In United States v. Harper, No. 23-5091 (10th Cir. Oct. 3, 2024), the Tenth Circuit reverses the kidnapping conviction where the only record of an essential jurisdictional element was a verification letter generated shortly before trial that the panel holds cannot thereby stand as a business record under Fed. R. Evid. 803(6).
The defendant was tried as an Indian under the General Crimes Act, 18 U.S.C. § 1152. “According to the Act, Indian status is an essential element of offenses charged and not a mere technicality . . . . [T]he fact finder ‘must make factual findings that the defendant ‘(1) has some Indian blood; and (2) is recognized as an Indian by a tribe or by the federal government.’’” On this element, the United States often offers a Certificate of Degree of Indian Blood (CDIB) issued by the Bureau of Indian Affairs establishing that the defendant is an Indian. “Generally, a CDIB is a self-authenticating domestic public document and does not require extrinsic evidence of authenticity in order to be admitted as evidence because it is issued by the U.S. Department of the Interior and bears its seal.”
But during Harper’s trial, the United States instead offered “a letter from the Choctaw Nation of Oklahoma verifying Harper’s Indian status. The letter was on the letterhead of ‘Choctaw Nation of Oklahoma CDIB/Trial Membership,’ dated January 18, 2023, and signed by Terry Stephens, Director CDIB/Membership of the Choctaw Nation of Oklahoma . . . . The letter stated that Harper had a [CDIB] issued by the Bureau of Indian Affairs in 2002 and, since 2011, was an enrolled member of the Choctaw Nation of Oklahoma.” The letter was supported by through the testimony of the custodian Oakes, an employee at the Choctaw Nation of Oklahoma and manager of the CDIB and membership department.
The defendant was convicted and sentenced to life in prison.
The Tenth Circuit reverses based on the admission of that letter into evidence. “[T]he record makes it clear that the Government did not properly establish the verification letter’s foundation and trustworthiness under Rule 803(6).”
“Here, the Government attempted to cover its bases by including on the certificate of authenticity a declaration that the verification letter was a domestic business record and that the authentication satisfied both Rules 803(6) and 902(11). The Government counters that the district court did not abuse its discretion in admitting the verification letter because (1) the verification letter does not constitute inadmissible hearsay because it is derived from enrollment records kept in the normal and ordinary course of business per Rule 803(6), and (2) Oakes testified that (a) she had personal knowledge of the verification letter and the facts within it and (b) she personally prepared the certificate of authenticity that accompanied the verification letter.”
The panel first holds that the letter cannot be treated as a summary under Fed. R. Evid. 1006, i.e., “derived from enrollment records kept in the normal and ordinary course of business,” because “the Government fails to persuade this Court that the Choctaw Nation of Oklahoma’s tribal records were machine-generated and voluminous or that it could not present Harper’s CDIB as evidence.”
Neither was the verification letter itself admissible as a Fed. R. Evid. 830(6) business record because of the circumstances of its creation.
“The Government also cannot establish that the verification letter was created in the regular course of business and not for the purpose of litigation. Indeed, the letter was issued on January 18, 2023, and the trial commenced on February 6, 2023. Nor did Oakes’s testimony establish that the verification letter was a business record because her testimony was derivative of the letter itself, of which there was a preserved hearsay objection. Finally, Director Stephens was not present to testify at trial about the contents of the verification letter. At bottom, the district court abused its discretion in admitting the verification letter because the document was hearsay, not subject to any exception under the Federal Rules of Evidence, and not properly authenticated.”
Absent proof of Indian status, the prosecution fails. “This error was not harmless because, without the admission of this evidence, one jurisdictional element of each crime charged was lacking.” The case is remanded for further proceedings.
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