United States v. Weiland ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30091
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00070-EFS
WILLIAM WEILAND,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
March 8, 2005—Seattle, Washington
Filed August 24, 2005
Before: Ferdinand F. Fernandez, A. Wallace Tashima, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould;
Dissent by Judge Tashima
11307
11312 UNITED STATES v. WEILAND
COUNSEL
Stephen R. Hormel, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for the defendant-appellant.
James A. McDevitt, United States Attorney, Stephanie J. Lis-
ter, Assistant United States Attorney, Spokane, Washington,
for the plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Defendant-Appellant William Weiland appeals his convic-
tion and sentence for one count of possessing two firearms
and ammunition as a convicted felon, in violation of 18
U.S.C. § 922(g)(1), and one count of forfeiture, pursuant to 18
U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Weiland argues: 1)
that Federal Rule of Criminal Procedure 41(b) requires sup-
pression of the firearms and ammunition seized during a
search of his home because the warrant that authorized the
search was not requested by a “federal law enforcement offi-
cer” or an “attorney for the government;” 2) that records of
his four Oklahoma Second Degree Burglary convictions
should be excluded under Federal Rules of Evidence 802 and
901(a), 28 U.S.C. § 1738, and the Confrontation Clause of the
Sixth Amendment; 3) that the admission of four convictions
to prove Weiland’s status as a felon when only one was
required was unduly prejudicial under Federal Rule of Evi-
UNITED STATES v. WEILAND 11313
dence 403; 4) that the government did not establish that his
convictions for Oklahoma Second Degree Burglary met the
definition of “generic burglary” under Taylor v. United States,
495 U.S. 575, 599 (1990); 5) that Weiland’s 188-month sen-
tence under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e), violated his Sixth Amendment right to a jury trial;
and 6) that the district court abused its discretion in denying
a downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm the district court.
I
On February 19, 2003, Spokane County Sheriff’s Office
Detective Michael D. Ricketts applied for and received a fed-
eral search warrant from a United States magistrate judge for
the home of William Weiland at 42313 North Sherman Road
in Spokane County, Washington. When he applied for the
warrant, Ricketts had a “Special Deputation Appointment”
from the U.S. Marshals Service permitting him, “under
authority delegated by the Attorney General, to perform the
duties of the Office of Special Deputy United States Marshal
as directed by an appropriate official of the United States
Marshals Service or some other appropriate Federal Official
as so designated.” The appointment indicated that the Bureau
of Alcohol Tobacco and Firearms (ATF) was Ricketts’s spon-
soring agency and specifically authorized Ricketts “[t]o seek
and execute arrest and search warrants supporting a federal
task force.” The appointment further stated that Ricketts was
“[n]ot authorized to participate in federal drug investigations
unless also deputized by DEA or FBI” and that the special
deputation did not constitute formal employment by a federal
agency.
Later that afternoon, law enforcement officers executed the
search warrant for Weiland’s property and seized a 9 mm
HiPoint Rifle, a .22 caliber Winchester rifle, ammunition, a
small marijuana grow, and computer files that contained child
11314 UNITED STATES v. WEILAND
pornography. The government subsequently charged Weiland
with possessing firearms and ammunition as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), and forfeiture of
the firearms and ammunition, pursuant to 18 U.S.C. § 924(d)
and 28 U.S.C. § 2461(c). The indictment also gave notice of
the government’s intent to pursue enhanced sentencing under
the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Before trial, Weiland moved to suppress the firearms found
in his house, arguing that the warrant affidavit completed by
Ricketts was defective because his deputation as a Special
Deputy United States Marshal did not make Ricketts a “fed-
eral law enforcement officer” within the meaning of Federal
Rules of Criminal Procedure 41(b) and 41(a)(2)(C). In the
suppression hearing, Weiland called Ricketts, and Ricketts
testified that, with the assistance of his secretary, he person-
ally prepared the warrant affidavit based upon information
received from other sheriff’s deputies.1 Ricketts then notified
the Drug Enforcement Agency (DEA) and ATF Special Agent
Darrell Bone that he planned to apply for a federal warrant,
but no one from either agency assisted him in drafting the
warrant affidavit. Ricketts, however, did present the warrant
affidavit to Assistant U.S. Attorney Tom Rice, who reviewed
it, made minor changes, and initialed it “TOR.” Someone
from the U.S. Attorney’s office notified the magistrate that
Ricketts would be coming with a warrant application.
At the suppression hearing, Ricketts stated that he under-
stood that the purpose of his special deputation was to “sup-
port the ATF office in their investigations and to conduct
investigations involving federal firearms violations . . . [t]o
obtain search warrants, to be able to be obtain [sic] search
warrants and execute arrest warrants.” Although Ricketts
1
Before the grand jury, Ricketts testified that he had received informa-
tion from special agents of the ATF and other federal and state officials.
Ricketts also testified that the purpose of his warrant affidavit was to
search for marijuana, firearms, and child pornography.
UNITED STATES v. WEILAND 11315
could have gotten a state search warrant, he testified that he
chose to apply for a federal warrant because of the high prob-
ability that the case would be referred to the U.S. Attorney for
federal prosecution. Ricketts also testified that, in his view,
his investigation was primarily regarding federal firearms vio-
lations that fell within ATF jurisdiction, rather than mainly
concerning federal drug crimes. After the hearing, the district
court denied the motion to suppress, holding: 1) that Ricketts
did not violate Rule 41(b) because he was acting pursuant to
his special deputation, and 2) that even if Ricketts had vio-
lated the Rule, suppression would not be warranted.
Before trial, the government submitted a memorandum on
the admissibility of “penitentiary packets.” The “penitentiary
packet” relating to Weiland contained four unredacted Okla-
homa Second Degree Burglary convictions, fingerprints from
Weiland, a photograph of Weiland, and a facsimile transmittal
from Paula Menifee at the Offender Records office to the
Oklahoma State Bureau of Investigation (OSBI) requesting
“any fingerprints, photographs, and rap sheets” on Weiland.
In addition, the packet contained an official certification
which stated:
I, RICHARD E. GREENE hereby certify: I am the
manager of the Offender Records Unit, of the Okla-
homa Department of Corrections, the agency having
jurisdiction over all adult correctional facilities of
the state of Oklahoma; that in my legal custody as
such officer, are the original files and records of per-
sons heretofore committed to the Department of Cor-
rections; that the 1) fingerprint card, 2) photograph,
and 3) commitment documents attached are copies
of the original records of persons heretofore commit-
ted to said Department of Corrections, and who
served a term of incarceration/supervision therein;
that I have compared the foregoing and attached cop-
ies with their respective originals now on file in my
11316 UNITED STATES v. WEILAND
office and each thereof contains and is a full, true,
and correct copy from its said original.
