United States v. Pantic , 308 F. App'x 731 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4926
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
UGLJESA PANTIC,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00479-NCT)
Argued: October 29, 2008 Decided: January 23, 2009
Before WILKINSON and DUNCAN, Circuit Judges, and Richard D.
BENNETT, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: K. E. Krispen Culbertson, Greensboro, North Carolina,
for Appellant. Patrick Auld, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Anna Mills Wagoner, United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ugljesa Pantic appeals his conviction on charges of making
materially false statements on his United States immigration
applications in violation of 18 U.S.C. § 1546(a), specifically
failure to report his military service in the Army of the
Republika Srpska (the “VRS”) during the Bosnian Civil War of
1992-1995. During pretrial hearing and trial, Pantic
unsuccessfully challenged the admissibility of military records
that were seized from the Zvornik Brigade headquarters that
revealed his former military service in the VRS. Because the
district court did not abuse its discretion in admitting the
records as authenticated under Fed. R. Evid. 901 and within the
Fed. R. Evid. 803(8) hearsay exception for public records, we
affirm. 1
I.
The International Criminal Tribunal for the Former
Yugoslavia (the “ICTY”) in The Hague investigates alleged war
crimes that occurred during the Bosnian Civil War. (J.A. 35,
180.) The ICTY investigated the July 1995 Srebrenica massacre,
1
The related case of United States v. Vidacak, No. 07-4904
(4th Cir. Jan. 23, 2009), concerns the same issue with respect
to the admissibility of military documents seized from the
Zvornik Brigade headquarters.
2
wherein elements of the VRS, primarily from the Zvornik and
Bratunac Brigades, over-ran a United Nations safe-area and
executed thousands of Bosnian Muslims. In the spring of 1998,
ICTY agents executed a search warrant at the Zvornik Brigade
headquarters and seized various military records. (J.A. 43,
201.) The ICTY provided a list of persons who served in the VRS
to the Department of Homeland Security’s Department of
Immigration and Customs Enforcement (“ICE”), to be cross-
referenced against a database of refugees. As a result of this
inquiry, it was determined that Pantic had served in the VRS.
(J.A. 217.)
On December 11, 2006, ICE agents located Pantic at his home
and with the aid of an interpreter, Pantic waived his Miranda
rights and admitted that he served in the VRS during the Bosnian
Civil War and that he had knowingly falsified his U.S.
immigration applications to conceal that service. (J.A. 281-83,
307-14.)
On April 4, 2007, Pantic filed a motion in limine to
exclude, inter alia, four exhibits of military records
indicating Pantic’s military service during 1992-1995. (J.A.
11-14.) The district court held a pre-trial hearing jointly
with two defendants in related cases to consider the issue.
(J.A. 16-173.) The records were ultimately admitted at trial
3
over Pantic’s objection. (J.A. 46-47.) Richard Butler, a
military analyst and researcher with the ICTY, testified to
demonstrate the authenticity of the records and explained his
involvement in the seizure, cataloguing, and storage of the
records from the Zvornik Brigade headquarters. (J.A. 31, 176.)
At the close of trial, Pantic was found guilty and sentenced to
time served with three years of supervised release and a special
assessment of $100. (J.A. 341-46.)
II.
This Court “review[s] decisions to admit evidence for abuse
of discretion.” United States v. Forrest, 429 F.3d 73, 79 (4th
Cir. 2005). Accord United States v. Bostian, 59 F.3d 474, 480
(4th Cir. 1995); United States v. Russell, 971 F.2d 1098, 1104
(4th Cir. 1992). “Under the abuse of discretion standard, this
Court may not substitute its judgment for that of the district
court; rather, [it] must determine whether the [district]
court’s exercise of discretion, considering the law and the
facts, was arbitrary or capricious.” United States v. Mason, 52
F.3d 1286, 1289 (4th Cir. 1995).
A.
Pantic contends that the district court abused its
discretion in admitting the military records since they were
improperly authenticated. He claims that the records are not
4
self-authenticating under Fed R. Evid. 902(3), and that the
district court failed to make a finding that the purported
military records were “public documents.” In addition, Pantic
argues that the Government failed to show sufficient indications
of reliability to meet the authentication requirements under
Fed. R. Evid. 901(a). He notes that Government witness Richard
Butler did not testify as to how the records were created and
their specific history prior to their seizure in 1998.
To satisfy the burden of authentication under Fed. R. Evid.
