Free Motion to Admit Records - District Court of California - California

Case 3:08-cr-00918-L

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KAREN P. HEWITT United States Attorney CHRISTOPHER S. STRAUSS ELIZABETH C. HADDEN Special Assistant U.S. Attorneys United States Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Attorneys for Plaintiff United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) )

UNITED STATES OF AMERICA, Plaintiff, v. FE S. GARRETT Defendant.

Criminal Case No. 08CR0918-L GOVERNMENT'S MOTION IN LIMINE TO INTRODUCE BUSINESS RECORDS Fed. R. Evid. 803(6) and 902(11)

The United States, by and through its counsel Karen P. Hewitt, United States Attorney, Christopher S. Strauss and Elizabeth C. Hadden, Special Assistant United States Attorneys hereby submits its Motion in Limine to Introduce Business Records. The United States respectfully moves the Court to rule, pursuant to Federal Rule of Evidence 104, that the government exhibits listed in the table below are admissible as business records pursuant to Federal Rule of Evidence 803(6) and that the below business records are authentic because they have been certified pursuant to Federal Rule of Evidence 902(11). A copy of the certification1/ for each exhibit is attached to this motion as

The Comerica Bank records were provided on April 23, 2008. We are waiting for the certification to be completed. The certification should be completed and provided on August 25, 2008 (continued...)

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Exhibit 1. A pretrial ruling to this effect will permit the trial to proceed more efficiently and expeditiously, and will prevent inconvenience to witnesses who would be traveling from out of state for the sole purpose of authenticating business records. The following documents2/ are admissible records of regularly conducted activity pursuant to Federal Rule of Evidence 803(6) and all are certified by a written declaration by a custodian or other qualified person certifying pursuant to Federal Rule of Evidence 902(11) that the documents 1) were made at or near the time of the occurence of the matters set forth by or from information transmitted by a person with knowledge of those matters; 2) were kept in the course of the regularly conducted activity; and 3) were made by the regularly conducted activity as a regular practice: Bates-Stamp Range FG-BK-BOA82-95 Pages: 0000400228 Business Records Description Bank of America, 10533-01682 (FE SIMBAJON GARRETT / GARRETT'S REALTY & MORTGAGE)

Bank of America, 01713-09955 (FE SIMBAJON GARRETT / GARRETT'S REALTY & MORTGAGE

FG-BK-COM466 Pages: 00001 00088

Comerica Bank, 1892362466 (FE S GARRETT DBA GARRETT'S REALTY & MORTGAGE)

(...continued) or August 26, 2008. The documents from Sierra Pacific Mortgage certification was provided to the government on August 22, 2008 and is being provided to defendant contemporaneously. All of these documents are the underlying admissible evidence for which the Federal Rule of Evidence 1006 summaries are based. The notice for the Federal Rule of Evidence 1006 summaries was filed on July 31, 2008.
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FG-BK-NICU-0050 Pages: 0002 - 1822

North Island Federal Credit Union, 97339550 (G M GARRETT)

North Island Federal Credit Union, , 97339500 (G M GARRETT) FG-BK-NICU52 North Island Federal Credit Union, 0114708052 Pages: 00002 00773 FG-BK-SWCB059 Pages: 00003 00409 FG-BK-SWCB506 Pages: 00001 00082 FG-BKWAMU790 Pages: 00002 00039 FG-BKWAMU425 Pages: 00001 00007 Washington Mutual Bank, 4444-007542-5 (GARRETT'S TAX & ACCTG. SERVICE / FE S GARRETT) Southwest Community Bank, 51004059 (FE S GARRETT DBA GARRETT'S REALTY & MORTGAGE) Southwest Community Bank, 50004506 (FE S GARRETT) Washington Mutual Bank, 389-623079-0 (FE S GARRETT TRUSTEE FOR GREGORY GARRETT) (GARRETT'S REALTY AND MORTGAGE)

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FG-BKWAMU441 Pages: 00002 00035 FG-BKWAMU934 Pages: 00001 00392 FG-AM-2 Pages: 0008 - 0009 FG-SP Page: 0002 FG-TI Pages: 0002 - 0006 FG-TI Pages: 0008-0010 FG-TI Pages: 0012 - 0013

Washington Mutual Bank, 444-007544-1 (GARRETT'S REALTY & MORTGAGE / FE S GARRETT)

Washington Mutual Bank, 387-485493-4 (GREGORY GARRETT JR)