Accompanying Greene’s declaration was a certificate under
seal from the Secretary of State of the State of Oklahoma
attesting that Richard E. Greene was the Manager, Offender
Records Unit of the Oklahoma Department of Corrections,
that Greene was authorized to sign the attached certificate,
and that Greene’s signature on the certificate was genuine.
The defendant submitted a memorandum opposing the admis-
sion of the “penitentiary packet” on the first day of the trial.
At trial, the government moved to admit the documents in
the “penitentiary packet” as self-authenticating public records
pursuant to Federal Rule of Evidence 902(4) and as hearsay
subject to the exception for public records and reports pursu-
ant to Rule 803(8). Weiland objected, and the district court
sustained the objection, ruling that the “penitentiary packet”
was not sufficiently reliable and was thus inadmissible
because the facsimile from Paula Menifee to the OSBI sug-
gested that the records were not in fact in the custody of
Greene.
Following this ruling, the government then attempted to
authenticate the “penitentiary packet” and four other certified
copies of the Oklahoma convictions as records of a regularly
conducted activity pursuant to Rule 902(11) and argued that
they were subject to the business records hearsay exception in
Rule 803(6). As foundation for the business records excep-
tion, the government provided a blank form and said that it
would be filled out by Nancy A. Young, Administrative Pro-
grams Officer, OSBI. Weiland objected on the basis that he
had not received notice of the government’s intent to authenti-
cate the “penitentiary packet” and certified convictions as
business records and that the admission of these documents
would violate his right to confront and cross-examine Young.
The district court overruled the objection and conditionally
admitted both the “penitentiary packet” and the certified
UNITED STATES v. WEILAND 11317
records of conviction pending the receipt of Young’s affida-
vit. The completed affidavit arrived immediately before the
case went to the jury, and contained a statement from Young
stating that the records were made by a person with first-hand
knowledge in the course of a regularly conducted activity.
The district court then unconditionally admitted all four of the
certified convictions and the “penitentiary packet” into evi-
dence.
Weiland further objected to the admission of multiple Okla-
homa Second Degree Burglary convictions, arguing that,
because the government needed to prove only one conviction
to establish his status as a felon, the admission of the second,
third, and fourth convictions was more prejudicial than proba-
tive in violation of Rule 403. The district court overruled the
objection and admitted all four convictions without redacting
them. The district court did, however, instruct the jury that the
Oklahoma records had “been admitted for a limited purpose”
and that the jury should “consider them only in determining
whether the government ha[d] met its burden of proving the
elements of the crime charged in the Superceding Indict-
ment.” The district court further instructed the jury that it
should “not consider a prior conviction as evidence of guilt of
the crimes for which the Defendant is now on trial, other than
as to proof of one of the elements of those crimes.” The jury
convicted Weiland of possessing a firearm as a convicted
felon, in violation of § 922(g)(1).
At sentencing, the government presented both a Judgment
and Sentence on Plea of Guilty and an Information for each
of the four Oklahoma Second Degree Burglary convictions.
The four Informations detailed burglaries that occurred during
a one-week Oklahoma crime spree in January 1976. Each
Information provided that Weiland had forcibly entered a
building with the intent to take unlawfully the personal prop-
erty of another. The district court ruled that these documents
established that Weiland had been convicted of a crime that
met the elements of generic burglary under the modified cate-
11318 UNITED STATES v. WEILAND
gorical approach. Based upon the four Oklahoma Second
Degree Burglary convictions, the district court sentenced
Weiland to 188 months imprisonment pursuant to the Armed
Career Criminal Act, 18 U.S.C. § 924(e). The district court
also denied Weiland’s motion for a downward adjustment for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
Weiland timely appeals his conviction and sentence.
II
Weiland argues that the firearms seized pursuant to the fed-
eral search warrant should be suppressed as the fruits of a vio-
lation of Federal Rule of Criminal Procedure 41(b) because
Ricketts was neither a “federal law enforcement officer” nor
an “attorney for the government” at the time that he applied
for the warrant.2 To prevail on his motion to suppress, Wei-
land must demonstrate that: A) Ricketts made a “request” for
a federal search warrant and was not then a “federal law
enforcement officer,” and B) any assumed violation of Rule
41(b) rose to the level of a constitutional violation, resulted in
prejudice to Weiland, or was the result of intentional and
deliberate disregard of Rule 41. United States v. Johnson, 641
F.2d 652, 655-57 (9th Cir. 1980).
A
[1] Ordinarily, a state law enforcement official violates
Rule 41 by applying for and obtaining a federal search war-
rant. Id. at 656; Luk, 859 F.2d at 673. Rule 41 directs that a
warrant may issue only “[a]t the request of a federal law
enforcement officer or an attorney for the government,” FED.
R. CRIM. P. 41(b), and defines a “federal law enforcement
officer” as “a government agent (other than an attorney for the
government) who is engaged in enforcing the criminal laws
2
We review de novo whether a person requesting a warrant is a “federal
law enforcement officer.” See United States v. Luk, 859 F.2d 667, 670 (9th
Cir. 1988).
UNITED STATES v. WEILAND 11319
and is within any category of officers authorized by the Attor-
ney General to request a search warrant.” FED. R. CRIM. P.
41(a)(2)(C). The government argues that, at the time Ricketts
applied for the federal warrant to search Weiland’s home, he
was a “federal law enforcement officer” by reason of his posi-
tion as a Special Deputy U.S. Marshal and that, in any event,
it was the U.S. Attorney, and not Ricketts, who made the “re-
quest” for a federal search warrant.3
[2] There is no direct precedent in our circuit regarding
whether a state or local law enforcement official becomes a
“federal law enforcement officer” for Rule 41 purposes by
reason of a deputation as a Special Deputy U.S. Marshal. We
have, however, in the context of a criminal prosecution for
assaulting a federal officer, held that a state official specially
deputized as a U.S. Marshal was an “officer . . . of the United
States” within the meaning of 18 U.S.C. § 111 even though he
was not a federal “employee” within related provisions of the
United States Code. United States v. Diamond, 53 F.3d 249,
251-52 (9th Cir. 1995); see also United States v. Bryant, 117
F.3d 1464, 1467-69 (D.C. Cir. 1997) (holding that a state law
enforcement agent was subject to criminal sanction for imper-
sonating a federal officer when that agent falsely claimed to
be a Special Deputy U.S. Marshal). We thus consider as a
matter of first impression whether, for Rule 41 purposes, a
deputation as a Special Deputy U.S. Marshal confers “federal
law enforcement officer” status on a state law enforcement
official, and we hold that it does.
