United States v. Edward F. Davis , 285 F. App'x 661 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 21, 2008
No. 07-14534
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00071-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD F. DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 21, 2008)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Edward Free Davis appeals his conviction on two counts of executing and
attempting to execute a scheme and artifice to defraud the First National Bank of
Barnesville (First National), in violation of 18 U.S.C. §§ 2, 1344(1). On appeal,
Davis claims the district court erred in admitting falsified debt assignment sheets
generated by his company, International Carpets, Inc. (ICI), under the business
records exception to the general rule against the admission of hearsay evidence.
Specifically, Davis contends Amy Vaughn, the cash flow processor at First
National, was not competent to lay the foundation for the government’s exhibits
because the admitted documents were created by ICI, not First National.
A district court has broad discretion in determining the admissibility of
evidence, and we review its rulings on such matters for abuse of discretion.
United States v. Petrie, 302 F.3d 1280, 1285 (11th Cir. 2002). Hearsay is
generally not admissible as evidence. Fed. R. Evid. 802. However, the Federal
Rules of Evidence provide the following are not excluded by 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.
2
Fed. R. Evid. 803(6). “The touchstone of admissibility under the business records
exception to the hearsay rule is reliability.” United States v. Bueno-Sierra, 99
F.3d 375, 378 (11th Cir. 1996). “For this exception to be available, all persons
involved in the process must be acting in the regular course of
business—otherwise, an essential link in the trustworthiness chain is missing.” T.
Harris Young & Assocs., Inc. v. Marquette Elecs., Inc., 931 F.2d 816, 828 (11th
Cir. 1991). “[T]he proponent of a document ordinarily need not be the entity
whose first-hand knowledge was the basis of the facts sought to be proved.”
Bueno-Sierra, 99 F.3d at 379. Nonetheless, “the proponent must establish that it
was the business practice of the recording entity to obtain such information from
persons with personal knowledge and the business practice of the proponent to
maintain the records produced by the recording entity.” Id.Though the assignment sheets in question were created by ICI and the
foundation for their admission was laid in part by Vaughn, an employee of First
National, the court did not abuse its discretion in admitting them as business
records. The Government supported the introduction of the assignment sheets
with evidence that the entities involved in their creation, transmission, and storage
were operating in the regular course of business. The testimony of Charles
Gallman, president of American Financial Services (American Financial),
3
established his company received the assignment sheets from ICI, which created
the documents. American Financial then faxed the assignment sheets to First
National in the regular course of American Financial’s business. The testimony of
Vaughn established that First National received the documents from American
Financial and kept them in the normal course of its business. Because all the
involved entities were operating in the normal course of business, all the links of
the “trustworthiness chain” are present with regard to the assignment sheets. See
T. Harris Young & Assocs., 931 F.2d at 828. Moreover, Vaughn, though not an
employee of ICI, was a qualified witness through whom to introduce the
assignment sheets, since she maintained records of these documents in her role as
cash flow processor once First National received them from American Financial in
its ordinary course of business. Thus, the Government established the assignment
sheets met the business records exception, and the district court did not abuse its
discretion in admitting them.
AFFIRMED
4