UNITED STATES of America, Appellee, v. Gary Anthony PATRICK, Appellant.
No. 90-3178.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 30, 1991. Decided March 17, 1992. As Amended March 17, 1992.
959 F.2d 991
In light of the requirements the Cable Act imposes, the Cable Definition Rule might raise First Amendment questions and it might pose problems under “fundamental rights” equal-protection scrutiny—questions, I agree with my colleagues, we need not now decide. But I think the statute does not pose serious constitutional problems under rational-basis review. The classifications in the cable definition provision, as I‘ve suggested, are reasonable in light of the Cable Act‘s purposes. In fact, given the variety and scope of the statute‘s purposes, I am confident the FCC will suggest justifications I have not mentioned.
I do not, finally, disagree with my colleagues’ decision to remand the case to the FCC so that it can provide justifications for the classifications in the statute. This is a complicated area, and the expert agency is certainly better equipped than the court to put the classifications in context. Unfortunately, when the FCC defended the Cable Definition Rule before us, it provided no explanations for the distinctions in the law. It chose not to reply to petitioners’ constitutional arguments, resting on its response that the challenges were not ripe. The Commission should have done more, and my colleagues are right to demand more. I only hope that my colleagues’ dicta about the merits of petitioners’ rational-basis claim reflect frustration with the FCC rather than a new approach to rational-basis review.
Nancy R. Page, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Kevin F. Flynn, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Opinion concurring in part and dissenting from the judgment filed by Circuit Judge SENTELLE.
KAREN LECRAFT HENDERSON, Circuit Judge:
Appellant Gary A. Patrick was convicted of possession with intent to distribute more than five grams of cocaine base (crack) in violation of
I.
On February 2, 1990, Patrick was arrested during a search by officers of the Metropolitan Police Department (MPD) of Apartment 103, 818 Chesapeake Street, S.E., Washington, D.C. Apartment 103 was a one bedroom apartment leased to Kevin Smith. Patrick had moved into the apartment without permission and had taken over the bedroom when Smith was hospitalized. He did not pay rent. He did, however, claim to have provided Smith with drugs.
After moving in, Patrick began to keep drugs and weapons in the apartment. Smith decided he wanted Patrick removed and spoke to a friend about the situation. The friend arranged for Smith to meet with MPD officers. During a meeting with the police on January 17, 1990, Smith signed a form authorizing the police to search his apartment. The form provided that “THIS PERMISSION IS GIVEN FOR NO LESS THAN TEN WORKING DAYS, AND GIVES THE MEMBERS OF THE METROPOLITAN POLICE DEPARTMENT PERMISSION TO ENTER MY PREMISES ANYTIME DAY OR NIGHT.”
The police did not conduct the search until shortly after midnight on February 2nd. At that time, the police went to Smith‘s apartment. They knocked and announced and were let in by Smith. Hearing that the police were at the door, Patrick ran to the bedroom. On entering the apartment, the police began to secure it and found, in addition to Smith, four people in the living room. They also noticed that the bedroom door was open. The police immediately proceeded to the bedroom to determine if anyone was in it and to secure it. The police found Patrick half on and half off the bed with his left hand underneath it. The police ordered Patrick to stand. When he did, the police discovered in plain view a large amount of money, a beeper and a clear plastic bag containing 17.19 grams of 33% crack cocaine. The police arrested Patrick.
The police then searched the bedroom. They found a gun under the bed near where Patrick‘s hand had been, a large number of tennis shoes, inside one of which was a bracelet bearing the name “Gary,” a television and a Circuit City sales receipt for a television set. The receipt bore both the serial and model numbers of the television found in the bedroom and indicated the name and address of the purchaser as “G.A. Patrick” of 818 Chesapeake Street, S.E. Apt 103, Washington, D.C., 20020. The police also found a triple beam scale in one of the apartment‘s closets bearing fingerprints which matched Patrick‘s.1
Thereafter, on March 1, 1990, Patrick was indicted for possession with intent to distribute over five grams of cocaine base (crack) in violation of
Smith consented to the search, that he did so voluntarily, that the consent was valid at the time of the search, that the officers entered the apartment after knocking and announcing, that they entered the bedroom in their efforts to secure the apartment for their own protection, that they asked the defendant to stand for their protection, and that the drugs and money were in plain view on the bed. The Court also finds that the officer‘s testimony concerning the drugs and money being in plain view is consistent with his testimony at the preliminary hearing.
