Paul W. NIPPER, Jr.; R. Bruce Ford, individually, and as a
Beneficiary of the Profit Sharing Plan and Pension Plan of
Psychiatric Associates, P.A.; Jeffrey R. Mellom; M. P.
Norungolo, Plaintiffs-Appellees,
v.
John T. "Ted" SNIPES, Defendant-Appellant, and Diane K.
Snipes; Financial Services Advisory,
Incorporated, Defendants.
No. 92-1371.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 3, 1992.
Decided Oct. 21, 1993.
Larry Dean Estridge, Wyche, Burgess, Freeman & Parham, P.A., Greenville, SC, argued for defendants-appellants.
John Patrick Freeman, Columbia, SC, argued (James R. Gilreath, Greenville, SC, on brief), for plaintiffs-appelleеs.
Before ERVIN, Chief Judge, and WIDENER and NIEMEYER, Circuit Judges.
OPINION
WIDENER, Circuit Judge:
This case presents the question of whether judicial findings of fact entered in state court in a different case involving some of the same parties were properly admitted into evidence by the district court. Because we are of opinion that the district court abused its discretion in admitting the evidence, we vacate the judgment of the district court and remand for a new trial.
I.
This controversy arises out of the civil jury trial of John T. "Ted" Snipes аnd Diane Snipes on causes of action related to the sale of limited partnership interests in real estate partnerships. The causes of aсtion presented to the jury for its decision included breach of fiduciary duty, common law fraud, civil RICO violations, constructive fraud, and civil conspiracy. The jury found Mrs. Sniрes innocent of any wrongdoing, but held her husband liable on the breach of fiduciary duty and common law fraud causes of action.
During the course of the trial, counsel for the plaintiffs1 introduced into evidence, over defendants' objection, Plaintiff's Exhibit 20, an order entered in the Court of Common Pleas of Greenville County, South Carolina in a case concerning a different rеal estate partnership and in which Nipper was a plaintiff and Ted Snipes was a defendant. The order included South Carolina Circuit Judge Frank P. McGowan, Jr.'s findings of fаct in the case. Portions of the findings of fact were read to the jury by plaintiffs' counsel during the direct examination of plaintiff Nipper. The portions of Judge MсGowan's order that plaintiffs' counsel read to the jury repeatedly referred to factual findings of misrepresentations made by Ted Snipes, Snipes's failure tо disclose material information, and Snipes's participation in a civil conspiracy, as well as findings that Mrs. Snipes had knowingly filed false affidavits in the case.
Plаintiffs' counsel justifies the introduction of the order by stating that he needed it to establish an ongoing conspiracy for the civil conspiracy causes of aсtion. At the end of the direct examination of Nipper, the district court instructed the jury that the order was admitted only for the purpose of showing a conspiracy involving Ted Snipes, and the court reminded the jurors of the limiting instruction during the jury charge. The jury found for the defendants on the conspiracy causes of action.
On аppeal, Snipes argues that, although the civil conspiracy causes of action were found in his favor, the order was inadmissible hearsay, and the admissiоn of the order into evidence and its publication to the jury caused unfair prejudice to him and resulted in his liability on the breach of fiduciary duty and common law frаud causes of action.2 Plaintiffs argue that the order fits within the public records exception of Rule 803(8)(C) of the Federal Rules of Evidence.
II.
We note at the оutset that Judge McGowan's order, as used in the context of this case, is hearsay evidence, under Fed.R.Evid. 801(c), which is not admissible unless it falls within one of the exceptiоns mentioned in the Federal Rules of Evidence, see Fed.R.Evid. 802. Rule 803 provides:
The following are not excluded by the hearsay rule, even though the declarant is avаilable as a witness:
....
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agenciеs, setting forth ... (C) in civil actions and proceedings ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or othеr circumstances indicate lack of trustworthiness.
Fed.R.Evid. 803(8)(C). Plaintiffs argue that the order properly was admitted as a public record or report under Rule 803(8)(C). Plaintiffs devote much of their argument to an attempt to show that defendant did not make a showing that the record was not sufficiently trustworthy or authentic. Plaintiffs' arguments assume, hоwever, the very issue in this case, which is whether the order is admissible in any event under Rule 803(8)(C).
Rule 803(8)(C), on its face, does not apply to judicial findings of fact; it applies tо "factual findings resulting from an investigation made pursuant to authority granted by law." Fed.R.Evid. 803(8)(C). A judge in a civil trial is not an investigator, rather a judge. In fact, a review of the advisory committee note to Rule 803 makes plain that the drafters intended this portion of the rule to relate to findings of agencies and offices of the executivе branch. See Advisory Committee's Note,
We note that at common law a judgment from another case would not be admitted. 5 John H. Wigmore, Wigmore on Evidence § 1671a (James H. Chadbourn rеv. 1974); 1 McCormick on Evidence § 298 (John W. Strong ed., 4th ed. 1992); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(22) (1993). We also note that when the drafters of the Federal Rules of Evidence wanted to allow the admission of judgments or their underlying facts, they did so expressly. See Fed.R.Evid. 803(22) (previous conviction); Fed.R.Evid. 803(23) (personal history, etc., boundаries). Therefore, we can find no basis on which to imply that Rule 803(8)(C) applies to judicial findings of fact.
Further, our decision comports with sound judicial policy. In cirсumstances similar to those in this case such evidence should be excluded under Fed.R.Evid. 403. This is because judicial findings of fact "present a rare case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice." Zenith,
Plaintiffs argue that the error the district court made in admitting the order was, in any event, harmless. We do not agree. The same concerns about a jury's ability to refrain from placing great weight on a judge's findings apply equally in determining whether the error was harmless. It is true that the district court tried to limit the prejudicial effect of the order by giving limiting instructions. However, the order read to the jury repeatedly referred to factual findings of fraud on the part of Snipes as well as finding that his conduct amounted to a breach of fiduciary duty, and that he failed to disclose serious financial irregularities. Although we may, as we frequently do, credit the jury with following instructions, in a case such as this one in which the naturе of the inadmissible evidence is so flagrantly prejudicial, we cannot say that the error was harmless. Therefore, we reject that argument.
III.
We are of оpinion that judicial findings of fact are not public records within the meaning of Rule 803(8)(C) of the Federal Rules of Evidence and therefore hold that the district court abused its discretion in admitting Judge McGowan's findings of fact at trial.
Accordingly, we vacate the judgment of the district court and remand for a new trial.
VACATED AND REMANDED.
Notes
To avoid confusion wе will refer to the appellant and appellees as defendant and plaintiffs, respectively. We also note that there was an additional defеndant, Mrs. Snipes, in both the state trial and the district court trial; accordingly, when appropriate we may refer to Ted Snipes and Mrs. Snipes collectively as defendants
Snipes also raises two other issues in his appeal concerning the jury charges. Because of our disposition of his claim with respect to evidence, we do not reach these issues