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United States v. Petre

United States District Court, D. Maine

August 16, 2017

UNITED STATES OF AMERICA
v.
IULIAN PETRE, a/k/a JULIAN PETRE

          ORDER ON MOTION IN LIMINE

          JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.

         The Court declines to allow the Government to admit so-called business records into evidence at an upcoming jury trial by certificates of authenticity without the testimony of an appropriate records custodian because the Defendant has raised trustworthiness and Crawford / Cameron questions about the documents and their admissibility under the Sixth Amendment's Confrontation Clause.

         I. BACKGROUND

         A. Procedural History

         On June 20, 2017, a federal grand jury issued a seventeen count indictment against Iulian Petre for ten counts of receipt of a firearm in interstate commerce, alleged violations of 18 U.S.C. § 924(b), three counts of shipment of a firearm in foreign commerce, alleged violations of 18 U.S.C. § 924(b), three counts of promotion money laundering, alleged violations of 18 U.S.C. § 1956(a)(2), and one count of smuggling, an alleged violation of 18 U.S.C. § 554. Indictment (ECF No. 23). On July 12, 2017, a federal grand jury issued a second seventeen count indictment against Mr. Petre. Superseding Indictment (ECF No. 32). On July 13, 2017, the Court set the matter for jury trial with jury selection occurring on August 21, 2017 and trial to follow immediately thereafter. Notice of Hr'g (ECF No. 39). On August 9, 2017, a federal grand jury issued a second seventeen count superseding indictment. Second Superseding Indictment (ECF No. 63). On August 10, 2017, the Government moved to dismiss Count IX of the Second Superseding Indictment and on the same day, the Court granted the Government's motion, leaving sixteen counts pending against Mr. Petre. Gov't's Unopposed Mot. to Dismiss Count Nine (ECF No. 62); Order (ECF No. 66).

         On July 19, 2017, the Government filed a motion in limine for a ruling to permit it to use Federal Rule of Evidence 902(11) to authenticate records of several businesses. Mot. in Limine for a Ruling Permitting the Gov't to Utilize Fed. R. of Evid. 902(11) for the Authentication of Domestic Records of Regularly Conducted Activity (ECF No. 40) (Gov't's Mot.). On August 4, 2017, Mr. Petre filed a response. Def.'s Resp. to the Gov't's Mot. in Limine for a Ruling Permitting the Gov't to Utilize Fed. Rule of Evid. 902(11) for the Authentication of Domestic Records of Regularly Conducted Activity (ECF No. 55) (Def.'s Opp'n). On August 14, 2017, the Government filed its reply. Gov't's Reply to Def.'s Opp'n to Mot. in Limine for a Ruling Permitting the Gov't to Utilize Fed. R. of Evid. 902(11) for the Authentication of Domestic Records of Regularly Conducted Activity (ECF No. 73) (Gov't's Reply).

         B. Factual Background

         In its motion, the Government identifies the records of five businesses for which it has secured certificates of authenticity: (1) Maine Savings Federal Credit Union, (2) Yahoo!, Inc., (3) Google, Inc., (4) Gunbroker.com, LLC, and (5) United Parcel Service of America, Inc. (UPS). Gov't's Mot. at 1. The Government describes the Maine Savings records as banking records pertaining to Mr. Petre's monthly account statements and other account information, such as signature cards. Id. at 2. It describes the Yahoo! and Google records as subscriber information for Mr. Petre's email accounts with Yahoo! and Google as well as data concerning emails sent and received. Id. It describes Gunbroker.com as an online auction site for firearms, ammunition, and firearm accessories, showing Mr. Petre's purchase of firearms and information about the sellers of those firearms. Id. Finally, it describes the UPS records as containing information regarding shipments to the addresses that Mr. Petre allegedly used for his firearms activity. Id. at 2-3.

         II. THE PARTIES' POSITIONS

         A. The Government's Position

         Citing Rules of Evidence 803(6) and 902(11), the Government seeks a ruling in advance of trial concerning the admissibility of the business records of the listed companies, and it attaches to the motion, five certificates of authenticity that it previously provided Mr. Petre in discovery. Gov't's Mot. at 1. First, the Government argues that Federal Rules of Evidence 803(6) and 902(11) allow the admission of the business records upon certification. Id. at 3. Next, the Government addresses the Confrontation Clause issue that the United States Supreme Court highlighted in Crawford v. Washington, 541 U.S. 36 (2004). The Government contends that the Crawford Court and the First Circuit in United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) expressly exempted business records as non-testimonial and therefore outside these Confrontation Clause issues. Gov't's Mot. at 3-5.

         B. Iulian Petre's Opposition

         Mr. Petre objected to the admission of all of these records without the presence of the custodian. Def.'s Opp'n at 4-8. First, Mr. Petre asserts that, even if the documents meet the other requirements under Rules 803(6) and 902(11), they are not admissible because they are not trustworthy. Id.

         Next, although Mr. Petre acknowledges that most business records do not present Crawford's Confrontation Clause issues, the records should be excluded because they were compiled specifically for trial and therefore in this case are subject to a Crawford objection. Id. More specifically, Mr. Petre refers to United States v. Cameron, 699 F.3d 621 (1st Cir. 2012), in which the First Circuit concluded that reports generated by internet service providers were inadmissible as business records because they violated the Sixth Amendment's Confrontation ...


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