United States v. Wayne Brown ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2007
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Wayne Brown, *
*
Defendant - Appellant. *
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Submitted: October 8, 2002
Filed: January 9, 2003
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Before BOWMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Wayne Brown of possessing counterfeit currency in violation
of 18 U.S.C. § 472. Brown appeals, arguing the district court1 abused its discretion
in overruling his hearsay objection to testimony by a Secret Service agent based upon
the agency’s database for tracking counterfeit currency, and clearly erred in imposing
a two-level enhancement under U.S.S.G. § 3B1.1(c) for Mr. Brown’s role as an
organizer of the criminal activity. We affirm.
1
The Honorable Ronald E. Longstaff, Chief Judge of the United States District
Court for the Southern District of Iowa.
I.
At trial, Eric Johnson, an acquaintance of Mr. Brown, testified that he was
working as a clerk at a T J Maxx store in Des Moines, Iowa in late November 2000.
Brown displayed a roll of counterfeit bills at a local night club, said he had obtained
the bills in Detroit, Michigan, and asked Johnson if Brown could pass some of the
bills at Johnson’s checkout station at T J Maxx. About a week later, Brown appeared
at T J Maxx and passed counterfeit bills through Johnson’s station. Brown later gave
Johnson two counterfeit $50 bills and some clothing. Courtney Steverson testified
that Brown gave her a counterfeit $50 bill to pay for a round of drinks while she was
working as a cocktail waitress at the SuperToad lounge in Des Moines.
The government’s final witness was Tony Every, a special agent of the United
States Secret Service. Every identified four counterfeit $20 and $50 bills that T J
Maxx had deposited with its bank, and three counterfeit bills seized by local police
at the SuperToad lounge which bore serial numbers identical to three of the bills
deposited by T J Maxx. Over defense counsel’s hearsay objection, Every then
testified that bills bearing those same serial numbers had also appeared in the Detroit
area and in other parts of Iowa in early November 2000. The district court ruled that
testimony limited “to the fact that the bills had been located in those locations” was
admissible under the business records exception to the hearsay rule. See FED. R.
EVID. 803(6).
II.
Brown first contends that the district court abused its discretion in allowing
Agent Every to testify that bills bearing the same serial numbers had appeared in
Detroit at the time in question, which prejudiced Brown because it tended to
corroborate a portion of Johnson’s incriminating testimony. Every testified that he
obtained this information by accessing a Secret Service computerized database. Each
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bill or note that comes into the agency’s possession is assigned a unique number. A
data entry employee then enters into the database the bill’s denomination and serial
number, and the date and location the agency obtained it. Local Secret Service field
agents routinely access this data to determine whether the serial number of a bill they
are investigating has previously appeared elsewhere in the country.
Brown argues that testimony regarding what Every learned from this database
was inadmissible hearsay because the data does not fall within the public records
exception to the hearsay rule. The public records exception provides in relevant part
that the following evidence is not excluded by the hearsay rule:
Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth . . . (B) matters observed pursuant to
duty imposed by law as to which matters there was a duty to report,
excluding, however, in criminal cases matters observed by police
officers and other law enforcement personnel . . . .
FED. R. EVID. 803(8)(B). Brown argues that the Secret Service database does not
qualify for this exception because it reflects “matters observed by police officers and
other law enforcement personnel.”
In United States v. Enterline, 894 F.2d 287 (8th Cir. 1990), we upheld the
admission of an F.B.I. agent’s testimony that certain motor vehicles appeared on a
law enforcement agency’s computer report of vehicles reported as stolen. We held
that the data in this report was admissible under Rule 803(8)(B), despite the Rule’s
exclusion of matters observed by law enforcement personnel. We distinguished this
motor vehicle report, which merely recorded the identification numbers of vehicles
reported stolen to the police, from “matters observed by the police at the scene of the
crime [which] are potentially unreliable since they are made in an adversary setting,
and are often subjective evaluations of whether a crime was committed.” 894 F.2d
at 290. Similarly, in United States v. Smith, 973 F.2d 603, 605 (8th Cir. 1992), we
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upheld the admission of police department computer printouts reflecting reported
robberies, and in United States v. Johnson, 722 F.2d 407, 410 (8th Cir. 1983), we
upheld the admissibility of a firearm serial number reported to the Bureau of Alcohol,
Tobacco and Firearms by the manufacturer. See also United States v. Orozco, 590
F.2d 789, 793-94 (9th Cir. 1979) (upholding admission of Treasury Department data
card reporting the license plate number of a vehicle crossing the United States border
with Mexico because this is objective data recorded in a non-adversarial setting).
We conclude that the district court’s ruling was consistent with these prior
cases. Though the data contained in the Secret Service database is initially gathered
by law enforcement officials, and very likely during the course of an investigation,
the data is routinely entered by computer data entry personnel. Significantly, Agent
Every’s testimony was limited to objective information in the database that was not
collected in anticipation of Brown’s trial -- the fact that bills of certain denominations
bearing specific serial numbers came into the agency’s possession at specific dates
and locations. Agent Every’s testimony did not include information that might have
reflected more subjective opinions of law enforcement investigators, such as whether
the bills obtained at these other locations were “counterfeit,” or whether they had
been unlawfully “passed.” In these circumstances, the district court did not abuse its
substantial evidentiary discretion when it overruled Brown’s objection to this
testimony. See Smith, 973 F.2d at 605 (standard of review).2
III.
At sentencing, the district court found that Brown’s involvement with Eric
Johnson made Brown “an organizer, leader or supervisor” of the criminal activity
within the meaning of U.S.S.G. § 3B1.1(c), warranting a two-level enhancement. To
2
We need not consider whether this testimony was also admissible under the
business records exception to the hearsay rule. See Orozco, 590 F.2d at 794 n.2.
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impose an enhancement for a defendant’s role in the offense, “a district court must
find at a minimum that the defendant directed or procured the aid of underlings.”
United States v. Encee, 256 F.3d 852, 854 (8th Cir. 2001). Relying upon United
States v. Rowley, 975 F.2d 1357, 1364 (8th Cir. 1992), Brown argues that the district
court clearly erred in imposing the enhancement because Brown did no more than
procure Johnson’s “passive acquiescence” in the wrongdoing and did not sufficiently
control Johnson to warrant the organizer enhancement.
Even if Brown did not control Johnson’s actions in accepting the counterfeit
bills as a T J Maxx clerk, we do not require proof of control “so long as the criminal
activity involves more than one participant and the defendant played a coordinating
or organizing role.” United States v. Mayer, 130 F.3d 338, 340 (8th Cir. 1997)
(quotation omitted). Here, Brown recruited Johnson’s assistance in advance and then
compensated Johnson after he accepted the counterfeit bills at his T J Maxx station.
The district court did not clearly err in finding that Brown’s involvement with
Johnson warranted imposing the two-level enhancement for organizing the criminal
activity. See Encee, 256 F.3d at 854 (standard of review).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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