[3] Ricketts’s position as a Special Deputy U.S. Marshal
made him a “federal law enforcement officer” within the
meaning of Rule 41. The statutes and regulations give the
Marshals authority to deputize local law enforcement officers
to perform the functions of Deputy U.S. Marshals, 28 U.S.C.
3
Because we hold that Ricketts was a “federal law enforcement officer”
within the meaning of Rule 41, we do not reach the question whether the
U.S. Attorney, Ricketts, or both “requested” the warrant.
11320 UNITED STATES v. WEILAND
§ 566(c); 28 C.F.R. § 0.112, and U.S. Marshals have long had
the authority to seek and execute federal search warrants, 28
U.S.C. §§ 564, 566. When Ricketts applied for the warrant,
his affidavit indicated that he authored the warrant affidavit in
his capacity as a Special Deputy U.S. Marshal, not in his
capacity as a local law enforcement official. As such, Ricketts
was a “government agent . . . engaged in enforcing the crimi-
nal laws” as authorized by the Attorney General, and his
request for a warrant did not violate Rule 41. FED. R. CRIM.
P. 41(a)(2)(C).4
B
[4] Even if we were to conclude that Ricketts was not a
“federal law enforcement officer” and that a Rule 41 violation
occurred, suppression of the firearms and ammunition seized
during the search of Weiland’s home would not be warranted.
As we recently held in United States v. Martinez-Garcia:
Suppression of evidence obtained through a search
that violates Federal Rule of Criminal Procedure 41
is required only if: 1) the violation rises to a ‘consti-
tutional magnitude;’ 2) the defendant was preju-
diced, in the sense that the search would not have
occurred or would not have been so abrasive if law
enforcement had followed the Rule; or 3) officers
acted in ‘intentional and deliberate disregard’ of a
provision in the Rule.
397 F.3d 1205, 1213 (9th Cir. 2005) (quoting United States
v. Crawford, 657 F.2d 1041, 1047 (9th Cir. 1981)); Johnson,
641 F.2d at 656.
4
Our holding will increase the degree of reliability in the warrant sys-
tem. When state officials seek and execute search warrants in their capac-
ity as specially deputized federal law enforcement officers, they will be
subject to the same Rule 41 and other standards as all other federal law
enforcement officers. Rea v. United States, 350 U.S. 214, 217 (1956)
(“The obligation of the federal agent is to obey the Rules.”).
UNITED STATES v. WEILAND 11321
[5] None of these factors is present here. First, Weiland
does not — and could not — contend that Ricketts violated
the Fourth Amendment by applying for a search warrant in his
role as a state law enforcement officer deputized as a Special
Deputy U.S. Marshal. Second, there is no evidence that Wei-
land was prejudiced by Ricketts’s decision to apply for a fed-
eral, rather than state, search warrant. The search of
Weiland’s home almost surely would have proceeded as it did
absent any assumed Rule 41 violation: Ricketts testified
expressly that he could have gotten a state search warrant, but
elected not to do so because of the probability that this case
would be referred to the office of the U.S. Attorney. Third,
the record reflects that neither Ricketts nor any other law
enforcement officer acted in “intentional and deliberate disre-
gard” of Rule 41. Martinez-Garcia, 397 F.3d at 1213 (quoting
Crawford, 657 F.2d at 1047). Ricketts had an appointment as
a Special Deputy U.S. Marshal that authorized him “[t]o seek
and execute arrest and search warrants supporting a federal
task force,” and, at the suppression hearing, Ricketts testified
that he believed that he was authorized to seek search war-
rants. Ricketts also presented the warrant affidavit to an
Assistant U.S. Attorney, and notified both ATF Agent Bone
and the DEA that he planned to apply for a federal search
warrant for Weiland’s home. We hold that Ricketts did not act
in intentional and deliberate disregard of Rule 41. The district
court correctly concluded that, even assuming a violation of
Rule 41, suppression of the firearm and ammunition seized
during the search of Weiland’s home would be unwarranted.
III
Weiland contends that the records of four Oklahoma Sec-
ond Degree Burglary convictions, the fingerprints and the
photograph contained in the “penitentiary packet” were inad-
missible under Federal Rules of Evidence 901(a), 902, 802
and 803 and that these documents were received into evidence
in violation of 28 U.S.C. § 1738 and the Confrontation Clause.5
5
As a threshold issue, the government argues that Weiland was pre-
cluded from objecting to the admissibility of the convictions at trial and
11322 UNITED STATES v. WEILAND
We consider the arguments based on authentication, hearsay,
§ 1738, and the Confrontation Clause in turn.
A
Weiland argues that the fingerprints, photograph and four
records of conviction for Oklahoma Second Degree Burglary
were not properly authenticated, as required by Federal Rule
of Evidence 901(a).6 The government counters that the
records were self-authenticating under Rules 902(4) and
902(2), governing certified copies of public records, and Rule
902(11), governing certified domestic records of regularly
conducted activity. Although we reject the argument that the
records of conviction were self-authenticating under Rule
902(11), we agree that the records of conviction were self-
authenticating under Rules 902(4) and 902(2).
[6] With respect to Rule 902(11), the documents in the
“penitentiary packet” were not properly authenticated under
the exception for certified domestic records of regularly con-
ducted activity for three reasons. First, a party may not cir-
cumvent the requirements for the authentication of public
records outlined in Rule 902(4) by invoking Rule 902(11).
Rule 902(4), not Rule 902(11), describes the manner for
establishing the authenticity of public records. Second, the
plain language of Rule 902(11) requires that:
was required to raise these issues in a pretrial suppression motion. The dis-
trict court rejected this argument, and we agree with its analysis. In gen-
eral, it is permissible to raise an evidentiary objection to an exhibit at the
time it is offered for admission.
6
When, as here, the issue of proper authentication involves a significant
question of fact, we review for abuse of discretion a district court decision
to admit evidence as properly authenticated. United States v. Mateo-
Mendez, 215 F.3d 1039, 1041-42 (9th Cir. 2000). We review de novo a
district court interpretation of an authentication rule. Id.
