United States v. Sage
| Decision Date | 15 April 2015 |
| Docket Number | Case No. 1:14-mj-00192-SAB |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRANDON SAGE, Defendant. |
On October 29, 2014, an information was filed charging Defendant Brandon Sage with operating a vehicle at a speed in excess of the speed limit in violation of 36 C.F.R. § 4.21(c). A court trial was conducted before the undersigned on March 19, 2015. The government is represented by Bayleigh Jordan Pettigrew. Defendant Sage is represented by Donna Marie Standard. Two witnesses testified at the trial: Ranger Samuel Salter who conducted the traffic stop and issued the citation, and Hanna Paulsen who was a passenger in Defendant's vehicle at the time of the traffic stop.
During the trial, defense counsel objected to the Government's admission of evidence regarding the certification of the radar device used by Ranger Salter during the incident onconfrontation clause grounds.1 Upon conclusion of the testimony, the parties were ordered to file briefing on the admissibility of the certification. On March 27, 2015, the parties filed their briefs. The Government filed a reply to Plaintiff's brief on April 3, 2015. Having considered the evidence presented during the trial of this matter and the briefing filed by the parties, the Court issues the following order finding Defendant Sage guilty of a violation of 36 C.F.R. § 4.21(c).
Ranger Samuel Salter has been a park ranger since 2007. Ranger Salter was a seasonal ranger for the park service from 2007 through 2010 working at different parks throughout the United States. Ranger Salter has been working in Sequoia National Park since 2012 and is stationed at the Log Pole Subdistrict. Sequoia National Park is in the special maritime and territorial jurisdiction of the United States in the State and Eastern District of California.
Ranger Salter was on duty on August 16, 2014, in Sequoia National Park. At the beginning of his shift, Ranger Salter tested his radar unit using the 35 and 65 mile per hour tuning forks and determined that it was in proper working order. At approximately 4:00 p.m., Ranger Salter was in his patrol vehicle heading north on the General's Highway. After he crossed the Clover Creek Bridge, Ranger Salter observed a Toyota Tundra heading south on the General's Highway. The speed limit on the stretch of roadway is 35 miles per hour. Ranger Salter visually estimated the Toyota Tundra was travelling approximately 55 miles per hour. He checked his radar unit which displayed a target speed of 56 miles per hour.
After observing the vehicle was driving in excess of the speed limit, Ranger Salter observed that the vehicle braked and slowed to 40 miles per hour. Ranger Salter turned his vehicle around and stopped the vehicle. Ranger Salter identified the driver of the vehicle, Defendant Sage, by his driver's license. After the vehicle stop, Ranger Salter tested the radar unit by performing a calibration check and determined that it was working properly.
During the trial, the Government presented evidence that the radar unit used by Ranger Salter to confirm his visual estimate of the speed of Defendant Sage's vehicle had been certified on August 16, 2012. The Government moved to enter into evidence a Rule 902(11) certificate (Exhibit 3(a)), and a "Certification Concerning Design & Construction of Speed Measuring Devices 'RADAR' " prepared by Edward Cole through the testimony of Officer Salter (Exhibit 3(b)). Defendant objected to the exhibit on numerous grounds which were overruled, however, the parties were granted the opportunity to brief the issue of whether admission of the certification would violate the Confrontation Clause of the Sixth Amendment.
Defendant objects on the grounds that the document is hearsay in that Mr. Cole is attempting to qualify himself as an expert by the document and is attesting to the accuracy of the radar unit at the time that Ranger Salter used it. Further, it is Defendant's position that the statements included in the certification are testimonial because they are attesting to the accuracy of the radar unit and the tuning forks. Defendant contends that, since Mr. Cole did not appear at trial, the document should not be admitted into evidence.
The Government contends that the certification is a business record under Federal Rules of Evidence 803(6); and therefore, the testimony of Ranger Salter alone is sufficient to admit it into evidence. As a secondary means of authenticating the document, the Government provided a 902(11) declaration from the author of the document. Further, the Government argues that under Crawford v. Washington, 541 U.S. 36 (2004) and it progeny, business records are admissible absent confrontation where they are not created for the purpose of litigation. The business record at issue here was created in the ordinary course of business related to calibration and accuracy of the radar unit and tuning forks and were not created for the purpose of litigation. The Government requests that the certification be entered into evidence.
Federal Rule of Evidence 803(6) provides that business records are not excluded by the rule against hearsay regardless of whether the declarant is available as witness where:
In this instance, the Government has provided evidence that Defendant was given advance notice of the intent to offer the record on December 14, 2014, and again on March 13, 2015. (ECF No. 10-1; 10-3.) The Government has complied with the requirements of Rule 902(11) and the document is self-authenticating. Defendant's objection on this ground is overruled.
Ranger Salter testified that he was the custodian of records for the Parks Department for the Lodgepole subdivision. He testified that the certificate (Exhibit 3(b)) was received and kept in the regular course of the Park business. Ranger Salter and the other rangers regularly access the files and certifications in issuing citations. The Ninth Circuit has held that documents can be admitted as business records of an entity, even when the entity did not create the records, as long as the other requirements of Rule 803(6) are met. United States v. Childs, 5 F.3d 1328, 1333-34 (9th Cir. 1993). "[R]ecords a business receives from others are admissible under Federal Rule of Evidence 803(6) when those records are kept in the regular course of that business, relied upon by that business, and where that business has a substantial interest in the accuracy of therecords." MRT Const. Inc. v. Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998).
While Defendant argues that the Government is attempting to qualify Mr. Cole as an expert in the field, the Court finds that the document has been presented for the purpose of demonstrating that radar unit and tuning forks at issue in this action were tested by Mr. Cole and found to be met or exceed all existing performance standards on August 16, 2012. (Government's Exhibit 3(b) at p. 2.) Defendant has not shown that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Fed. R. Evid. 803(6)(E). The Government has laid the appropriate foundation to have Exhibit 3(b) admitted under the business record exception to the rule against hearsay.
While Defendant argues that Mr. Cole cannot provide testimony that the machine was operating correctly on the date in question, this goes to the weight of the certification, not to the admissibility. Accordingly, Defendant's objections on the basis of hearsay are overruled.
Defendant argues that admission of the certification violates his right to confront witnesses against him in this action, and therefore, must be excluded. Defendant argues the facts applicable to the radar device since it was tested: it was shipped back to the Park, moved from one car to another, etc. Defendant contends that these facts preclude the admission of the certificate. However, the conditions that the radar unit and tuning forks have been subjected to since being tested relate to the weight of the evidence and not to whether the certification is testimonial.
The Confrontation Clause of the Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford, the Supreme Court held that testimonial statements of witnesses may only be admitted against an accused where the declarant is unavailable...
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