Memorandum Order at 3.
On the eve of trial, the prosecutor notified Patrick that the fingerprints on the
Patrick‘s defense was that he was innocently present in the apartment and, when the police found him in the bedroom, he was actually cowering from them. In fact, other than the testimony of the police officers who conducted the search and found Patrick in the bedroom, there was no other trial testimony linking Patrick to the bedroom or the apartment for neither Smith nor any of the other persons found in the apartment testified.
During the trial, the prosecutor sought to introduce the television sales receipt over Patrick‘s hearsay objection. The trial court overruled the objection and admitted the receipt. Later, in its closing argument the government argued:
Take, for example, an argument that might be made that that‘s not his apartment, that he doesn‘t live there, and that‘s not his bedroom, that he doesn‘t stay in that bedroom.
Well, ladies and gentlemen, let‘s look at a couple of things that were taken out of that bedroom. Look at government‘s exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020.
Trial Transcript (Tr. T.) at 513. This reference was not the government‘s only use of
Finally, Patrick requested an instruction on the lesser included offense of simple possession of less than five grams of cocaine base. The district court refused to give the instruction. It did, however, give a lesser included offense instruction on simple possession of more than five grams of cocaine base.
The jury convicted Patrick of possession with intent to distribute more than five grams of crack and use of a firearm in relation to drug trafficking. Patrick now appeals on the following grounds: (1) the search of the bedroom violated Patrick‘s rights under the fourth amendment and
We begin by addressing the legality of the police search of the apartment. Although Patrick raises several distinct arguments, we find them all unpersuasive.
A.
While the police need not obtain a warrant nor have probable cause when they search pursuant to a valid consent, Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), nonetheless a consensual search must satisfy the fourth amendment‘s requirement of reasonableness. Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 1803 (1991); Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 2799 (1990).
Patrick first claims that the consent given here violated the fourth amendment because it was of indefinite duration. Whether or not an open-ended consent is in all instances lawful, an issue we do not decide, we are satisfied that this search did not violate the fourth amendment. Only twelve working days elapsed between Smith‘s execution of the consent form and the actual search. The form itself provided that the consent was valid for not less than ten working days; it did not specify when the consent was no longer valid. Given that the search occurred only two days after the minimum period for which it was to last, we would be straining to conclude that the search was unreasonable.7
B.
We next address Patrick‘s argument that he had an expectation of privacy in the bedroom and that Smith did not have authority to consent to a search of the bedroom. The district court did not expressly address these arguments in denying Patrick‘s suppression motion. As we read the district court‘s ruling, it relies on the officers’ lawful presence on the premises pursuant to consent, their authority to do a protective sweep once they were on the premises and their lawful seizure of the evidence under the plain view doctrine.
We first note that, even if Smith could not have consented to the search of Patrick‘s bedroom, he could, as lessee of the apartment, unquestionably give the police authority to search the rest of it. Once the police were lawfully on the premises, they were authorized to conduct a protective sweep based on their reasonable belief that one of its inhabitants was trafficking in narcotics. Cf. Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990) (during execution of arrest warrant, police authorized to do protective sweep of spaces in house where person posing danger to police could hide and launch attack if based on reasonable belief that area swept
Our review does not end here, however, for even when the police are validly on the premises, the plain view doctrine allows them to seize only that evidence whose incriminating character is “immediately apparent.” Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 2308 (1990). In other words, to seize evidence under the plain view doctrine, the police must have probable cause to believe that the item being seized is evidence of crime. See Arizona v. Hicks, 480 U.S. 321, 326 (1987).
