FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50604
Plaintiff-Appellee,
v. D.C. No.
3:09-cr-00864-JM-1
LUIS MIGUEL DIAZ-LOPEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted August 31, 2010*
Pasadena, California
Filed November 9, 2010
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Gould
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
18439
UNITED STATES v. DIAZ-LOPEZ 18441
COUNSEL
Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Thomas B. Snyder, Assistant United States Attorneys, United
States Attorney’s Office, San Diego, California, for plaintiff-
appellee United States of America.
Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for defendant-appellant Luis Miguel
Diaz-Lopez.
18442 UNITED STATES v. DIAZ-LOPEZ
OPINION
GOULD, Circuit Judge:
At a bench trial, Luis Diaz-Lopez (“Diaz”) was convicted
of being a removed alien found in the United States in viola-
tion of 8 U.S.C. § 1326(a). Diaz contends that the district
court erred in admitting testimony about the results of a data-
base search introduced to show that Diaz had no permission
to return, urging theories that the testimony lacked foundation
and that it violated the best evidence rule.1 We have jurisdic-
tion under 28 U.S.C. § 1291, and we affirm.
I
Diaz was born in and is a citizen of Mexico. On February
13, 2009, a Border Patrol agent found and arrested Diaz on a
road in California, north of the United States-Mexico border.
The government charged Diaz under 8 U.S.C. § 1326(a) with
being a removed alien found in the United States without per-
mission. At a bench trial, the government introduced testi-
mony from a Border Patrol agent stating that he had
performed a search of the Computer Linked Application
Information Management System (“CLAIMS”) database
using Diaz’s name, alien number, and date of birth, and had
found no record of Diaz having filed a Form I-212, which is
the required application for permission to reapply for admis-
sion to the United States after having been previously
removed.
The district court found Diaz guilty and sentenced him to
twenty-one months in prison and three years of supervised
release. This appeal followed.
1
We address the other issues Diaz raised on appeal in a concurrently
filed memorandum disposition. In this published opinion we address only
whether admission of the agent’s testimony regarding the database search
lacked foundation and whether it violated the best evidence rule.
UNITED STATES v. DIAZ-LOPEZ 18443
II
Diaz appeals the district court judge’s decision to admit the
Border Patrol agent’s testimony about the database search. He
contends that the testimony lacked foundation and that it vio-
lated Federal Rule of Evidence 1002 (the “best evidence
rule”). We review the district court’s decision to admit this
testimony for abuse of discretion. United States v. Hernandez,
109 F.3d 1450, 1452 (9th Cir. 1997).
[1] We reject Diaz’s claim that the agent’s testimony
lacked foundation. At the bench trial, the agent testified that
he had performed a search of the CLAIMS database using
Diaz’s name, alien number, and date of birth, and found no
record of Diaz having filed a Form I-212. Diaz concedes that
this testimony is governed by Federal Rule of Evidence
803(10), an exception to the hearsay rule allowing testimony
to prove the absence of a public record. However, Diaz argues
that this testimony lacked foundation because the agent did
not establish the trustworthiness of the CLAIMS database by
describing the processes by which database entries are made
or deleted and errors are identified. See United States v. Rich,
580 F.2d 929, 938 (9th Cir. 1978) (“To merit judicial reliance
on the contents of records, it is necessary that the proponent
of particular records establish the trustworthiness of those
records.”).
[2] The agent testified about his experience with and per-
sonal use of the CLAIMS database and his knowledge of its
maintenance. The government need not produce a computer
programmer or expert witness to testify as to the accuracy of
the database. See U-Haul Int’l, Inc. v. Lumbermens Mut. Cas.
Co., 576 F.3d 1040, 1045 (9th Cir. 2009). For purposes of
establishing foundation, it was sufficient that the agent testi-
fied that he was familiar with both the process of searching
the records and the government’s recordkeeping practices
with regard to the database. See id. The testimony established
that the government relied on the CLAIMS database in con-
18444 UNITED STATES v. DIAZ-LOPEZ
ducting its business. See id. The agent was not required to
explicitly state that his search was “diligent.” See United
States v. Neff, 615 F.2d 1235, 1241-42 (9th Cir. 1980) (hold-
ing that testimony of a government agent that his search of an
IRS database revealed no records was sufficient for purposes
of Rule 803(10)). Diaz has not seriously challenged the accu-
racy of the CLAIMS database, “and nothing in the record on
appeal reveals a lack of trustworthiness.” Rich, 580 F.2d at
939 (holding that it is necessary that “there be some evidence
suggesting the unreliability of the [challenged] records”).
Diaz’s attack on the extent of the agent’s knowledge regard-
ing particular database policies and procedures was a fair sub-
ject for a reasonable cross-examination, but goes to the weight
accorded to the agent’s testimony by the factfinder rather than
to its admissibility. The agent’s testimony laid a sufficient
foundation for this relevant evidence to be admissible. The
district court did not abuse its discretion by admitting testi-
mony about the results of the database search.
