U.S. v. Veytia-Bravo, VEYTIA-BRAV

• Citation: 603 F.2d 1187
• Decision Date: 05 October 1979
• Docket Number: 78-5743,Nos. 78-5742,VEYTIA-BRAV,D,s. 78-5742
• Parties: 4 Fed. R. Evid. Serv. 1474 UNITED STATES of America, Plaintiff-Appellee, v. Luis Estebanefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1187

603 F.2d 1187

4 Fed. R. Evid. Serv. 1474

UNITED STATES of America, Plaintiff-Appellee, v. Luis Esteban VEYTIA-BRAVO, Defendant-Appellant.

Nos. 78-5742, 78-5743.

United States Court of Appeals, Fifth Circuit.

Oct. 5, 1979.

Rehearing and Rehearing En Banc Denied Nov. 5, 1979.

Roland E. Dahlin, II, Federal Public Defender, Charles S. Szekely, Jr., Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM, CLARK and GEE, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Luis Esteban Veytia-Bravo was convicted on one count of using false identification to purchase ammunition, 18 U.S.C. § 922(a)(6), and one count of conspiring to export firearms without a license, 18 U.S.C. § 371; 22 U.S.C. § 2778. The district court sentenced him to two years in prison for each offense, to be served concurrently. Bravo appeals, contending that the trial court erred in admitting hearsay evidence in the form of records of a firearms dealer. He also complains that comments of the prosecuting attorney during cross-examination of Bravo and in closing argument constituted prosecutorial misconduct. We affirm.

In proving both of the offenses for which Bravo was convicted, the government relied in part upon records of firearms and ammunitions sales prepared by the Globe Store (Globe), located in Brownsville, Texas. Bravo's conviction for using false identification to purchase ammunition was based upon his purchase of ammunition from Globe and two of the overt acts alleged by the government to be in furtherance of the conspiracy to export firearms without a license were purchases of firearms from Globe. Globe had gone out of business by the time of trial, and no person who had been associated with the store testified at the trial. The government, instead, established the occurrence of the firearms and ammunition purchases by means of sales records which Globe was required to maintain by regulations promulgated by the Bureau of Alcohol, Tobacco, and Firearms (ATF). See 27 C.F.R. §§ 178.124, 178.125 (1978). When a firearms dealer ceases to do business, ATF regulations require it to forward these records to the ATF for permanent storage. See 27 C.F.R. § 178.127 (1978). Prior to the introduction of the records, an ATF agent testified that the ATF was the current custodian of Globe's records, that the records being introduced were those made by Globe, and that Globe had prepared the records pursuant to ATF regulations. Bravo duly objected to the admission of the records on the ground they constituted hearsay evidence and could not be admitted under the business records exception to the hearsay rule.

Federal Rule of Evidence 803(6) excludes from the application of the hearsay rule

(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 primary emphasis of Rule 803(6) is on the reliability or trustworthiness of the records sought to be introduced, and the trial judge exercises broad discretion in determining the inadmissibility. United States v. Colyer, 571 F.2d 941 (5th Cir.), Cert. denied, 439 U.S. 933, 99 S.Ct. 325, 58 L.Ed.2d 328 (1978); United States v. Flom, 558 F.2d 1179 (5th Cir. 1977); United States v. Jones, 554 F.2d 251 (5th Cir.), Cert. denied, 434 U.S. 866, 98 S.Ct. 202, 54 L.Ed.2d 142 (1977). Bravo asserts that the district court abused its discretion in admitting Globe records on two grounds. First, he contends that the Supreme Court's reasoning in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), indicates that records which a firearms dealer prepares to comply with ATF regulations and which are used solely by the ATF lack sufficient trustworthiness to be admissible under Rule 803(6). Next he argues, relying on United States v. Davis, 571 F.2d 1354 (5th Cir. 1978), that the government did not properly qualify the Globe records as business records under Rule 803(6) because it did not show that they were completed at or near the time of the transaction recorded, that they were made by a person with knowledge of the events recorded, or that Globe relied on the records in conducting its day-to-day business activities.