UNITED STATES v. WEILAND 11323
A party intending to offer a record into evidence
under this paragraph must provide written notice of
that intention to all adverse parties, and must make
the record and declaration available for inspection
sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to
challenge them.
In this case, it is undisputed that the government never pro-
vided written notice to Weiland of its intention to offer the
records of conviction as self-authenticating under Rule
902(11) and that the government did not make Young’s decla-
ration available for inspection until after its conditional intro-
duction into evidence.7 Such lack of notice violates both the
letter and the spirit of Rule 902(11) and provides the party
opposing admission with substantially no opportunity to ver-
ify the authenticity of either the records or any foundational
testimony or affidavits. Finally, even if the government could
have circumvented the requirements of Rule 902(4) by invok-
ing Rule 902(11), the certification provided by Young, which
was neither under seal pursuant to Rule 902(1) nor itself certi-
fied as authentic by an official with a seal pursuant to Rule
902(2), was not sufficient to provide proof of the authenticity
7
The government maintains that it should be excused from its nearly
complete failure to comply with the plain language of Rule 902(11)
because Weiland did not make a pretrial motion to suppress the convic-
tions contained in the “penitentiary packet.” This argument lacks merit.
Rule 902(11) does not contain an exception to the notice requirement for
cause shown — good or otherwise. Also, Weiland objected to the offer of
the photograph, the fingerprints, the convictions and their certification at
an appropriate time: when the government offered that exhibit at trial. The
government, no less than any other litigant, is required to ensure that evi-
dence it intends to offer is admissible, to anticipate objections from oppos-
ing parties, and to comply with the Federal Rules of Evidence. A
defendant is not required to give the prosecution advance notice of his or
her intent to object for lack of proper authentication or violation of the
prohibition on hearsay; indeed, in many cases, due to the inability com-
pletely to foresee foundational testimony, such an advance objection
would be impossible.
11324 UNITED STATES v. WEILAND
of the records of conviction, the fingerprints, and the photo-
graph, which we again emphasize were public records that fall
within Rule 902(4). Accordingly, we hold that the district
court erred in grounding the admission of the “penitentiary
packet” and certified convictions on Rule 902(11).
[7] Nevertheless, although the district court erred in admit-
ting the contents of the “penitentiary packet” under Rule
902(11), we hold that the records were properly authenticated
because the documents in the “penitentiary packet” were self-
authenticating public records admissible under Rules 902(2)
and 902(4).8 Mateo-Mendez, 215 F.3d at 1044-45; United
States v. Huffhines, 967 F.2d 314, 320 (9th Cir. 1992). Federal
Rule of Evidence 902(4) provides for the self-authentication
of:
A copy of . . . a document authorized by law to be
recorded or filed and actually recorded or filed in a
public office, including data compilations in any
form, certified as correct by the custodian or other
person authorized to make the certification, by certif-
icate complying with paragraph (1), (2), or (3) of this
rule or complying with any Act of Congress or rule
prescribed by the Supreme Court pursuant to statu-
tory authority.
FED. R. EVID. 902(4).
[8] The records of conviction, the photograph of Weiland,
and his fingerprints fall within the self-authentication provi-
sions of Rule 902(2). Pursuant to Rule 902(4), the records
were certified as correct by Greene, who also stated that he
8
Although we hold that the district court erred in admitting the “peniten-
tiary packet” as a self-authenticating business record pursuant to Rule
902(11), we may affirm the district court if the records were properly
authenticated under any other provision. See United States v. Loyola-
Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997).
UNITED STATES v. WEILAND 11325
was the legal custodian of the records and that he had com-
pared the certified copies to their originals. Pursuant to Rule
902(2), the Secretary of State of the State of Oklahoma, under
seal, certified that Greene was authorized to execute the cer-
tificate and that Greene’s signature was genuine. This suffices
to establish that the records were what they purported to be,
fulfilling the purpose of our inquiry into the authentication of
the documents in the “penitentiary packet.” FED. R. EVID.
901(a).
[8] The facsimile included in the “penitentiary packet,”
apparently from Greene’s office to Paula Menifee in the
OSBI, does not change our analysis. The relevant inquiry is
whether Greene had the records in his legal custody or was an
“other person authorized to make the certification,” not
whether the records were stored in his personal physical cus-
tody. FED. R. EVID. 902(4); United States v. Combs, 762 F.2d
1343, 1348 (9th Cir. 1985); see also Yaich v. United States,
283 F.2d 613, 617 (9th Cir. 1960). If Greene had the records
in his legal custody and certified that they were accurate in
compliance with Rule 902(1), 902(2), or 902(3), they were
properly authenticated under Rule 902(4). No provision of the
Federal Rules of Evidence requires that Greene also be shown
to have kept the records in his physical custody at all times,
so long as the records were “actually recorded or filed in a
public office.” FED. R. EVID. 902(4). Federal Rule of Civil
Procedure 44(a)(1), incorporated into Federal Rule of Crimi-
nal Procedure 27, accords with our analysis. FED. R. CIV. P.
44(a)(1) (“An official record kept within . . . any state . . . may
be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record
. . . and accompanied by a certificate that such officer has the
custody. The certificate . . . may be made by any public offi-
cer having a seal of office and having official duties in the
district or political subdivision in which the record is kept,
authenticated by the seal of the officer’s office.”). Moreover,
even if Greene were not the official custodian of the records
contained in the “penitentiary packet,” the affidavit, under
11326 UNITED STATES v. WEILAND
seal, provided by the Secretary of State of the State of Okla-
homa, establishes that Greene was a “person authorized to
make the certification.” FED. R. EVID. 902(4). We hold that
the records contained in the “penitentiary packet” were self-
authenticating public records under Rules 902(4) and 902(2).
B
Weiland next maintains that, even if properly authenticated,
the documents contained in the “penitentiary packet” should
have been excluded as inadmissible hearsay pursuant to Fed-
eral Rule of Evidence 802.9 The government responds that the
convictions are admissible under the hearsay exceptions enun-
ciated in Rules 803(6), 803(8), and 803(22) and that the fin-
gerprints and photograph are admissible under Rules 803(6)
and 803(8).