III
[3] Diaz next argues that the agent’s testimony regarding
the results of the CLAIMS database search violated Federal
Rule of Evidence 1002, which codifies a principle long
referred to at common law as the “best evidence rule.” See
Fed. R. Evid. 1001-1008. Diaz’s assertion challenging the tes-
timony under the best evidence rule presents a question of
first impression in our circuit. We must decide if testimony
that a search of a computer database revealed no record of a
matter violates the best evidence rule when it is offered with-
out the production of an “original” printout showing the
search results. We hold that it does not.
[4] As we previously have observed, the best evidence rule
“requires not, as its common name implies, the best evidence
in every case but rather the production of an original docu-
ment instead of a copy.” Seiler v. Lucasfilm, Ltd., 808 F.2d
1316, 1318 (9th Cir. 1986). Federal Rule of Evidence 1002,
UNITED STATES v. DIAZ-LOPEZ 18445
on its face, is simple and clear in its statement: “To prove the
content of a writing, recording, or photograph, the original
writing, recording, or photograph is required, except as other-
wise provided in these rules or by Act of Congress.” Fed. R.
Evid. 1002. For purposes of this rule, “ ‘[w]ritings’ and
‘recordings’ consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.” Fed.
R. Evid. 1001. But despite its simple name and concise defini-
tion, experience has shown that application of this principle,
as with other difficult questions of the law of evidence, may
not “safely be handled in slap-dash fashion.” John MacArthur
Maguire, Evidence: Common Sense and Common Law, at v
(1947).
The scope, application, and relevance of the best evidence
doctrine have been debated by treatise-writers for centuries.
Professor Thayer thought it would “help to clear the subject,
and keep our heads clear, if we drop the name and the notion
of any specific rule of the Best Evidence.” James Bradley
Thayer, A Preliminary Treatise on Evidence at the Common
Law 507 (Boston, Little, Brown, and Co. 1898). A century
later, however, the name is still with us. Although the best
evidence doctrine in the federal courts has since been refined
to encompass only the requirement for originals set out in the
Federal Rules of Evidence (and in no way involves comparing
evidence to determine which is “the best”), it has also been
enlarged to include not just writings, but also recordings and
photographs. The modern doctrine appears to be a rule of
evolving scope (applying to ever-increasing varieties of
media) with less-frequent application (owing to the easy
availability of exact duplicates, modern discovery procedures,
and exceptions to the federal version of the best evidence
rule).
[5] The animating purpose of the best evidence rule has
been persuasively summarized as follows:
18446 UNITED STATES v. DIAZ-LOPEZ
[P]resenting to a court the exact words of a writing
is of more than average importance, particularly in
the case of operative or dispositive instruments such
as deeds, wills or contracts, where a slight variation
of words may mean a great difference in rights. In
addition, it is to be considered (1) that there has been
substantial hazard of inaccuracy in some of the com-
monly utilized methods of making copies of writ-
ings, and (2) oral testimony purporting to give the
terms of a writing from memory is probably subject
to a greater risk of error than oral testimony concern-
ing other situations generally. The danger of mis-
transmitting critical facts which accompanies the use
of written copies or recollection, but which is largely
avoided when an original writing is presented to
prove its terms, justifies preference for original doc-
uments.
2 George E. Dix et al., McCormick on Evidence § 232 (Ken-
neth S. Broun, ed., 6th ed. 2009). Professor Wigmore offered
a similar explanation of the “fundamental notion” of the best
evidence rule:
[I]n writings the smallest variation in words may be
of importance. . . . Thus the rule applies only to the
terms of the document, and not to any other facts
about the document. In other words, the rule . . . does
not apply to exclude testimony which concerns the
document without aiming to establish its terms . . . .
4 John Henry Wigmore, Evidence in Trials at Common Law,
§ 1242 at 574 (James H. Chadbourn rev. 1972).
We turn now to the issue presented by Diaz on this appeal.
Diaz contends that, under Federal Rule of Evidence 1002, the
government was required to produce an “original” to show
that the CLAIMS database did not contain any record of Diaz
having filed an I-212. When records or data are stored “in a
UNITED STATES v. DIAZ-LOPEZ 18447
computer or similar device, any printout or other output read-
able by sight, shown to reflect the data accurately, is an ‘origi-
nal.’ ” Fed. R. Evid. 1001(3). Diaz argues that the government
should have introduced a printout of the search results from
the CLAIMS database rather than testimony from the agent
performing the search.
[6] Diaz is correct that the CLAIMS database falls within
the scope of the best evidence rule, because the database is a
“[w]riting[ ] or recording[ ] . . . set down by . . . magnetic
impulse . . . or electronic recording, or other form of data
compilation.” Fed. R. Evid. 1001. The next question is
whether the evidence was introduced “[t]o prove the content
of a writing, recording, or photograph.” Fed. R. Evid. 1002.
We conclude that it was not. The agent’s testimony that he
searched the database and found no record of Diaz having
filed an I-212 is similar to testimony “that an event did not
occur because relevant records contain no mention of it. This
negative type of testimony is usually held not to constitute
proof of contents and thus not to require production of
records.” Dix et al., supra, at § 234 (emphasis in original).