We have no doubt that the police were authorized under the plain view doctrine to seize such items of evidence as the cocaine, the money and the beeper. See, e.g., United States v. Holliman, 923 F.2d 873, 880 (D.C.Cir.1991); see also United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.), cert. denied, 502 U.S. 896 (1991); United States v. Richards, 937 F.2d 1287, 1292 (7th Cir. 1991); United States v. Turner, 933 F.2d 240, 244 (4th Cir. 1991); United States v. Wright, 932 F.2d 868, 878 (10th Cir.), cert. denied, 502 U.S. 962 (1991); United States v. Curtis, 931 F.2d 1011, 1013 (4th Cir.), cert. denied, 502 U.S. 881 (1991). Moreover, their observation of these items gave the police probable cause to arrest Patrick, incident to which they could search those areas “within his immediate control” at the time. See Chimel v. California, 395 U.S. 752, 763 (1969). Thus, on finding Patrick half on and half off the bed, the police properly searched under it and seized the gun. We also believe that the sales receipt and the television were properly seized because the record manifests that they were in plain view and their incriminating character (in that they tended to prove Patrick‘s dominion over the bedroom) was “immediately apparent.” Horton, 110 S.Ct. at 2308. On the other hand, it seems unlikely that the “Gary” bracelet found inside one of the many sneakers in the room was in plain view and the record does not show that it was. Nevertheless, the bracelet evidence need not have been suppressed if another basis (such as consent) supports its seizure. Cf. Thigpen v. Roberts, 468 U.S. 27, 30 (1984); United States v. New York Tel. Co., 434 U.S. 159, 166 n. 8 (1977). Accordingly, we examine whether Smith could validly consent to the search of the bedroom.
We begin by assuming, without deciding, that Patrick had “a reasonable expectation of privacy” in the bedroom. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). But Patrick‘s reasonable expectation of privacy allows him to clear only the first of three hurdles he must clear to suppress the evidence. The remaining hurdles require that Patrick show not only that Smith did not have common authority over the bedroom, see United States v. Matlock, 415 U.S. 164, 171 (1974), but also that the facts available to the police at the time of entry would not “‘warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, 2801 (1990) (quoting Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Because Patrick cannot show that Smith was not authorized to give consent, Patrick cannot clear the second hurdle and we do not reach the third one.8
[c]ommon authority ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
415 U.S. at 171 n. 7. Patrick argues that Smith did not have the authority to consent as evidenced by his testimony at the suppression hearing that he did not use the bedroom and was not free to go into Patrick‘s belongings. In our view, this argument gets Patrick only so far because it ignores the “assumption of the risk” approach adopted in Matlock. Indeed, as the Seventh Circuit recently noted:
The underpinning of third-party consent is assumption of risk. One who shares a house or room or auto with another understands that the partner may invite strangers—that his privacy is not absolute, but contingent in large measure on the decisions of another. Decisions of either person define the extent of the privacy involved, a principle that does not depend on whether the stranger welcomed into the house turns out to be an agent or another drug dealer.
United States v. Chaidez, 919 F.2d 1193, 1202 (7th Cir. 1990), cert. denied, 501 U.S. 1234 (1991). We think that the “assumption of the risk” approach is particularly helpful in analyzing the facts of this case. Patrick moved into Smith‘s apartment without Smith‘s permission. He stayed on despite Smith‘s having asked him to leave. Thus, Patrick‘s privacy was not absolute but contingent on any action Smith might take. Chaidez, 919 F.2d at 1202. Under these circumstances, we think it is fair to conclude that Patrick assumed the risk that Smith would call on others to assist him in evicting Patrick. We therefore conclude that Smith was authorized to consent to the search of the bedroom and, accordingly, we reject Patrick‘s fourth amendment claim.
C.
Finally we turn to Patrick‘s claim that the evidence should have been suppressed because the police violated the knock and announce requirements of
First, as we have previously held, a consensual entry is not subject to the requirements of section 3109. See United States v. Sheard, 473 F.2d 139, 143 (D.C.Cir.1972), cert. denied, 412 U.S. 943 (1973). Moreover, section 3109 requires the police to knock and announce only if they proceed to break open a door or window after having
Under the circumstances here, we have little difficulty concluding that the police acted properly in entering the apartment. The search was conducted not pursuant to a warrant but rather with Smith‘s consent. Moreover, the record reveals that the police did not break open any of the apartment‘s doors or windows to gain admittance. When viewed in the light most favorable to the government, the evidence suggests instead that Smith opened the apartment door and let the police in. Finally, the police had been informed that Patrick kept both narcotics and weapons in the apartment. Under such dangerous circumstances, the police must necessarily act in a speedy fashion both to protect themselves and to prevent the destruction of evidence; we will not require them “to meet with delicate exactitude the requirements of § 3109.” Harris, 435 F.2d at 83.
