GERALD E. ROSEN, Chief Judge.
Defendant Kemepaudor Ekiyor is charged in a December 16, 2014 indictment with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii), and one count of importation of cocaine in violation of 21 U.S.C. §§ 952 and 960(b)(1)(B). These charges stem from allegations that as Defendant was traveling in September of 2014 from Nigeria to his home in Ottawa, Canada, with connections in Amsterdam and at the Detroit Metropolitan Airport, federal law enforcement agents at the Detroit airport discovered more than six kilograms of cocaine in a locked suitcase that Defendant allegedly checked at the gate before boarding his September 26, 2014 flight from Amsterdam to Detroit.
As part of its proofs at trial, the Government has proposed to introduce a set of documents that it has designated as Exhibit 26. The last page of this proposed exhibit is a log of baggage transactions, which purports to list the tag number and weight of each piece of luggage that Defendant checked for the Nigeria-to-Amsterdam and Amsterdam-to-Detroit legs of his trip.
In seeking to introduce its Exhibit 26 at Defendant's trial, the Government relies on the hearsay exception for business records set forth in Fed.R.Evid. 803(6), arguing that the baggage log contained within this exhibit qualifies as a record made and kept in the course of the regularly conducted activity of the business entity that generated the log, KLM Royal Dutch Airlines.
In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), however, the Supreme Court overruled the reliability standard articulated in Ohio v. Roberts, and instead held that the admissibility of an out-of-court statement under the Confrontation Clause turns upon whether the statement is "testimonial." In particular, the Court emphasized that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Crawford, 541 U.S. at 68-69, 124 S.Ct. at 1374. Although the Court declined to "spell out a comprehensive definition of `testimonial,'" and although Crawford itself provided no occasion for the Court to consider whether business records might fall within or out-side this definition,
In two of its post-Crawford decisions, the Supreme Court has more directly addressed the circumstances under which business records are testimonial, and thus trigger the constitutional guarantee of confrontation. First, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308-09, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009), a state prosecutor sought to introduce three sworn "certificates of analysis" reporting the results of forensic tests showing that a substance seized by the police during the petitioner's arrest was cocaine, and the Massachusetts courts allowed the admission of these certificates without requiring the laboratory analysts who performed the forensic tests to testify in person at the petitioner's trial. The Supreme Court reversed, reasoning that the certificates made the factual assertion "that the substance found in the possession of [the petitioner] and his codefendants was, as the prosecutor claimed, cocaine," and concluding that the certificates therefore were testimonial because they were "functionally identical to live, in-court testimony" by the laboratory analysts stating the results of their forensic tests. Melendez-Diaz, 557 U.S. at 310-11, 129 S.Ct. at 2532.
In so ruling, the Court addressed (and rejected) the argument of the respondent Commonwealth of Massachusetts that the certificates executed by the lab analysts should be "admissible without confrontation because they are akin to the types of official and business records admissible at common law." 557 U.S. at 321, 129 S.Ct. at 2538. The Court first disagreed that the certificates "qualify as traditional official or business records," but then emphasized that "even if they did, their authors would be subject to confrontation nonetheless." 557 U.S. at 321, 129 S.Ct. at 2538. The Court explained:
557 U.S. at 324, 129 S.Ct. at 2539-40.
Similarly, in its more recent decision in Bullcoming v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705, 2709-10, 180 L.Ed.2d 610 (2011), the Supreme Court again addressed the admissibility of a forensic laboratory analysis — this time reporting the results of a blood-alcohol test performed on a blood sample drawn from the petitioner after a vehicle he was driving rear-ended a pickup truck. As in Melendez-Diaz, the prosecutor introduced the lab report into evidence at the petitioner's trial, but in this case the prosecution also offered the testimony of "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on [the petitioner's] blood sample." Bullcoming, 131 S.Ct. at 2709-10. Consistent with the ruling in Melendez-Diaz, the New Mexico Supreme Court recognized that the blood-alcohol analysis was testimonial and therefore triggered the right of confrontation, but the state court nonetheless concluded that the live testimony of another analyst who had not performed the test on the petitioner's blood sample was sufficient to meet the dictates of the Confrontation Clause. See Bullcoming, 131 S.Ct. at 2710.