[9] We begin by rejecting the argument that the convic-
tions, fingerprints and photograph were properly admitted
pursuant to the business records hearsay exception in Rule
803(6). The law of this circuit has long established that public
records, including records of conviction, must be admitted, if
at all, under Rule 803(8), or, in some cases, under a specific
hearsay rule, such as Rule 803(22), governing the admission
of prior convictions. United States v. Orellana-Blanco, 294
F.3d 1143, 1149 (9th Cir. 2002); United States v. Pena-
Gutierrez, 222 F.3d 1080, 1086-87 (9th Cir. 2000) (citing
United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979)).
The government may not circumvent the specific require-
ments of Rule 803(8) by seeking to admit public records as
business records under Rule 803(6). Nor may the government
attempt to combine Rules 803(6) and 803(8) into a hybrid rule
to excuse its failure to comply with either. See United States
9
We review de novo a district court construction of a hearsay rule, and
we review for an abuse of discretion a district court decision to admit evi-
dence under a hearsay exception. United States v. Hernandez-Herrera,
273 F.3d 1213, 1217 (9th Cir. 2001).
UNITED STATES v. WEILAND 11327
v. Doyle, 130 F.3d 523, 547 (2d Cir. 1997). Also, as we previ-
ously discussed in Part III.A., the government failed to
authenticate properly the documents in the “penitentiary pack-
et” under Rule 902(11) and did not authenticate the affidavit
of Nancy Young. Excluding the improperly admitted Young
affidavit, the government has presented no evidence to estab-
lish that the convictions, fingerprints and photograph fall
within the scope of Rule 803(6), and the district court erred
in admitting these documents on that ground.
[10] Because the district court erred in holding that the doc-
uments in the “penitentiary packet” and the certified convic-
tions were admissible as records of regularly conducted
activity under Rule 803(6), we next turn to the question of
whether the convictions, photograph and fingerprints are
admissible under any other hearsay exception. Loyola-
Dominguez, 125 F.3d at 1318. First, with respect to the docu-
ments titled “Judgment and Sentence on Plea of Guilty” only,
we hold that these records are evidence of previous convic-
tions that are independently admissible under Rule 803(22).
See United States v. Dancy, 861 F.2d 77, 79 (5th Cir. 1988)
(per curiam). Second, with respect to the fingerprints and pho-
tograph contained in the “penitentiary packet,” we conclude
that these documents are public records of routine and nonad-
versarial matters that fall within Rule 803(8)(B), and were
admissible thereunder. Orellana-Blanco, 294 F.3d at 1150;
United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir.
1986). The fingerprints and photograph do not contain infor-
mation akin to “ ‘police officers’ reports of their contempora-
neous observations of crime’ ” that might be biased by the
adversarial nature of the report. Orozco, 590 F.2d at 794
(quoting United States v. Grady, 544 F.2d 598, 604 (2d Cir.
1976)). To the contrary, fingerprinting and photographing a
suspect, and cataloguing a judgment and sentence are the
types of routine and unambiguous matters to which the public
records hearsay exception in Rule 803(8)(B) is designed to
apply. Orellana-Blanco, 294 F.3d at 1150 (citing a judgment
as an example of a document that falls within Rule 803(8));
11328 UNITED STATES v. WEILAND
Pena-Gutierrez, 222 F.3d at 1086-87; United States v. Gil-
bert, 774 F.2d 962, 965 (9th Cir. 1985) (per curiam) (holding
that notations on a fingerprint card fall within Rule 803(8));
United States v. Wilson, 690 F.2d 1267, 1275-76 (9th Cir.
1982). In addition, we hold that “the sources of the informa-
tion or other circumstances” in this case do not “indicate lack
of trustworthiness.” FED. R. EVID. 803(8). There is no allega-
tion here that any document in the “penitentiary packet” is
factually inaccurate, and, further, there is no reason to think
that persons making routine court and prison records in Okla-
homa have either motive or opportunity to fabricate or falsify
these documents. Orozco, 590 F.2d at 794; see also Chesa-
peake & Del. Canal Co. v. United States, 250 U.S. 123, 128-
29 (1919). We hold that the relevant contents of the “peniten-
tiary packet,” including the documents titled “Judgment and
Sentence on Plea of Guilty,” the fingerprints, and the photo-
graph, were properly admitted pursuant to the public records
hearsay exception in Rule 803(8).
C
[11] Weiland next maintains that the admission of the con-
victions violated 28 U.S.C. § 1738. We disagree. Section
1738, the federal full faith and credit statute, states, in part:
The records and judicial proceedings of any court
of any such State, Territory or Possession, or copies
thereof, shall be proved or admitted in other courts
within the United States and its Territories and Pos-
sessions by the attestation of the clerk and seal of the
court annexed, if a seal exists, together with a certifi-
cate of a judge of the court that the said attestation
is in proper form.
Such Acts, records and judicial proceedings or
copies thereof, so authenticated, shall have the same
full faith and credit in every court within the United
States and its Territories and Possessions as they
UNITED STATES v. WEILAND 11329
have by law or usage in the courts of such State, Ter-
ritory or Possession from which they are taken.
Weiland makes a strained argument that § 1738 creates
heightened evidentiary requirements for the admission of the
records of a prior conviction. We can find no authority for this
proposition,10 nor does reason support it. To the contrary, the
commentary to Federal Rule of Civil Procedure 44, incorpo-
rated into Federal Rule of Criminal Procedure 27, specifically
indicates that, under circumstances in which § 1738 is appli-
cable, proof may be made either by compliance with the Fed-
eral Rules of Evidence or in compliance with § 1738. See
Mateo-Mendez, 215 F.3d at 1045.
[12] Section 1738 is designed to ensure that each state and
federal court provides full faith and credit to appropriately
authenticated judicial judgments rendered in the other states.
The contents of the “penitentiary packet” challenged in this
case would be admissible in an Oklahoma criminal court pur-
suant to the state hearsay exception for public records, Frazier
v. State, 874 P.2d 1289, 1291-92 (Okla. Crim. App. 1994),
and § 1738 provides no bar to its admission here. Huffhines,
967 F.2d at 320.
D
Weiland next argues that the admission of the records of his
prior Oklahoma convictions without subjecting the Secretary
of State of the State of Oklahoma, Oklahoma records custo-
dian Richard E. Greene, and OSBI officer Nancy Young to
cross-examination violated the Confrontation Clause of the
Sixth Amendment.11 To determine whether evidence was
10
The sole precedent Weiland cites in support of his argument is dicta
in a concurring opinion in United States v. Perlmuter, 693 F.2d 1290,
1295 (9th Cir. 1982) (Ferguson, J., concurring). Perlmuter, a case involv-
ing criminal convictions from a foreign jurisdiction, id. at 1292, is inappli-
cable to this case.