We also reject Patrick‘s argument that the police were required to knock and announce before they entered the bedroom. Not only is this argument based on a questionable view of the law, see, e.g., United States v. Remigio, 767 F.2d 730, 732 n. 2 (10th Cir. 1985) (“Once law enforcement officials enter a house, they need not always comply with the knock and announce statute before entering every other closed door within the residence.“), cert. denied, 474 U.S. 1009 (1985); United States v. Crawford, 657 F.2d 1041, 1044-45 (9th Cir. 1981) (once police announced at front door, they were not required to do so again before entering bedroom), it is also contradicted by the district court‘s finding that “the bedroom door was open.”10 Memorandum Order at 3.
III.
We next address Patrick‘s contention that the district court erred when it admitted over his hearsay objection the television sales receipt found in the bedroom. Hearsay is an oral or written statement “other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted.”
First we consider Patrick‘s name and the use of it to show that an item belonging to Patrick was found in the same bedroom where the cocaine and weapon were found. We have no difficulty in concluding that, when used for this purpose, the receipt did not constitute hearsay because it was not offered to prove the truth of any statement. Cf. United States v. Mazyak, 650 F.2d 788, 792 (5th Cir. Unit B July 1981) (letter found on board vessel smuggling narcotics addressed to defendants properly admitted not to prove truth of matters asserted in letter but to link defendants to vessel and each other), cert. denied, 455 U.S. 922 (1982); United States v. Arrington, 618 F.2d 1119, 1126 (5th Cir. 1980) (utility bills
The prosecution, however, did not limit its use of the receipt to Patrick‘s name but also relied on the address on the receipt to establish Patrick‘s guilt. During closing argument, the prosecutor stated:
Take, for example, an argument that might be made that that‘s not his apartment, that he doesn‘t live there, and that‘s not his bedroom, that he doesn‘t stay in that bedroom.
Well, ladies and gentlemen, let‘s look at a couple of things that were taken out of that bedroom. Look at government‘s exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020.
Tr.T. at 513. The receipt so used constituted a statement, namely Patrick lived at 818 Chesapeake Street, Southeast, and that statement indisputably was hearsay. Unlike the use of the name on the receipt to show that an item belonging to Patrick was found in the bedroom, the prosecutor published Patrick‘s address as it appeared on the receipt to prove the truth of the matter asserted, that is, the address of Patrick‘s residence.12 Cf. United States v. Lieberman, 637 F.2d 95, 100-01 (2d Cir. 1980) (hotel registration card bearing individual‘s name and address not admissible to prove individual had stayed at hotel).13
Having concluded that the address constituted hearsay, we must determine whether its use was proper under one of the hearsay exceptions contained in rule 803. The strongest case for allowing the address to be used as it was is that it was part of a record of regularly conducted activity under
Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decisions. (Citations omitted) ... The rule follows this lead in requiring an informant with knowledge acting in the course of the regularly conducted activity.
Notes of Advisory Committee On 1972 Proposed Rules (emphasis added).
We do not read the rule so literally as to require that the person transmitting the information must himself be under a business duty to provide accurate information. Rather, we find that the approach taken by both the Second Circuit and the Seventh Circuit in cases involving the admission of hotel registration records represents a sound accommodation of a defendant‘s right to ensure that his conviction is not based on unreliable information and society‘s right to ascertain the truth. See United States v. Zapata, 871 F.2d 616, 625 (7th Cir. 1989); United States v. Lieberman, 637 F.2d 95, 100-01 (2d Cir. 1980).