The Supreme Court reversed, holding that the "surrogate testimony" of another analyst did not provide the right of confrontation guaranteed under the Sixth Amendment. 131 S.Ct. at 2710. Although the New Mexico court reasoned that the testimony of another analyst was sufficient because the analyst who had actually performed the blood-alcohol test, Curtis Caylor, had "simply transcribed the result generated by the gas chromatograph machine, presenting no interpretation and exercising no independent judgment," 131 S.Ct. at 2714 (internal quotation marks, alteration, and citation omitted), the Supreme Court disagreed with this characterization of the lab report:
131 S.Ct. at 2714 (internal quotation marks, alterations, and citations omitted). Neither did the Court accept the assertion of the respondent State of New Mexico that Caylor's statements in his report should be treated as nontestimonial because "they were simply observations of an independent scientist made according to a
Finally, while the Supreme Court has returned more recently to the question of the admissibility of a lab report over a Confrontation Clause challenge, this latest decision cannot be said to provide further clarity on this issue. In Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 2227-28, 183 L.Ed.2d 89 (2012), a closely-divided Court held that an expert witness called by the prosecution at the petitioner's criminal trial on rape charges was properly allowed to testify, over a Confrontation Clause challenge, that "a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner's blood." A four-Justice plurality held that the expert's testimony was admissible on two grounds. First, the plurality reasoned that the expert's references to statements in the Cellmark DNA report were "not offered for their truth," but rather "solely for the purpose of explaining the assumptions on which" the expert had based her opinions. Williams, 132 S.Ct. at 2228 (Alito, J., plurality opinion). Next, the plurality explained that even if the Cellmark report had been admitted into evidence, it could not be deemed testimonial, where (i) Cellmark's DNA analysis "was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose," and (ii) the report was "not inherently inculpatory," but "[o]n the contrary" was "evidence that tends to exculpate all but one of the more than 7 billion people in the world today." 132 S.Ct. at 2228 (Alito, J.). Justice Thomas concurred in the plurality's conclusion that the testimony of the prosecutor's expert did not run afoul of the Confrontation Clause through its references to out-of-court statements in the Cellmark report, but he did so on the separate ground that "Cellmark's statements lacked the requisite formality and solemnity to be considered `testimonial' for purposes of the Confrontation Clause." 132 S.Ct. at 2255 (Thomas, J., concurring in the judgment).
Consequently, while a majority of Supreme Court Justices agreed that the Cellmark lab report was admissible over a Confrontation Clause challenge, there was no such agreement or common ground on a legal basis for this ruling. See United States v. Duron-Caldera, 737 F.3d 988, 994-95 n. 4 (5th Cir.2013) (observing that there is no "common denominator between the plurality opinion and Justice Thomas's concurring opinion" in Williams, such that it would be possible to derive a "holding" in the case from the "narrowest grounds" shared by the Justices who concurred in the judgment (internal quotation marks and citation omitted)). To the contrary, while the plurality found that the prosecution expert did not refer to the Cellmark report "for the purpose of proving the truth of" any matter asserted in the report, Williams, 132 S.Ct. at 2236 (Alito, J.), Justice Thomas opined that "there was no plausible reason for the introduction of Cellmark's statements other than to establish their truth," 132 S.Ct. at 2256 (Thomas, J., concurring in the judgment). Likewise, the plurality concluded that the Cellmark report was not testimonial because it "was not prepared for the primary purpose of accusing a targeted individual," 132 S.Ct. at 2243 (Alito, J.), but Justice Thomas strenuously objected to the plurality's "primary purpose" test for determining whether an out-of-court statement is testimonial, stating that it "lacks any grounding in constitutional text, in
In sum, Williams sheds little (if any) light on this Court's inquiry whether the purported business records offered by the Government in this case are properly characterized as "testimonial" within the meaning of Crawford and its progeny. A majority of Justices in Williams concluded that the Cellmark report was not testimonial, but this majority failed to "settle on a reason why." Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting). Indeed, the dissenters observed that "[f]ive Justices specifically reject every aspect of [the plurality's] reasoning and every paragraph of its explication." 132 S.Ct. at 2265 (Kagan, J., dissenting). As will become evident below, however, the Court need not devote any further efforts to cracking the code of Williams, because the Government's proposed Exhibit 26 runs afoul of more basic and well-settled evidentiary principles established under Rule 803(6), and also is readily characterized as testimonial under any reasonable reading of the relevant Supreme Court and Sixth Circuit precedents handed down in the wake of Crawford.
As observed earlier, the Government contends that its proposed Exhibit 26 — and, in particular, the log of baggage transactions that is found at the fourth and final page of this exhibit — is eligible for admission at Defendant's trial as a business record under Rule 803(6). In support of this theory of admissibility, the Government has produced a "Certificate of Authenticity of Business Records" executed by Robert Putters, a security manager for KLM Royal Dutch Airlines, stating that the baggage transaction log in question is a copy of a record that was (i) "made at or near the time of the occurrence of the matters set forth therein, by (or from information transmitted by) a person with knowledge of those matters," (ii) "kept in the course of regularly conducted business activity," and (iii) "made by the said business activity as a regular practice." (See Gov't Proposed Ex. 26 at 2, Certificate of Authenticity.) These statements, of course, precisely track the requirements set forth at subsections (A) through (C) of Rule 803(6) for the admission of a business record.