11
We review de novo whether the district court admitted evidence in
violation of the Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 136-
37 (1999); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004).
11330 UNITED STATES v. WEILAND
admitted in violation of the Confrontation Clause, we look to
the framework set forth in Crawford v. Washington, 541 U.S.
36 (2004).12
In conducting an inquiry pursuant to Crawford, we first
consider whether challenged evidence was “testimonial” in
nature. If the evidence was testimonial, the government must
provide the defendant with confrontation and the opportunity
for cross-examination. Id. at 68 (“Where testimonial evidence
is at issue, however, the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity
for cross-examination.”). If the evidence is non-testimonial,
there is uncertainty as to whether the “indicia of reliability”
or firmly rooted hearsay exception test enunciated in Ohio v.
Roberts, 448 U.S. 56, 66 (1980), survives Crawford. See, e.g.,
United States v. Saget, 377 F.3d 223, 227, 230-31 (2d Cir.
2004); United States v. Manfre, 368 F.3d 832, 838 n.1 (8th
Cir. 2004).
[13] We first turn to the paramount question of whether the
evidence admitted without opportunity for cross-examination
was testimonial in nature. Here, the documents contained in
the “penitentiary packet” incorporate two layers of hearsay,
and, correspondingly, two potential Confrontation Clause
problems: 1) the records themselves, and 2) the statements of
Greene and the Secretary of State of the State of Oklahoma
providing the foundation to establish their authenticity.13 With
12
While this case was pending on appeal, the U.S. Supreme Court
decided Crawford v. Washington, rejecting the “indicia of reliability” or
firmly rooted hearsay exception test in favor of an inquiry into whether the
evidence was testimonial. Although Crawford had not yet been decided at
the time that Weiland faced trial, we apply it here on direct review. Grif-
fith v. Kentucky, 479 U.S. 314, 328 (1987).
13
Because we conclude that Greene’s certification was sufficient to
authenticate the “penitentiary packet,” we do not reach the question of
whether there would have been a Confrontation Clause violation had
Young been the only foundational witness. Unlike public records admitted
under Rule 803(8), records of a regularly conducted activity admitted
UNITED STATES v. WEILAND 11331
respect to the first layer, the records of conviction and the
information contained therein, the fingerprints, and the photo-
graph, it is undisputed that public records, such as judgments,
are not themselves testimonial in nature and that these records
do not fall within the prohibition established by the Supreme
Court in Crawford. 541 U.S. at 56.
[14] With respect to the second layer, the certifications by
Greene and the Secretary of State of the State of Oklahoma,
we encounter a novel question. Although the Court in Craw-
ford declined to offer a comprehensive definition of testimo-
nial evidence, the Court stated that “[w]hatever else the term
covers, it applies at a minimum to prior testimony at a prelim-
inary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Id. at 68; see also White v. Illinois, 502
U.S. 346, 365 (1992) (Thomas, J., concurring in part) (“[T]he
Confrontation Clause is implicated by extrajudicial statements
only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or
confessions.”). Greene’s certification and that of the Secretary
of State are “affidavits” prepared for the purposes of litigation
that might be argued to invoke the protections of the Confron-
tation Clause. Nevertheless, we conclude that a routine certifi-
cation by the custodian of a domestic public record, such as
that provided by Greene, and a routine attestation to authority
and signature, such as that provided by the Secretary of State
in this case, are not testimonial in nature. See United States
v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per
curiam). Not only are such certifications a “routine catalogu-
under Rule 803(6) require additional foundation. Loyola-Dominguez, 125
F.3d at 1318 (“[T]he public records exception is one of the few hearsay
exceptions that does not require a foundation.”). Because we resolve the
issues presented in this case based upon the public records provisions for
self-authentication, FED. R. EVID. 902(4), and hearsay, FED. R. EVID.
803(8), we need express no opinion on whether the Confrontation Clause
requires the government to make the custodian of business records avail-
able for cross-examination.
11332 UNITED STATES v. WEILAND
ing of an unambiguous factual matter,” United States v.
Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005), but
requiring the records custodians and other officials from the
various states and municipalities to make themselves avail-
able for cross-examination in the countless criminal cases
heard each day in our country would present a serious logisti-
cal challenge “without any apparent gain in the truth-seeking
process.” Crawford, 541 U.S. at 76 (Rehnquist, C.J., concur-
ring in the judgment). We decline to so extend Crawford, or
to interpret it to apply so broadly.
[15] Having concluded that both the documents in the
“penitentiary packet” and the certifications by Oklahoma
records custodian Greene and the Secretary of State were non-
testimonial in nature, we next turn to the question whether
these non-testimonial records might nevertheless have been
admitted in violation of the Confrontation Clause under Rob-
erts. See Saget, 377 F.3d at 230-31. We need not address this
inquiry here, however, because, even assuming that the Rob-
erts test survives Crawford and applies to non-testimonial evi-
dence, the law of our circuit establishes that the Roberts test
would be met in this case because the hearsay exception for
public records and their certifying documents is firmly rooted.
Orellana-Blanco, 294 F.3d at 1150; see also Roberts, 448
U.S. at 66. We thus conclude that the district court did not
admit the documents in the “penitentiary packet” in violation
of the Confrontation Clause of the Sixth Amendment.
IV
[16] Weiland contends that introduction of four Oklahoma
felony convictions when only one was required to prove his
status as a felon under § 922(g)(1) unfairly prejudiced him in
violation of Federal Rule of Evidence 403. See United States
v. Breitkreutz, 8 F.3d 688, 692 (9th Cir. 1993), abrogated on
other grounds by Old Chief v. United States, 519 U.S. 172
(1997); United States v. Lloyd, 981 F.2d 1071, 1071-73 (9th
Cir. 1992) (per curiam); see also United States v. Jones, 266
UNITED STATES v. WEILAND 11333
F.3d 804, 811-12 (8th Cir. 2001).14 In general, in a § 922(g)(1)
prosecution, the government is entitled to introduce evidence
of a prior felony conviction unless the defendant offers to
stipulate to his status as a felon. See Old Chief, 519 U.S. at
190-92. Because, however, of the prejudicial nature of evi-
dence of prior criminal history, a district court must take great
care to limit the evidence of previous convictions and to avoid
unnecessary prejudice to the defendant. FED. R. EVID. 403;
Old Chief, 519 U.S. at 185; United States v. Hernandez, 109
F.3d 1450, 1452 (9th Cir. 1997) (per curiam).