American Mortgage Network, Inc. List of Loans Originated by Garrett's Realty & Mortgage Sierra Pacific Mortgage Check Register for All Checks Issued to Garrett's Realty & Mortgage First American Title Disbursement Reports and Checks Issued to Garrett's Realty & Mortgage Commonwealth Land Title Company Escrow Ledger and Checks Issued to Garrett's Realty & Mortgage Laurel Hill Escrow Services, Inc. Checks Issued to Garrett's Realty & Mortgage Southland Title Settlement Statement, Disbursement Report, Copies of Checks Issued to Garrett's Realty & Mortgage

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FG-TI Pages: 0015 - 0027

FG-TI Pages: 0036 - 0052

West Coast Escrow Settlement Statements, Records of Disbursements

On April 23, 2008, defendant was provided the business records and the certifications from

25 Bank of America, Comerica Bank3/, North Island Credit Union, Placer Sierra Bank (Southwest 26
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The Comerica Bank records were provided on April 23, 2008.

We are waiting for the (continued...)
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1 Community Bank), Washington Mutual Bank and Sierra Pacific Mortgage4/. The business records 2 and certification of American Mortgage Network were provided to defendant on April 23, 2008 with 3 further production on June 16, 2008. On June 12, 2008 defendant was provided the business records 4 and certifications of First American Title, Commonwealth Land Title, Laurel Hill Escrow Services, 5 Inc., Southland Title and Westcoast Escrow Company. 6 On July 30, 2008, Christopher Strauss, Special United States Attorney, sent a letter to

7 defendant requesting a stipulation as to authenticity and admissibility of the above business records. 8 On August 11, 2008, Erica Zunkel, defendant's stand-by counsel, emailed Christopher Strauss and 9 stated that defendant "is willing to submit to the admissibility of the business records." On August 10 21, 2008, Erica Zunkel emailed Christopher Strauss and stated that defendant "has changed her mind 11 about the stipulations." 12 To introduce these records at trial with live witnesses would require the government to bring

13 11 additional witnesses to San Diego. This would impose a large and unnecessary burden on the 14 witnesses and their employers. 15 16 LAW AND ARGUMENT The Court may determine the admissibility of evidence before the commencement of trial.

17 Fed. R. Evid. 104. When evidence is admitted subject to the jury's finding that a threshold condition 18 is satisfied, "the judge makes a preliminary determination whether the foundation evidence is 19 sufficient to support a finding of fulfillment of the condition." United States v. Gil, 58 F.3d 1414, 20 1419 (9th Cir. Cal. 1995) citing Fed. R. Evid. 104(b) advisory committee's note; see United States v. 21 Reilly, 33 F.3d 1396, 1404-05 (3rd Cir. 1994) ("Once the court finds that evidence has been 22 introduced sufficient to permit a reasonable juror to find that the matter in question is what its 23 proponent claims, a sufficient foundation for introduction in evidence has been laid.") 24 25 26 27 28 (...continued) certification to be completed. The certification should be completed and provided on August 25, 2008 or August 26, 2008. The Sierra Pacific Mortgage certification was provided to the government on August 22, 2008 and is being provided to the defendant contemporaneously.
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The government exhibits at issue consist of the records of domestic financial institutions,

2 including banks and mortgage companies. As such, these records are exceptions to the hearsay rule 3 because they are records of regularly conducted activity as defined in Rule 803(6). This rule states: 4 5 6 7 8 9 The Rule specifies that a live witness need not testify at trial to prove that a record qualifies 10 under Rule 803(6), because a certification that complies with Rule 902(11) is sufficient for this 11 purpose. The domestic financial records at issue in this motion have been certified by their 12 custodians, pursuant to Rule 902(11) as meeting the requirements of Rule 803(6). Copies of these 13 certifications are attached to this motion, and defendant was just given notice that the United States 14 intended to introduce records pursuant to Rule 902(11). Accordingly, these exhibits should be 15 admitted as both authentic and exceptions to the hearsay rule. 16 The admissibility of business records under Rules 803(6) and 902(11) and the procedure set 17 forth in Rule 104 for determination of the preliminary questions regarding admissibility are 18 unaffected by the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), which 19 applies to certain hearsay. In Crawford, the Supreme Court held that "testimonial" hearsay may not 20 be admitted in a criminal trial unless the declarant is unavailable and the defendant had a prior 21 opportunity for cross-examination. However, the Court made clear that business records admitted 22 pursuant to an evidentiary hearsay exception are not testimonial statements with which the Sixth 23 24 25 26 27 28 The decision in Crawford, assuring a right to confront witnesses at trial, also has no bearing on the pretrial determination of admissibility authorized by Rule 104. That rule has long provided that the rules of evidence do not apply in the trial judge's determination of admissibility Further, the Supreme Court has often held that the right of confrontation does not apply to the same extent at pretrial (continued...)
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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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method of 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.