In Palmer v. Hoffman the Supreme Court ruled that an accident report prepared by a railroad employee pursuant to company rules was not admissible under the business records exception to the hearsay rule because it was not prepared " 'in the regular course' of business." The court found that the railroad prepared such reports primarily for use in litigation, not in the conduct of its business. 318 U.S. at 111-115, 63 S.Ct. at 479-481. In Matthews v. United States, 217 F.2d 409 (5th Cir. 1954), this court, relying upon Palmer, held that the Federal Business Records Act, 28 U.S.C. § 1732(a) (repealed 1975), did not permit the introduction of "sugar reports" which a business had compiled solely to comply with a statutory duty to record extraordinary sales of sugar. The court refused to accord the necessary trustworthiness to the records because they were not used as an integral part of the business in its own interest. The records which were found to be inadmissible in Matthews consisted of three IRS forms on which a feed and grain business had reported three separate sales of 3,600 pounds of sugar to the same individual. The sugar reports were made in compliance with regulations issued by the Internal Revenue Service pursuant to 26 U.S.C. § 2811 (1939) (similar provision currently codified at 26 U.S.C. § 5291), which authorized the Commissioner to require sellers of substances used in the manufacture of distilled spirits to report sales of those substances.

The Globe records, however, differ materially from those ruled inadmissible in Palmer and Matthews. They consisted of "transaction logs," which were bound volumes recording ammunition sales, and documents known as "Form 4473s," which recorded firearms sales. At trial an ATF agent testified that Globe prepared these records pursuant to ATF regulations. The ATF promulgated these regulations to facilitate enforcement of 18 U.S.C. § 922(b)-(d), which prohibits licensed dealers from selling firearms or ammunition to certain types of purchasers. For a sale of ammunition the munitions dealer must make the following record:

(c) Ammunition disposition (1) Sales to nonlicensees. The sale or other disposition of ammunition, or of an ammunition curio or relic, shall be recorded in a bound record at the time a transaction is made, except that no record need be maintained for the sale of shotgun ammunition ammunition suitable for use only in rifles generally available in commerce, or component parts of these types of ammunition. Sales or other dispositions of ammunition which are interchangeable between rifles and pistols or revolvers (for example, .22 Rimfire, .45 Pistol and Revolver, and the like) must be recorded. The bound record shall be maintained in chronological order by date of sale or disposition of the ammunition, and shall be retained on the licensed premises of the licensee for a period not less than two years following the date of the recorded sale or disposition of the ammunition.

The bound record entry shall show:

(i) The date of the transaction;

(ii) The name of the manufacturer;

(iii) The caliber or gauge (or type of ammunition component);

(iv) The quantity of ammunition (or component);

(v) The name, address, and date of birth of the nonlicensee; and

(vi) The method used to establish the identity of the ammunition purchaser.

However, when a commercial record is made at the time a transaction is made, a licensee may delay making an entry into the bound record if he or she complies with provisions of paragraph (d) of this section.

(d) Commercial records of ammunition sales. When a commercial record is made at the time of sale or other disposition of ammunition, or of any ammunition curio or relic, and such record contains all information required by the bound record prescribed by paragraph (c) of this section, the licensed dealer or licensed collector transferring the ammunition, or ammunition curio or relic, may, for a period not exceeding 7 days following the date of such transfer, delay making the required entry into such bound record: Provided, That the commercial record pertaining to the transfer is; (1) maintained by the licensed dealer or licensed collector separate from other commercial documents maintained by such licensee, and (2) is readily available for inspection on the licensed premises until such time as the required entry into the bound record is made.

27 C.F.R. § 178.125(c), (d) (1978). The dealer must also record all firearms sales in a bound volume, See 27 C.F.R. § 178.125(e) (1978), and for each sale 27 C.F.R. § 178.124(a), (c) (1978) dictates that he:

shall not sell or otherwise dispose, temporarily or permanently, of any firearm to any person, other than another licensee, . . . unless he records the transaction on a firearms transaction record, Form 4473: . . . .

(c) Prior to making an over-the-counter transfer of a firearm to a nonlicensee who is a resident of the State in which the licensee maintains his business or...