F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 18 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-6152
v.
ROLANDO SAMANIEGO,
Defendant-Appellant.
Appeal from the United States District Court
for the W. District of Oklahoma
(D.C. No. CR-97-152-C)
Submitted on the Briefs
Patrick M. Ryan, United States Attorney, Oklahoma City, Oklahoma, and
Leslie M. Maye, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for
Plaintiff-Appellee.
Michael G. Katz, Federal Public Defender, Denver, Colorado, and Jenine Jensen,
Assistant Public Defender, Denver, Colorado, for Defendant-Appellant.
Before TACHA, McKAY, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Rolando Samaniego was convicted in the United States District Court for
the Western District of Oklahoma of 31 drug-related counts. His appeal is
primarily addressed to the district court’s admission of several summaries under
Federal Rule of Evidence 1006 over his objection that the underlying documents
constituted hearsay and the government failed to lay the foundation required for
their admission. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291
and REVERSES.
A district judge’s decision to admit evidence is reviewed for an abuse of
discretion. See Harris Mkt. Research v. Marshall Mktg. & Communications, Inc.,
948 F.2d 1518, 1525 (10th Cir. 1991). Because evidentiary rulings are within the
sound discretion of the district court, this court will reverse only upon a “definite
and firm conviction that the lower court made a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Gilbert v.
Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993) (quotation omitted). A district
court abuses its discretion if its decision is based upon an error of law. See
United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1116 (10th Cir. 1998).
At trial, FBI agent Mark Seyler testified at length about his investigation
of the drug-trafficking ring in which Samaniego was implicated. A significant
part of Agent Seyler’s testimony focused upon summaries he made of subpoenaed
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telephone records. None of the underlying telephone records were admitted into
evidence. The summaries, however, were received as government exhibits 900
through 906 over the objections of defense counsel. Defense counsel objected to
their use for several reasons, including the inadmissibility of the underlying
documents as hearsay.
Rule 1006 states that summaries are permissible when voluminous evidence
“cannot conveniently be examined in court,” and when the evidence upon which
the summary is based is made available to the other parties at a “reasonable time
and place.” Fed. R. Evid. 1006. The materials upon which the summary is based
need not themselves be admitted into evidence. See 6 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence, § 1006.02 (Joseph M.
McLaughlin, ed., 1999) [hereinafter Weinstein’s Federal Evidence]. Admission
of summaries, however, is conditioned on the requirement that the evidence upon
which they are based, if not admitted, must be admissible. See, e.g., Harris, 948
F.2d at 1525 (holding that Rule 1006 “clearly permits the use of a summary of
business records provided ‘all of the records from which it is drawn are otherwise
admissible’” (quoting State Office Sys., Inc. v. Olivetti Corp. of Am., 762 F.2d
843, 845 (10th Cir.1985))); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th Cir.
1992); Weinstein’s Federal Evidence, § 1006.06[3]. A contrary result would
inappropriately provide litigants with a means of avoiding rules governing the
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admission of evidence such as hearsay. See United States v. Johnson, 594 F.2d
1253, 1255 (9th Cir. 1979) (“We do not believe that Congress intended that
counsel could abrogate other restrictions on the admissibility—like the hearsay
rule—by the use of summaries . . . .”).
The telephone records from which the summaries were drawn are
indubitably hearsay. The obligation of establishing the applicability of a hearsay
exception for these records falls upon the government as the proponent of the
evidence. See, e.g., United States v. Shirley, 884 F.2d 1130, 1133 (9th Cir. 1989)
(burden of proving admissibility of underlying materials is proponent’s). The
pertinent hearsay exception for business records, Federal Rule of Evidence
803(6), contains multiple foundational hurdles which must be cleared before the
summaries may be admitted. See United States v. Cestnik, 36 F.3d 904, 909-10
(10th Cir. 1994). Rule 803(6) requires that the custodian or other qualified
witness testify that (1) the records were made contemporaneously with the events
and “kept in the course of a regularly conducted business activity,” and (2) “it
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was the regular practice of that business activity to make the [record].” 1 Fed. R.
Evid. 803(6); cf. United States v. Reilly, 33 F.3d 1396, 1414 (3d Cir. 1994).
No effort whatsoever was made to establish the foundational requirements
of Rule 803(6) for admissibility of the underlying telephone records. Even when
faced with a hearsay objection, the government failed to sponsor a single witness
or even ask a single question of any witness in order to lay a foundation for
application of the business records exception. The district court made an error of
law by not requiring the government to lay the requisite foundation or forgo the
use of the summaries, and thus abused its discretion in admitting the summaries.
See Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co., 71 F.3d 335, 341-42
(10th Cir. 1995) (admission of documents not comporting with 803(6)
foundational requirements was error).
1
In certain circumstances, a foundation for admissibility can be established
by judicial notice of the nature of the business and “the nature of the records as
observed by the court, particularly in the case of bank and similar statements.”
United States v. Johnson, 971 F.2d 562, 571 (10th Cir. 1992) (emphasis added)
(quotation omitted). Unlike Johnson, the record here is not “replete with
circumstances demonstrating the trustworthiness of the documents.” Id. None of
the underlying documents was ever admitted; there is no indication that the
district judge ever saw them; and the record fails to justify their inclusion in the
class of records commonly viewed as particularly trustworthy, such as bank
records. Finally, consistent with the government failing to even acknowledge the
existence of a hearsay issue, see infra, the government has at no time suggested
judicial notice as a means to satisfy the foundational requirements.
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Such error, however, does not necessarily end the appellate inquiry.
