US v. Weiland

04-30091 (8-24-05). This is a roadmap of evidentiary challenges to records of convictions. The defendant was ACCA. He challenges the admission of his prior convictions (four burglaries). The 9th goes through the multiple layers of challenges, complicated by the fact that the certification was done on a fax. The district court admitted the contents of the "penitentiary packet" (fingerprints, photos and convictions) under the certification of FRE 902(11). This was error because it was not under seal nor properly certified and written notice was not given. However, the 9th found that it could be admitted under 902(2) and (4)(public documents not under seal and certified public documents). On this point, Tashima dissented, arguing that the fax indicated that the official didn't have possession of the originals, and so could not say that they matched nor could make comparisons. The fax undercuts the certification or assurance of truth that is required. The 9th also finds that the district court erred in admitting the evidence under the "regularly conducted business" exception of 803(6), but that the previous convictions could come in independently under 803(22)2)(evidence of a final judgment to prove an element) and the fingerprints/photo comes in under the public documents exception of 803(8). The 9th find error two (three errors all told) in admitting four convictions when one would have been enough to show he was a prohibited possessor. This again was harmless because of a limiting instruction and the evidence. There was no Crawford violation because the routine attestation of officials of routine records is not testimonial as meant, even though it was prepared for litigation. The 9th was mindful that requiring the presence of such custodians would be a tremendous burden on the courts. There was also no need to see if Roberts also applies as inherently trustworthy because the evidence comes in under nonhearsay exceptions.