Indeed, the advisory committee’s note to Rule 1002 states that
the best evidence rule does not apply to “testimony that books
or records have been examined and found not to contain any
reference to a designated matter.” Fed. R. Evid. 1002, advi-
sory committee’s note.2
2
We have not passed explicitly on this issue, but other jurisdictions are
in accord. See United States v. Jewett, 438 F.2d 495, 497-98 (8th Cir.
1971) (holding that there was no error in admitting testimony that a search
of books and records revealed no transfer of title to a property); Aiuppa
v. United States, 393 F.2d 597, 602 (10th Cir. 1968) (finding no error in
allowing two employees to testify that they searched government records
in their regions and found no record that defendant had applied for permis-
sion to possess more than the statutory limit of mourning doves), vacated
on other grounds by Giordano v. United States, 394 U.S. 310 (1969);
McDonold v. United States, 200 F.2d 502, 504 (5th Cir. 1953) (finding no
error where a witness testified that he examined the books and records of
the company and there was no record of payment by the defendant); Allen
v. Wells Fargo Bank Minn., N.A., 334 B.R. 746, 750 n.7 (D.D.C. 2005)
(holding that the best evidence rule did not apply to testimony that voice-
mail logs did not contain a record of a message).
18448 UNITED STATES v. DIAZ-LOPEZ
[7] Diaz concedes that if no record were found pursuant to
an agent’s physical search of an A-file, testimony to that
effect would be admissible under Federal Rule of Evidence
1002. However, Diaz asserts that, although the Rule applies
to computer databases, the advisory committee note’s limita-
tion on the Rule applies only to searches of “physical”
records. We decline to adopt such a position. First, we do not
see any meaningful difference between a search of a physical
file and a search of a database. Databases contain “physical”
records, too, even if those records are not printed on paper.
Second, the best evidence rule, like us, now survives in the
twenty-first century. It is common sense, and not mere sym-
metry, to say that because the rule applies to computer data-
bases, the rule’s limitations must also apply to such databases.
It is reasonable to apply the best evidence rule to new circum-
stances as technology evolves, but when the rule is extended,
courts will necessarily be required to decide if the limits on
the rule extend as well. When, by virtue of new technology,
the best evidence rule can be applied to testimony about data-
bases, the traditional limits on the rule should be properly
extended as well.
Our decision here does not conflict with our holding in
United States v. Bennett, 363 F.3d 947 (9th Cir. 2004). There,
we held that testimony about data retrieved from a boat’s
global positioning system (“GPS”) was barred by the best evi-
dence rule because the testimony had been introduced to
prove the “content” of the GPS, which, in turn, was evidence
that the defendant had come from Mexico. Id. at 953. But
Bennett concerned testimony about the contents of the GPS
data, not testimony about the absence of data. In that case, we
concluded that “the GPS itself—or a printout or other repre-
sentation of such data—. . . would have been the best evi-
dence of the data showing [the defendant’s] travels.” Id. at
954 (citations omitted). We reached that decision because the
testimony about the GPS data was introduced to prove its con-
tent (i.e., the location and travels of a boat). In Diaz’s case,
the government did not introduce testimony to prove the con-
UNITED STATES v. DIAZ-LOPEZ 18449
tent of a writing; rather, the government introduced testimony
to prove that a particular record was not part of the contents
of a database. Moreover, the testimony about the search of the
database was not testimony in which “the smallest variation
in words may be of importance.” Wigmore, supra; see also
State v. Nano, 543 P.2d 660, 662 (Or. 1975) (“In the present
case the witness testified to what the document did not con-
tain; that is, the sales records did not show any sales of the
calculators. . . . [T]his is not testimony in which ‘the smallest
variation in words may be of importance.’ ” (quoting Wig-
more, supra)).
It might be contended that, while the “smallest variation in
words” is not of importance in the case of testimony regarding
the negative results of a database search, such variations may
well be significant if the testimony is offered to prove what
particular search terms were used to search a database. How-
ever, even if Diaz had raised this argument, it would not aid
his case. Any dispute about the particular search terms used
by the agent for searching the CLAIMS database is not a dis-
pute about the contents of the database, or about the contents
of any records in the database, but rather a dispute about the
specific actions performed by the agent. As a result, the best
evidence rule would not apply because it applies only to writ-
ings, recordings, and photographs (as defined by Federal Rule
of Evidence 1001), and not to actions. Moreover, even if the
search terms used to search the database were genuinely in
dispute, Diaz was free to cross-examine the agent who per-
formed the search. Any doubts that might be raised by Diaz
regarding the completeness of the search or the search terms
used are a proper subject for a reasonable cross-examination,
and go to the weight accorded to the testimony, not its admis-
sibility under the best evidence rule.
[8] We hold that Federal Rule of Evidence 1002 is inappli-
cable to the agent’s testimony that his search of the CLAIMS
database revealed no record of a Form I-212 filed by Diaz.
18450 UNITED STATES v. DIAZ-LOPEZ
The district court did not abuse its discretion by admitting the
agent’s testimony.
AFFIRMED.