred in permitting the government to introduce a logbook of prison visitors to corroborate the visits and the visiting dates (which correlate with some of the murders). We conclude that the logbook was admissible as a business record under Fed.R.Evid. 803(6), and therefore affirm. Reyes also challenges the judgment on the ground that the testimony of the cooperating witness was procured as a result of the illegal seizure of a hand-held computer, that the evidence of conspiracy to murder one Ronnie Gedders was insufficient to support the verdict, and that the government in summation referred to a map not received in evidence. None of these arguments has merit.

BACKGROUND

In February 1996, Jose Reyes and several co-defendants were charged in a 58-count indictment that alleged, inter alia, that Reyes and his co-defendants were members of a criminal organization that engaged in narcotics trafficking, murder, assault, and other acts of violence. Reyes himself was charged in 43 counts that included racketeering violations, multiple counts of murder and conspiracy to commit murder, conspiracy to distribute narcotics, and firearms violations. The district court ruled on numerous suppression motions, and the case proceeded to trial by jury.

The trial evidence showed that Reyes was the head of a large drug distribution organization that sold vast amounts of heroin and crack cocaine in street-level quantities from spots in Manhattan and the Bronx. To protect these operations, Reyes and his subordinates engaged in many acts of murder, attempted murder, and assault against competitors, rival groups, and traitors to the organization. Much of this evidence came from a cooperating witness, Raul Vargas ("Vargas"), who described the scope of Reyes's drug distribution activities, and Vargas's work as a hit man for Reyes.

Among many other things, Vargas testified that he visited Reyes "[a]bout three times" in prison at Cape Vincent Correctional Facility in upstate New York (where Reyes was serving a state sentence for third degree possession of a weapon), that they discussed the organization during the visits, and that Reyes gave Vargas orders on whom to kill.

To corroborate Vargas's testimony concerning his visits to Reyes in prison, and Reyes's continued role in the drug organization during his incarceration at Cape Vincent, the government offered in evidence the visitor logbook from Cape Vincent. Logbook entries indicated that Vargas and other gang members visited Reyes on several occasions, including visits on days close in time to several murders. Reyes argues that if the logbook had been excluded, there would have been no corroboration of Vargas's testimony that several killings were ordered by Reyes during the visits to Cape Vincent.

Before admitting the logbook into evidence, the district court heard testimony outside the presence of the jury from Susan McLear, the Inmate Records Coordinator at Cape Vincent, who was responsible for maintaining and storing prison visitor logbooks, and who testified on the basis of what she observed when people came to see her at the prison. The procedure, according to McLear, is that visitors are required to show identification to the lobby officer and to sign their names and record their addresses in the logbook, and that the lobby officer is required to check the visitor's identification against the entry in the book. McLear, who had been employed by the Department of Corrections for eight years, testified that this was "normal procedure at a correctional facility."

After hearing McLear's testimony, the district court concluded:

[A]lthough the person who gave the information is not an employee ... the log is kept in the regular course of business and it seems that from the testimony of this witness there is enough to conclude that the log is kept under a duty of accuracy and that the entity, that is, the institution, relies on it and that every visitor must produce identification, must sign in prior to be admitted to the institution, and for all of those reasons it appears to be ... a business record.

Over the objection of Reyes's counsel, the district court admitted the logbook under the business records exception to the hearsay rule, Fed.R.Evid. 803(6).

The jury convicted Reyes of one count of participating in racketeering activities, one count of conspiracy to participate in racketeering activities, one count of conspiracy to violate the federal narcotics laws, one count of engaging in a continuing criminal enterprise, and seven counts of conspiracy to commit murder. The district court sentenced him to life imprisonment, followed by five years of supervised release, and a $600 special assessment.

DISCUSSION

A. Prison Logbook

Reyes challenges the admission of the prison visitor logbook on the ground that it is hearsay outside the scope of any exception.

Hearsay is an out-of-court statement offered into evidence for the truth of the matter asserted. See Fed.R.Evid. 801(c). In this case, the hearsay consists of written self-identifications made by individuals visiting the prison, offered by the government to prove that those individuals had in fact visited the facility on particular dates.

The hearsay exception cited by the district court is Rule 803(6), which covers

[a] memorandum, report, record, or data compilation ... 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.

Fed.R.Evid. 803(6).

A district court's admission of evidence under Rule 803(6), commonly known as the business records exception, is reviewed for abuse of discretion. See Phoenix Assocs. III v. Stone, 60 F.3d 95, 100 (2d Cir.1995).

Reyes makes three arguments that the district court erred in admitting the prison visitor logbook under Rule 803(6). Each argument fails.

1. The Testimony of the Records Custodian.

Reyes's first argument is that the Records Custodian, McLear, was incapable of establishing the reliability of the logbook because she lacked "direct, firsthand knowledge" about how the logbook was prepared and as to "what measures were taken to assure its accuracy."

McLear testified that her knowledge of the sign-in procedure came from, inter alia, having observed her visitors sign the logbook. She also testified that she "observed them filling out their name, showing their identification and putting in the purpose that they are there." McLear admitted that she lacked personal knowledge of "whether the lobby officer checks each entry in the log against the identification which has been shown to him," but she did testify that it "is a procedure they usually have to follow." (Emphasis added.)

McLear's knowledge of the procedure used by the lobby officers--based, as it is, upon eight years of employment with the Department of Corrections--is sufficient for the purposes of Rule 803(6). If knowledge were required as to each particular entry in a record, document "custodians" could rarely satisfy the requirements of Rule 803(6). This Circuit has recognized that a custodian who testifies as to the authenticity of a record need not have firsthand knowledge of the creation of the record. See United States v. Jakobetz, 955 F.2d 786, 801 (2d Cir.1992); see also Saks Int'l, Inc. v. M/V "Export Champion", 817 F.2d 1011, 1013 (2d Cir.1987) ("[T]here is no requirement that the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity's regular practice to get information from such a person."); 4 Jack B. Weinstein et al., Weinstein's Evidence p 803(6).

2. Duty to Provide Information.

Reyes's second claim is that the business records exception is inapplicable because prison visitors who write their names in the logbook have no business duty to provide the information. The requirement of a business duty is not in the language of Rule 803(6), but it has long been recognized as the principal means of establishing the reliability of a hearsay statement offered under the rule. See United States v. Lieberman, 637 F.2d 95, 100 (2d Cir.1980) (citing McCormick's Handbook of the Law of Evidence 727 (2d ed.1972)). As Reyes argues, the rule is that the individual with the business duty and the hearsay declarant...