United States v. Khatallah
Criminal No. 2014-0141
| D.D.C. | Sep 28, 2017Background
- FBI obtained Libyana telephone call data records (CDRs) linked to defendant Ahmed Abu Khatallah and sought to admit them at trial as business records under Fed. R. Evid. 803(6).
- FBI agents met Libyana CEO Mohamed Ben Ayad abroad in January 2017; Ayad reviewed hard copies, certified the records, and later provided an additional written certification under penalty of Libyan law (July 18, 2017).
- Ayad is a Libyana founder/executive, testified about Libyana’s recordkeeping practices, and identified Libyana-specific number prefixes used by the records.
- The records included entries corroborated by other evidence (e.g., calls the defendant acknowledged), and the government relied on 18 U.S.C. § 3505 to admit foreign business records via Ayad’s certification.
- Defendant challenged admissibility on grounds of (1) Ayad’s bias and inability to compare entries to corrupted 2012 originals, (2) alleged indicia of format discrepancies and possible fabrication, (3) government’s alleged failure to provide timely written notice under § 3505(b), and (4) Confrontation Clause concerns.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Abu Khatallah) | Held |
|---|---|---|---|
| Whether Ayad’s foreign certification satisfies 18 U.S.C. § 3505 / Fed. R. Evid. 803(6) foundation | Ayad is a qualified person (founder/executive) who swore the records were made and kept in the ordinary course and thus satisfies § 3505 and Rule 803(6) foundation | Ayad is biased and could not access 2012 originals to verify line-by-line accuracy, so certification is unreliable | Court: Ayad is a qualified person; certification satisfies § 3505(a) and thereby the Rule 803(6) foundation (admitted) |
| Whether the records are trustworthy (method/circumstances) | Records bear indicia of reliability: Libyana-specific prefixes, corroborating calls, no evidence of post-obtainment manipulation | Formatting discrepancies and data corruption indicate lack of trustworthiness and possible fabrication | Court: Government made prima facie showing; defendant failed to prove untrustworthiness by preponderance; trustworthiness established |
| Whether government’s delay in written notice under § 3505(b) requires exclusion | Government asserts delay was due to difficulties obtaining certification and that notice (and actual records) were provided as soon as practicable; defense had long been aware of records | Failure to give timely written notice (arraignment or soon after) warrants exclusion or sanctions | Court: § 3505(b) noncompliance does not automatically bar admission; no prejudice shown (defense had the records and long knew of intent), so exclusion not warranted |
| Whether admission violates the Confrontation Clause | Business records are non‑testimonial and thus do not implicate confrontation | Argues testimonial nature or need for in-court cross of declarant | Court: Records were prepared for business administration, not for trial; admission does not violate Confrontation Clause |
Key Cases Cited
- United States v. Addchinti, 510 F.3d 319 (D.C. Cir.) (qualified custodian need not have created document; familiar with recordkeeping suffices)
- United States v. Fahnbulleh, 752 F.3d 470 (D.C. Cir.) (Rule 803(6) analysis and qualification of witness)
- United States v. Baker, 458 F.3d 513 (6th Cir.) (witness must explain recordkeeping procedures to qualify)
- United States v. Smith, 804 F.3d 724 (5th Cir.) (custodian need not personally attest to each entry’s accuracy)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (business/public records are generally non‑testimonial and do not trigger Confrontation Clause concerns)
- United States v. Ross, 33 F.3d 1507 (11th Cir.) (statutory and Rule 803(6) trustworthiness principles applied to business records)