[17] The government, over Weiland’s objection, introduced
four substantially identical records of Oklahoma Second
Degree Burglary convictions. The issue is close because there
was no stipulation as to admissibility of any one conviction,
but we conclude that the district court abused its discretion in
admitting all four records of conviction. The four records
were nearly identical: each judgment was produced on the
same date, in the same Oklahoma district court, for the same
crime of Second Degree Burglary. The documents were also
authenticated by the single certificate completed by records
custodian Greene. Given the characteristics of the records of
conviction in this case, it is unlikely that one conviction
would lack a flaw contained in the others. Breitkreutz, 8 F.3d
at 692 (“Normally, however, prior felonies are established by
documentary proof that’s hard to dispute; proof of more prior
felonies adds very little of probative value and amounts to
unfair piling on.”); cf. Lloyd, 981 F.2d at 1073. Also, both the
large number of admitted convictions and the fact that the jury
viewed them without redacting the nature of the underlying
offense increased the risk of prejudice while adding little to
the case of the prosecution. See Hernandez, 109 F.3d at 1452;
see also Old Chief, 519 U.S. at 190-91 (“The most the jury
needs to know is that the conviction . . . falls within the class
14
We review for abuse of discretion a district court decision to admit
multiple felony convictions to prove a defendant’s status as a felon. Lloyd,
981 F.2d at 1072-73.
11334 UNITED STATES v. WEILAND
of crimes that Congress thought should bar a convict from
possessing a gun . . . .”); United States v. Rhodes, 32 F.3d
867, 875-76 (4th Cir. 1994) (Hamilton, J., concurring).
Although the prosecution may hedge its bets to some extent
against reversal based upon improperly admitted evidence,
Lloyd, 981 F.2d at 1073, an objection by the defendant does
not give the government license to introduce an unlimited
number of prior convictions when, as here, the record is
devoid of any indication that the records of conviction were
distinguishable, one from another, in any way meaningful
under the Federal Rules of Evidence or for appeal purposes.
[18] Having determined that the district court abused its
discretion in admitting all four Oklahoma convictions, we
turn to the question whether that error was harmless. Kot-
teakos v. United States, 328 U.S. 750, 764-65 (1946); United
States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The
erroneous admission of a prior conviction is harmless if the
government “provid[es] a ‘fair assurance’ that the error did
not substantially sway the verdict.” Id. (quoting Hernandez,
109 F.3d at 1453). We hold that this standard was met in this
case. Here, the district court instructed the jury to consider the
four Oklahoma convictions for the sole purpose of determin-
ing whether Weiland was a felon within the meaning of
§ 922(g)(1). United States v. Holler, 411 F.3d 1061, 1067 (9th
Cir. 2005). But see Hernandez, 109 F.3d at 1453. Given the
strong evidence that Weiland had been convicted of at least
one count of Second Degree Burglary in Oklahoma in 1976
and that he had been in possession of firearms and ammuni-
tion that traveled in interstate commerce, we conclude that the
jury would have reached the same verdict even absent the
erroneously admitted superfluous convictions. See Alviso, 152
F.3d at 1199.
V
Weiland argues that the four Oklahoma Second Degree
Burglary convictions should not have been used to enhance
UNITED STATES v. WEILAND 11335
his sentence under the Armed Career Criminal Act because
the government did not establish that he was convicted of four
crimes that included the elements of generic burglary.15 We
reject this argument, applying the modified categorical
approach. Here, the government produced an Information and
Judgment and Sentence on Plea of Guilty for each of the four
Oklahoma Second Degree Burglary convictions. We have
previously approved the use of these exact Oklahoma docu-
ments under the modified categorical approach, United States
v. Bonat, 106 F.3d 1472, 1477-78 (9th Cir. 1997), and the
United States Supreme Court recently cited our approach in
Bonat with approval, Shepard v. United States, 125 S. Ct.
1254, 1260 n.3 (2005). Each Oklahoma Information estab-
lishes that Weiland committed an offense that met the ele-
ments of generic burglary: an “unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.” Taylor, 495 U.S. at 599. We hold that the
district court correctly determined that the government estab-
lished that Weiland committed generic burglary under the
modified categorical approach.
VI
Weiland maintains that his 188-month sentence under the
Armed Career Criminal Act is constitutionally infirm on the
theory that it violates the jury trial requirement of the Sixth
Amendment. Although Weiland did not raise this argument in
the district court, we consider it because it presents a purely
legal question and the factual record below has been fully
developed. United States v. Reyes-Alvarado, 963 F.2d 1184,
1189 (9th Cir. 1992).
[19] Weiland’s argument is foreclosed by Almendarez-
15
We review de novo a district court ruling that the government pre-
sented documents sufficient to establish the elements of generic burglary
under the modified categorical approach. United States v. Franklin, 235
F.3d 1165, 1169 (9th Cir. 2000).
11336 UNITED STATES v. WEILAND
Torres v. United States, 523 U.S. 224, 247 (1998), in which
the Supreme Court held that a district court may enhance a
sentence on the basis of prior convictions, even if the fact of
those convictions was not found by a jury beyond a reason-
able doubt.16 We accordingly leave intact the 188-month sen-
tence Weiland received pursuant to the Armed Career
Criminal Act, 18 U.S.C. § 924(e).
VII
[20] Weiland finally argues that the district court erred in
declining to adjust downward for acceptance of responsibility
under U.S.S.G. § 3E1.1.17 This argument lacks merit. When a
16
Although recent Supreme Court jurisprudence has perhaps called into
question the continuing viability of Almendarez-Torres, see, e.g., Shepard,
125 S. Ct. at 1263-64 (Thomas, J., concurring), we are bound to follow a
controlling Supreme Court precedent until it is explicitly overruled by that
Court. Agostini v. Felton, 521 U.S. 203, 258 (1997) (Ginsburg, J., dissent-
ing); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484 (1989) (“If a precedent of this Court has direct application in a case,
yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving
to this Court the prerogative of overruling its own decisions.”); United
States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (“Unless and
until Almendarez-Torres is overruled by the Supreme Court, we must fol-
low it.”).