Amendment Confrontation Clause is concerned. Id. at 56.5/

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The Ninth Circuit has held that a business record is not testimonial because it is kept in the

2 regular course of business and therefore the confrontation clause is not at issue. United States v. 3 Evans, 178 Fed. Appx. 747, 750-751 (9th Cir. Cal. 2006) citing Fed. R. Evid. 803(6); Crawford v. 4 Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Parle v. Runnels, 387 F.3d 5 1030, 1037 (9th Cir. 2004). Additionally, Rule 902(11) certifications are not testimonial in nature. 6 United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. Wash. 2005); United States v. Rueda-Rivera, 7 396 F.3d 678, 680 (5th Cir. 2005) (per curiam) (Holding that a routine certification by the custodian 8 of a domestic public record and a routine attestation to authority and signature are not testimonial in 9 nature.); United States v. Cervantes-Flores, 421 F.3d 825, 833 (9th Cir. 2005) (holding that a 10 certification of the non-existence of business records under Rule 803(10) is not testimonial). 11 Here, all of the business records are admissible pursuant to Rule 803(6) and have been

12 previously provided to defendant. Each record has been certified by a custodian of records. Those 13 certifications also have been provided to defendant. Finally, notice has been given by the 14 government prior to trial that the we intend to admit these records pursuant to 803(6) and 902(11). 15 Therefore, the United States has complied with the necessary rules of evidence to allow the business 16 records to be admitted without having to physically call each custodian to testify during the trial. 17 18 19 CONCLUSION Accordingly, the government respectfully requests that the Court enter a pretrial order finding

20 the government exhibits listed to be authentic and not barred by the hearsay rule pursuant to Rules 21 803(6) and 902(11). 22 23 24 25 26 27 28 (...continued) hearings as it does at trial. For example, the Court has held that hearsay is admissible at a pretrial suppression hearing. United States v. Raddatz, 447 U.S. 667, 679 (1980); States v. Matlock, 415 U.S. 164, 172-75 (1974) (suppression hearing); McCray v. Illinois, 386 U.S. 300, 312-13 (1967) (probable cause hearing).
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Government's Motion in Limine to Introduce Business Records

DATED: August 22, 2008

/s/ Elizabeth C. Hadden Elizabeth C. Hadden Special Assistant United States Attorney Attorney for Plaintiff United States of America Email: [email protected] /s/ Christopher S. Strauss Christopher S. Strauss Special Assistant United States Attorney Attorney for Plaintiff United States of America Email: [email protected]

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) Case No. 08CR0918-L

4 Plaintiff, 5 v. 6 FE S. GARRETT, 7 Defendant. 8 9 IT IS HEREBY CERTIFIED THAT: 10

CERTIFICATE OF SERVICE

I, Elizabeth C. Hadden, am a citizen of the United States and am at least eighteen years of age.

11 My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. 12 13 I am not a party to the above-entitled action. I have caused service of GOVERNMENT'S MOTION IN LIMINE TO INTRODUCE

14 BUSINESS RECORDS, pro se, by sending a copy of the motion via Federal Express on August 22, 2008 15 to Defendant at the following address: 16 17 Fe Garrett The Geo Group 18 Reg. # 0799-0298 Western Region Detention Facility 19 220 West C Street San Diego, CA 92101 20 // 21 22 23 24 25 26 27 28 10

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1 2 3 4 I have caused service of GOVERNMENT'S MOTION IN LIMINE TO INTRODUCE

5 BUSINESS RECORDS on Defendant's standby counsel by electronically filing the foregoing with the 6 Clerk of the District Court using its ECF System, which electronically notifies them: 7 8 Erica Kristine Zunkel [email protected] 9 Federal Defenders of San Diego 225 Broadway, Suite 900 10 San Diego, CA 92101 11 I declare under penalty of perjury that the foregoing is true and correct. 12 Executed on August 22, 2008. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Government's Motion in Limine to Introduce Business Records

/s/ Elizabeth C. Hadden ELIZABETH C. HADDEN Special Assistant United States Attorney

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