As matters now stand, however, the Government has not provided a sufficient foundation for concluding that the baggage log qualifies as a business record under Rule 803(6). While the "Certificate of Authenticity" executed by Mr. Putters states that the baggage log is a true copy of a record that was created "at or near the
To be sure, if the Government's proposed exhibit could accurately be characterized as a computer printout that merely reproduces a selected subset of data from underlying, electronically stored business records, the case law indicates that such a printout could qualify as a business record, even though it was created expressly for use in the prosecution of Defendant. In United States v. Nixon, 694 F.3d 623, 634-35 (6th Cir.2012), the Sixth Circuit held that a spreadsheet disclosing the defendant's records from her "ProPay" account (a PayPal-like service) qualified as a non-hearsay business record under Rule 803(6), despite the fact that this spreadsheet was created specifically for use at the defendant's trial in response to a government subpoena. In so ruling, the court observed that all of the information in the spreadsheet was obtained from an underlying electronic database that ProPay "created and kept in the regular course and practice of [its] business operations," and it reasoned that the mere reproduction of this electronic data in a "structured and comprehensible form" did not alter the business-record nature of the underlying data. Nixon, 694 F.3d at 634-35;
Yet, while the reasoning in Nixon provides a potential path to admissibility for the baggage log here, the Government has
Apart from the Government's failure to furnish an evidentiary basis for concluding that its proposed Exhibit 26 qualifies as a business record under Rule 803(6),
If the Government were able to show that its proposed exhibit qualifies as a business record under Rule 803(6), this would go a long way toward overcoming Defendant's Confrontation Clause challenge. As noted earlier, the Supreme Court explained in Melendez-Diaz, 557 U.S. at 323-24, 129 S.Ct. at 2539-40, that business records ordinarily are "not testimonial" because they are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial." On the other hand, the Supreme Court has emphasized that evidence "prepared specifically for use at... trial" generally is deemed testimonial under the Confrontation Clause. Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. at 2540. In light of the Court's conclusion above that the baggage log in proposed Exhibit 26 does not qualify as a business record, in part because it was prepared specifically for use in Defendant's trial, the Government faces an uphill battle in demonstrating that the baggage log is not testimonial in nature.
In United States v. Maga, 475 Fed. Appx. 538 (6th Cir.2012), the Sixth Circuit addressed circumstances similar to those presented here. In that case, the prosecution
The baggage log offered by the Government here triggers precisely the concern addressed in Maga, and thus is properly characterized as testimonial. Although, as discussed, the Government has not offered any testimony or other evidence shedding light on the underlying database of baggage-related data maintained by KLM in the course of its regular operations, the baggage log seemingly goes beyond a mere copy of this data and makes the affirmative representations (i) that certain bags were linked to Defendant during his travels from Nigeria to Amsterdam and then to Detroit, and (ii) that one bag attributed to Defendant, in particular — the bag later found to contain six bundles of suspected cocaine — was checked as "hand luggage at the gate" before Delta Flight 251 departed from Amsterdam to Detroit. (Gov't Proposed Ex. 26 at 4.) Indeed, the baggage log concludes with the statement that "according to the Bag[] manager," there were four suitcases loaded onto Flight 251 that were attributable to Defendant. (Id.) To the extent that the baggage log is offered to forge a link between Defendant and certain bags checked on the flights he took between Nigeria and Detroit, the Government must show that the information in the log that supports this finding is derived solely from "raw, machine produced data" gathered and maintained by KLM in the course of its regular business activity, and is devoid of "representations... relating to past events and human actions" that are drawn from the underlying data through some combination of interpretation and analysis. Bullcoming, 131 S.Ct. at 2714. As discussed, however,
In this evidentiary vacuum, Defendant surely is entitled to question the basis for the Government's apparent assertion, made through its proposed introduction of the baggage log, that it was
For the reasons stated in open court on March 3, 2015, as supplemented by the rulings set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant's objections to the introduction of the Government's proposed Exhibit 26 are SUSTAINED, and this proposed exhibit therefore is EXCLUDED from the evidence at Defendant's trial.
18 U.S.C. § 3505(a)(1). Because the criteria for admissibility under this statute are precisely the same as those set forth in Rule 803(6), the Court will refer to this Rule and the cases applying it in the remainder of this opinion.