17
We review for clear error a district court decision not to adjust down-
ward for acceptance of responsibility under U.S.S.G. § 3E1.1. Nielsen,
371 F.3d at 582; United States v. Velasco-Medina, 305 F.3d 839, 853 (9th
Cir. 2002); United States v. Melvin, 91 F.3d 1218, 1227 (9th Cir. 1996).
Although a few Ninth Circuit opinions suggest that we lack jurisdiction to
review a district court decision not to grant a downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1, see, e.g., United
States v. Bauer, 84 F.3d 1549, 1562 (9th Cir. 1996); United States v.
Eaton, 31 F.3d 789, 792-93 (9th Cir. 1994), these opinions do not reflect
the overwhelming weight of the case law in this circuit supporting our rule
that we can review a decision not to adjust downward for acceptance of
responsibility. The few cases looking in the other direction appear to be
misapplying the general rule that we do not have jurisdiction to review a
district court’s discretionary denial of downward departure. See, e.g.,
Eaton, 31 F.3d at 792 (citing United States v. Morales, 898 F.2d 99, 103
(9th Cir. 1990)).
UNITED STATES v. WEILAND 11337
defendant chooses to put the government to its burden of
proof at trial, a downward adjustment for acceptance of
responsibility should be “rare.” U.S.S.G. § 3E1.1 cmt. n.2.
Appropriate downward adjustments for acceptance of respon-
sibility after trial might include when a defendant challenges
the constitutionality of a criminal statute, or other like circum-
stance. Id. In this case, Weiland challenged the admissibility
of his four underlying Oklahoma criminal convictions and
actively contested other aspects of the government’s case. We
hold that the district court did not clearly err in denying Wei-
land a downward sentencing adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1.
AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
Regretfully, I must dissent from the majority’s holding that
the records of Weiland’s prior convictions were admissible,
because “the records were properly authenticated because the
documents in the ‘penitentiary packet’ were self-
authenticating public records admissible under Rules 902(2)
and 902(4).” Maj. op. at 11324. Respectfully, I suggest that
the record in this case cannot support the weight of that con-
clusion.
Richard E. Greene is the manager of the Offender Records
Unit, Oklahoma Department of Corrections. In that capacity,
he certified the records of Weiland’s prior convictions at issue
in this case. In material part, his certification stated:
that in my legal custody as such officer, are the orig-
inal files and records of persons heretofore commit-
ted to the Department of Corrections; that the 1)
fingerprint card, 2) photograph, and 3) commitment
documents attached are copies of the original records
11338 UNITED STATES v. WEILAND
of persons heretofore committed to said Department
of Corrections, and who served a term of
incarceration/supervision therein; that I have com-
pared the foregoing and attached copies with their
respective originals now on file in my office and
each thereof contains and is a full, true and correct
copy from its said original.
Although the foregoing certification would be sufficient to
meet the requirements of Rule 902(2) and (4) if it were con-
sidered in isolation, as the majority does, the problem in this
case is that stapled to Greene’s certification is a “facsimile
transmittal,” which contradicts the material representations
made in the certification. The majority, without any analysis
whatsoever, dismisses this facsimile out of hand in one sen-
tence: “The facsimile included in the ‘penitentiary packet,’
apparently from Greene’s office to Paula Menifee in the
OSBI, does not change our analysis.”18 Maj. op. at 11325. I
do not believe that the facsimile can be dealt with in such an
offhand and facile manner — that is, virtually ignored.
The facsimile transmission stapled to Greene’s certification
is a fax from Paula Menifee, an employee of Greene’s unit,
Offender Records, to the Oklahoma State Bureau of Investi-
gation (the “Menifee Fax”).19 The text of the Menifee Fax
states: “Please send (BY MAIL ONLY) legible copies of any
fingerprints, photographs, and rap sheets on the following
individuals:” (Emphases in the original.) Listed below the text
is Weiland’s name, his date of birth, Department of Correc-
18
As I show immediately below, the majority is mistaken in assuming
that the facsimile was sent “from Greene’s office to Paula Menifee in the
OSBI.” In fact, Menifee is an employee of Greene in the Offender Records
Unit.
19
Menifee identifies herself as being with “Offender Records.” The fax
letterhead shows the same address for Menifee’s “Offender Records”
office — 3400 Martin Luther King Avenue, Oklahoma City — as the
address for Greene’s “Offender Records Unit,” shown below his signature
on the certification.
UNITED STATES v. WEILAND 11339
tions number, OSBI number [listed as “unknown”], FBI num-
ber, and Social Security number.
Several things are obvious from the Menifee Fax. First,
Greene does not have custody of “the original files and
records.” If he did, he (or Menifee on his behalf) would not
have to request the records from OSBI. Second, if Greene had
to obtain “legible copies” of the records from OSBI, he could
not have “compared the . . . copies with their respective origi-
nals.” Third, not having the ability to make a comparison with
the originals, Greene had no basis for certifying that the copy
is “full, true, and correct.” In sum, the Menifee Fax demon-
strates that Greene, in fact, was not the custodian of the
records which he purported to certify.
Further corroborating the Menifee Fax’s implicit conclu-
sion that Greene was not the custodian is the further fact that
the Menifee Fax was not addressed only to the Oklahoma
State Bureau of Investigation, but jointly to “OSBI-NCIC.”
Presumably, the fax was so addressed because “State law
enforcement agencies [i.e., OSBI] are connected to NCIC
through their computer systems,” Case v. Kitsap County Sher-
iff’s Dep’t, 249 F.3d 921, 924 (9th Cir. 2001), and going
through OSBI was the way that Greene’s Offender Records
Unit could access the NCIC database. We briefly described
NCIC in Case, as follows: “[T]he National Crime Information
Center computer system (‘NCIC’) . . . is a national criminal
records data system administered by the Federal Bureau of
Investigation. See 28 U.S.C. § 534. NCIC contains criminal
history information, including outstanding warrants, and is
available to police departments nationwide.” Id. at 923. If
Greene was, in fact, the custodian of these records, we can
only speculate why Greene, through Menifee, found it neces-
sary to inquire of the NCIC about Weiland’s criminal records.
In short, the Menifee Fax raises a number of troubling
questions. Indeed, without a satisfactory explanation of those
questions, it completely destroys the reliability of Greene’s
11340 UNITED STATES v. WEILAND
certification. Because the certification, on this record, is
demonstrably unreliable, the records it purports to certify
should not have been admitted under Rules 902(2) and
902(4), and Weiland’s conviction should be reversed.