United States v. Burruss, 13461.

Citation418 F.2d 677
Decision Date25 November 1969
Docket NumberNo. 13461.,13461.
PartiesUNITED STATES of America, Appellee, v. Cossie BURRUSS, Jr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

John S. Smart, Richmond, Va. (Court-appointed counsel) Minor, Thompson, Savage & Smithers, Richmond, Va., on brief, for appellant.

David G. Lowe, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before SOBELOFF, BOREMAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

Cossie Burruss was convicted on two counts charging interstate transportation of stolen motor vehicles (18 U.S.C. § 2312) and was given concurrent sentences of five years.

Involved in the case were the separate thefts of two automobiles from Washington, D. C. in April and June of 1968. There was substantial testimony that defendant was seen driving the cars in Louisa County, Virginia. To establish the fact that the vehicles were stolen, the prosecution subpoenaed the owners of the two automobiles. When they both failed to appear, the Government attorney offered "theft reports" taken from the Central Records Division of the Metropolitan Police Department, Washington, D. C.

The issue presented on this appeal is the admissibility, under the Federal Business Records Act, 28 U.S.C. § 1732,1 of business records containing hearsay. The appellant argues that the reports were improperly admitted; and that since they were the only evidence that the cars were stolen the convictions must be overturned. We agree.

The purpose of the Business Records Act was to allow reliable and accurate records to be introduced without the necessity of calling the person who made the entry. The act was not designed, however, to facilitate the introduction of hearsay as to which the reporter, if he appeared in person, would not be allowed to testify. The police officer who made the report would not have been permitted to tell what the owner of the car told him, for the purpose of establishing the truth of the owner's statement. Similarly, if the testimony is reduced to record form it continues to be inadmissible.

The statute provides that a business record of an event may be used as evidence of that event. The record in this case was merely a memorandum of the fact that a report was made, but does not bear witness to the truth of what is in the report. Thus, it would be permissible under the act to show that the car was reported stolen, but not that it was in fact stolen.

One author has put it well:

These acts were intended to make admissible records which, because made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recordation of third party statements is routine, taken apart from the source of the information recorded, imports no guaranty of the truth of the statements themselves. There is no reason for supposing an intention to make admissible hearsay of this sort. So to construe these statutes would make of them almost limitless dragnets for the introduction of random, irresponsible testimony beyond the reach of the usual tests for accuracy.

Note, Revised Business Entry Statutes: Theory & Practice, 48 Colum.L.Rev. 920, 926-927 (1948).

The person who reported the theft was not acting in the routine of his business, and therefore what he reported is not entitled to evidentiary consideration. The Advisory Committee on the Federal Rules of Evidence, appointed at the direction of the Judicial Conference of the United States, agrees. "All participants, including the observer or participant furnishing the information to be recorded, must be acting routinely, under a duty of accuracy, with employer reliance on the result or in short `in the regular course of business.'" Rules of Evidence for the United States District Courts and Magistrates, R. 8-03(a) (6), Advisory Committee's Note, 186-187 (Proposed Draft 1969).

In a criminal case, use of such records to prove commission of the crime deprives the defendant of the constitutionally guaranteed opportunity to confront his accuser. We conclude that the evidence was incompetent and should have been excluded.

Viewed superficially, it is arguable that the above construction of the statute contravenes its plain language, which reads:

All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.

28 U.S.C. § 1732 (Emphasis...

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34 cases
  • U.S. v. Smith
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 23 de outubro de 1975
    ...v. Modern Transfer Co., 2 Cir., 324 F.2d 737 (1963) (Marshall, J.); Bowman v. Kaufman, 2 Cir., 387 F.2d 582 (1967); United States v. Burruss, 4 Cir., 418 F.2d 677 (1969); United States v. Halperin, 5 Cir., 441 F.2d 612 (1971); United States v. Martin, 5 Cir., 434 F.2d 275 (1970); United Sta......
  • U.S. v. Keane
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 18 de agosto de 1975
    ...the letter was about to be read to the jury defense counsel conceded that it was a business record.46 See, e. g., United States v. Burruss, 418 F.2d 677 (4th Cir. 1969); United States v. Shiver, 414 F.2d 461 (5th Cir. 1969).47 See, e. g., note 19, Supra.48 We have previously discussed defen......
  • Jane Doe v. Bd. of Educ. of Prince George's Cnty., 14201 Sch. Lane Upper Marlboro
    • United States
    • U.S. District Court — District of Maryland
    • 18 de novembro de 2013
    ...unsworn statements of a witness are mere hearsay and are, as such, generally inadmissible as affirmative proof.”); United States v. Burruss, 418 F.2d 677, 678 (4th Cir.1969) (reasoning that witness statements to police officers are usually inadmissible double hearsay); United States v. Fabi......
  • Colvin v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 8 de junho de 1973
    ...(3 Cir. 1962), 305 F.2d 121, 123-124. Hearsay contained in a police report is inadmissible under 28 U.S.C. § 1732. United States v. Burruss (4 Cir. 1969), 418 F.2d 677, 679; United States v. Graham (6 Cir. 1968), 391 F.2d 439, 447-448; United States v. Shiver (5 Cir. 1969), 414 F.2d 461, 46......
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