In Zapata, the Seventh Circuit affirmed the district court‘s admission of hotel guest registration records under rule 803(6) to prove that the defendant had stayed in the hotel. 871 F.2d at 625. Zapata had argued that because the registration forms were filled out by the guests rather than the hotel employees, they were unreliable. Id. The Seventh Circuit rejected this argument noting that “the key to satisfying Rule 803(6) in this context is whether the employee was ‘able in some way to verify the information provided—for example, by examining a credit card, driver‘s license, or other form of identification.‘” Id. (quoting Lieberman, 637 F.2d at 101). Because the hotel‘s executive assistant manager testified that it was a “standard practice” to verify the information provided by a registering guest, the court in Zapata held that the records were admissible. In Lieberman, the Second Circuit adopted a similar approach. See 637 F.2d at 101 (“[I]f verification is obtained by the employee, we see no reason why the guest card that has been filled in by the guest himself would not qualify as a business record and thus be admissible for the truth of its statements.“).
We think the reasoning of Zapata and Lieberman applies to our facts. Accordingly, in deciding whether the receipt was properly admitted, we do not require that Patrick be under a business duty to provide the information. Rather, it is sufficient if it is shown that Circuit City‘s standard practice was to verify the information provided by a customer. Because we do not know if this was the case, we conclude that
Finally, we consider the serial and model numbers on the receipt. In closing argument, the government used the television serial and model numbers on the receipt to link Patrick to the television found in the bedroom, arguing “That TV receipt bears a serial number, a model number. I ask you, if you so desire, ask for government‘s exhibit 12, the television set ... You‘ll see it appears on government‘s exhibit No. 1, [indicating it was found] in the bedroom.” Tr.T. at 513. Again the receipt so used constituted a statement, namely Patrick purchased the television found in the bedroom, and was hearsay because it was offered to prove the truth of that statement. See United States v. Watkins, 519 F.2d 294, 296-97 (D.C.Cir.1975) (rent receipt inadmissible hearsay to prove defendant paid rent); see also United States v. Jefferson, 925 F.2d 1242, 1251-53 (10th Cir.) (bill for pager inadmissible hearsay when offered to prove defendant had bought pager), cert. denied, 502 U.S. 884 (1991); United States v. Markopoulos, 848 F.2d 1036, 1038-39 (10th Cir. 1988) (rental car contract inadmissible hearsay when offered to prove defendant had rented car containing contraband); Federal Deposit Ins. Corp. v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir. 1986) (receipt for money orders inadmissible hearsay to prove mortgage payments).
We need not repeat the reasons that this use of the receipt was improper. Without more reliable evidence that it was Patrick who bought the television, such as evidence that Circuit City‘s standard practice was to verify the names provided by customers, we conclude that the district court erred in allowing the receipt to be used for this purpose.
Our finding of error does not end our inquiry because we must decide whether the error was harmless. See
The government argues that the error was harmless because of Patrick‘s presence in the bedroom at the time of the search, the many pairs of tennis shoes in the bedroom as well as the “Gary” bracelet found inside one of them, “the fact that [Patrick] was sufficiently knowledgeable about where objects in the bedroom were placed to be making movements under the bed toward a .38-caliber revolver,” and, finally, that “[t]he jury [had] also learned that Kevin Smith was the apartment lessee and had consented to a search to remove evidence, including guns, ammunition, narcotics and narcotics proceeds, from Smith‘s apartment.” Brief of United States at 26.
We find the government‘s recitation of the evidence supporting its claim of harmless error less than persuasive. We agree that Patrick‘s presence as well as the location of the “Gary” bracelet in the bedroom are probative of Patrick‘s dominion and control of the bedroom. But our review of the record reveals that the evidence that Patrick was reaching for a gun is equivocal at best. Although one of the police officers testified that, when he entered the bedroom, Patrick was kneeling alongside the bed with his left arm underneath it, see Tr.T. at 348 (testimony of Sergeant Smith), the other officer testified that when Patrick was “against the bed, his right arm was underneath his body, I couldn‘t see his hand at all, and his left arm was down near his side, I could not see it at that time at all.” Id. at 214 (testimony of Detective Curley). While the jury could have drawn from Sergeant Smith‘s testimony the infer-
We also fail to see how the evidence that Smith was the apartment lessee and had consented to the search is probative of Patrick‘s possession of the contraband found in the bedroom. We know from our review of the suppression hearing transcript that the most probative evidence of all, evidence which would have removed any doubt as to Patrick‘s dominion and control over the bedroom, was Smith‘s testimony. But the government did not call Smith at trial. Therefore, we cannot rely on his testimony in conducting our harmless error analysis.