901(a), a proponent need only present “evidence sufficient to
support a finding that the matter in question is what the
proponent claims.” 2 Fed. R. Evid. 901(a). The district court
plays a gate-keeping role in assessing whether the proponent has
established a suitable foundation from which the jury could
reasonably find that the evidence is authentic. United States
v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992). The proponent’s
burden of authentication is slight--only a prima facie showing
is required. See United States v. Goichman, 547 F.2d 778, 784
(3d Cir. 1976) (“There need only be a prima facie showing, to
2
Despite the attention provided by Pantic to the issue, the
Government never contended that the military records qualified
as self-authenticating documents under Fed. R. Evid. 902(3).
Since we find that the records were sufficiently authenticated
under Fed. R. Evid. 901, we need not address the issue with
respect to Rule 902(3).
5
the court, of authenticity, not a full argument on
admissibility.”). See also, Weinstein’s Federal Evidence §
901.02[3] (2008) (“Generally speaking, the proponent of a
proffered exhibit needs only to make a prima facie showing that
the exhibit is what the proponent claims it to be.”).
The district court did not abuse its discretion in finding
that the Government satisfied its burden of authentication.
Richard Butler’s testimony was independently sufficient to
establish a prima facie case that the military documents
revealed Pantic’s participation in the VRS during the Bosnian
Civil War. Butler testified in detail about his involvement in
the seizure, cataloguing, and storage of the records from the
Zvornik Brigade headquarters. Although he never accounted for
the history of the documents prior to their seizure, under Rule
901, a proponent need not establish a perfect chain of custody
for documentary evidence to support their admissibility. United
States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)
(“deficiencies in the chain of custody go to the weight of the
evidence, not its admissibility; once admitted, the jury
evaluates the defects, and based on its evaluation, may accept
or disregard the evidence.”). Indeed, sufficient indicia of
reliability existed to support the admissibility of the records.
The documents were found where they would be expected to be
found--the Zvornik Brigade headquarters that was still
6
functioning at the time of the search. They bore unique
indexing numbers that rendered them readily identifiable as VRS
records from the Bosnian Civil War. Pantic, on the other hand,
has offered no basis for inferring that the records were forged
or altered.
B.
Pantic also argues that the military records should have
been excluded as inadmissible hearsay and that the exception set
forth in Fed. R. Evid. 803(8) is not applicable under the facts
of the case. However, we find that the records clearly fall
within the hearsay exception of Fed. R. Evid. 803(8) in that
they constitute “[r]ecords, reports, statements, or data
compilations, in any form, or public offices of agencies,
setting forth (A) the activities of the office or
agency . . . .” Pantic contends that this exception is not
applicable since the records at issue cannot be said to
constitute “public documents.” But this argument is both
unsupported and unavailing--courts regularly admit foreign
records pursuant to this exception. See, e.g., United States v.
Demjanjuk, 367 F.3d 623, 631 (6th Cir. 2004) (Nazi German
Service Identity Card); United States v. Garland, 991 F.2d 328,
334-35 (6th Cir. 1993) (Ghanian judgment); United States v.
Grady, 544 F.2d 598, 604 (2d Cir. 1976) (Northern Ireland
constabulary firearms report).
7
The contents of the military records themselves confirm
that they are records of the activities of the VRS, and contrary
to Pantic’s suggestion, Rule 803(8) does not require a
sponsoring witness. See, e.g., United States v. Doyle, 130 F.3d
523, 546 (2d Cir. 1997); United States v. Loyola-Dominguez, 125
F.3d 1315, 1318 (9th Cir. 1997). Nonetheless, Butler’s
testimony regarding the seizure, cataloguing, and storage of the
records, and his identification of the documents based upon
their indexing numbers and their distinctive characteristics
further reinforced their qualification under the Rule 808(8)
hearsay exception.
III.
The district court did not abuse its discretion in
admitting the military records revealing Pantic’s involvement in
the VRS. 3 Accordingly, we affirm.
AFFIRMED
3
Pantic argues that because the foreign military documents
were inadmissible, his confession was also inadmissible under
the corpus delicti rule, as established in United States v.
Sapperstein, 312 F.2d 694 (4th Cir. 1963). (Appellant Br. 25.)
Under this rule a defendant’s “extrajudicial confession must be
corroborated as to the corpus delicti.” Sapperstein, 312 F.2d
at 696. However, because we hold that the district court did
not err in admitting the VRS records, Pantic’s corpus delicti
claim is moot.
8