While we cannot consider Smith‘s suppression hearing testimony, we must nonetheless consider the entire record. We also must consider that, apart from the erroneous use of the receipt to prove both Patrick‘s address and his purchase of the television, the receipt, when properly redacted, was admissible for the non-hearsay purpose of showing that a document bearing Patrick‘s name was recovered from the bedroom. See Arrington, 618 F.2d at 1126; cf. United States v. McCollum, 732 F.2d 1419, 1424 (9th Cir.) (erroneous admission of conviction under rule 609 harmless when evidence could have been admitted under rule 404(b)), cert. denied, 469 U.S. 920 (1984); United States v. Mehrmanesh, 689 F.2d 822, 831 n. 10 (9th Cir. 1982) (same). Nevertheless, we are not satisfied that the error that occurred here did not have a “substantial influence” on the jury, especially in view of the otherwise thin trial evidence against Patrick. Kotteakos, 328 U.S. at 765. Moreover, the fact that the prosecutor made more than one reference to the receipt in his closing argument reinforces our conclusion that the error was not harmless.
In summary, we affirm the district court‘s denial of Patrick‘s motion to suppress. Because we find that the use of the sales receipt at trial was erroneous and that the error was not harmless, we reverse the judgment of conviction and order a new trial.15
It is so ordered.
SENTELLE, Circuit Judge, concurring in part and dissenting from the judgment:
While I completely concur in the opinion of the Court as to the motion to suppress, I respectfully dissent from the Court‘s conclusion that the television receipt was improperly admitted into evidence, and therefore, I dissent from the judgment reversing Patrick‘s conviction. In my view, the receipt was not offered as hearsay, and therefore did not need to come within any exception to the hearsay rule.
The Federal Rules of Evidence codify a classic definition of hearsay. “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
In the case at bar, the receipt is a statement that Patrick paid for the television set found in the bedroom. The government did not offer the receipt for the purpose of proving the truth of that statement. It is in fact immaterial to the government‘s cause whether he paid for the set or not. The receipt is offered not for the truth of the statement which it constitutes, but
In this use, therefore, the receipt is not like the rent receipt offered in Watkins for the truth of its stated contents, but rather like the letter considered by the Fifth Circuit in United States v. Mazyak, 650 F.2d 788 (5th Cir. 1981). In that case involving charges of marijuana smuggling, the circuit held that the district court had properly admitted a letter addressed to all four defendants referencing their “precious cargo.” The circuit ruled that the letter was not hearsay because it was not introduced to prove the truth of the matter asserted, but rather “that the appellants were associated with each other and the boat.” Id. at 792. Similarly the receipt in the present case was offered not to prove the truth of the matter asserted (the payment of the bill), but rather the association of the defendant, the television set, and the apartment.
Likewise, in United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980), the district court admitted utility bills directed to the defendant and found in the search of a home as evidence of his residence in that home. The circuit court dismissed the hearsay challenge to that evidence, stating that “[t]he bills were not proffered to prove the truth of their contents and accordingly were admissible.” Id. at 1126.
Likewise, in the present case, it is immaterial to the value of the evidence whether Patrick actually paid for the television as stated in the receipt, fabricated the receipt in order to cheat someone out of the television, or grabbed the television set and ran while the Circuit City employee was making up the receipt. The probative force of the evidence remains the same. It connects Patrick with the set and with the apartment in which it and the receipt were found.
If there is any problem with the admission of the evidence, it is not one of hearsay, but of document authentication. And in fact, I submit there is no problem there either, for two reasons. First, document authentication under the Rules of Evidence is a liberal matter. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
At bottom, however, I do not really suppose that the document required authentication at all. Again, even if the defendant forged it, the finding of that document bearing the contents it bore under the circumstances under which it was found was relevant to the point it was offered to prove. That being the case, I see no error, let alone one of reversible magnitude. Therefore, I respectfully dissent.
KAREN LECRAFT HENDERSON
UNITED STATES CIRCUIT JUDGE