Federal Rule of Criminal Procedure 52(a) provides that an error “which does not
affect substantial rights shall be disregarded.” Fed. R. Crim. P. 52(a); see also
United States v. Charley, 1999 WL 285879, at * 14-16 (10th Cir. May 7, 1999)
(inquiring into whether the error had a “substantial influence” on the verdict or
whether the court is left in “grave doubt” as to whether the evidence had such an
effect (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en
banc))). Although the government makes no assertion whatsoever that the
admission of these summaries without adequate foundation was harmless error,
this court may in its discretion “initiate harmless error review in an appropriate
case.” United States v. Torrez-Ortega, Nos. 97-8094, -8095, -8096, 1999 WL
446008, *5 (10th Cir. July 1, 1999) (quotation omitted). In Torrez-Ortega, this
court cited with approval three factors suggested by the Seventh Circuit in
determining whether an appellate court should address harmlessness when the
government has failed to do so: (1) the length and complexity of the record; (2)
whether the harmlessness of the errors is certain or debatable; and (3) whether a
reversal would result in protracted, costly, and futile proceedings in the district
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court. 2 See id. (citing United States v. Giovannetti, 928 F.2d 225, 227 (7th Cir.
1991)).
The 2,350 page record, over half of which constitutes trial transcript from a
six-day jury trial, is lengthy. The length of the record is equaled or exceeded by
its complexity. Samaniego and his co-defendant were indicted on over 70 counts,
all addressed to their alleged participation in a several-dozen member multi-state
conspiracy to distribute several tons of marijuana. Thirty of Samaniego’s thirty-
one convictions involve discrete and specific transactions with many different co-
conspirators, each requiring separate proof. 3 The record itself is abysmally
2
It is unclear what the third factor contributes to a court’s decision in
determining whether to exercise its discretion to sua sponte address the issue of
harmlessness. Without eviscerating the doctrine, cost and potentially protracted
proceedings cannot preclude reversal if an error was not harmless. Moreover, a
court could conclude that reversal would be futile only by undertaking the very
harmless error review it seeks to ascertain whether it should conduct.
Additionally, it is difficult to imagine how a court could conclude that reversal
would be futile if it has already concluded under the second Giovannetti factor
that the harmlessness of the error is not certain. Perhaps confusion about what
the third factor contributes to the analysis has caused this and other courts to
merely reference but not apply it. See United States v. Torrez-Ortega, Nos. 97-
8094, -8095, -8096, 1999 WL 446008, *6 (10th Cir. July 1, 1999); United States
v. Pryce, 938 F.2d 1343, 1348 n.4 (D.C. Cir. 1991) (Williams, J., separate
opinion) (citing Giovannetti favorably but stating that “[t]he role of the third
factor is unclear”); see also United States v. McLaughlin, 126 F.3d 130, 135 (3rd
Cir. 1997) (even though reversal would be “costly,” the complexity of the record
and the uncertainty of the harm warranted vacating conviction). Nevertheless,
depending upon the facts, the third factor may simply be irrelevant in cases such
as this.
3
Samaniego was also convicted on conspiracy to possess with intent to
distribute marijuana from 1994 to 1997, in violation of 21 U.S.C. § 841(a)(1).
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inadequate for a harmless-error review. For example, the sole exhibits in the
record are the summaries, constituting only 8 of the over 100 exhibits admitted
during trial. As a consequence, significant documentary evidence, such as the
purportedly consistent travel documents, is missing.
The summaries did not play a small role in the trial. Reference to the
summaries is woven throughout the fabric of the government’s closing. The
government related the telephone activity in the summaries to travel records,
which are not part of the record to review for harmless error, and the testimony of
accomplices who had pleaded guilty and whose character was acknowledged by
the prosecutor in closing to be questionable.
An unsolicited, unassisted, and undirected harmless-error review of an
incomplete record to search for and evaluate independent evidence to support
Samaniego’s thirty-one separate convictions would be lengthy, complex, and
dangerous. Furthermore, while the government’s brief lists the requirements of
Rule 1006, it never even addresses the error in this case, i.e., the failure to
establish the admissibility of the underlying telephone records. The government
compounds its default by failing to even suggest that the error was harmless, even
in the face of the defendant’s preemptive argument in his opening brief that the
error was not harmless. This silence on the issue of harmlessness and the failure
to provide an adequate record to review suggests acquiescence in reversal. See
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Giovannetti, 928 F.2d at 226 (stating that government’s failure to address
harmlessness when defendant had discussed issue in opening brief suggested that
the government acquiesced that any error was prejudicial).
In light of the length and complexity of proceedings, the apparent
prominence of the erroneously admitted summaries, and the government’s
complete and inexplicable failure to address the issue and provide this court with
guidance or even a record, this court declines to exercise its jurisdiction to review
the harmlessness of the erroneously admitted summaries. The judgement of the
United States District Court for the Western District of Oklahoma is REVERSED
and this matter is REMANDED.
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98-6152, US v. Samaniego
Tacha, J., dissenting
I respectfully dissent. While I agree with the majority that the district court
improperly admitted the telephone record summaries, I am convinced that we should
apply a harmless error analysis. The majority correctly notes that we may initiate
harmless error review sua sponte, despite the government’s failure to raise this argument.
Even in complicated drug cases like this one, it is incumbent upon us to scrutinize the
record to determine whether harmless error analysis is appropriate. In my mind, this is an
appropriate case for harmless error review because the record contains overwhelming
evidence that the defendant, Rolando Samaniego, actively participated in a marijuana
importation and distribution conspiracy over a period of years from 1994 to early 1997.
An erroneous evidentiary ruling is considered harmless unless it affects a
substantial right of a party. See United States v. Charley, 176 F.3d 1265, 1282 (10th Cir.
1999) (citing Fed. R. Evid. 103(a)). An error affecting a substantial right must have had a
“substantial influence on the outcome or . . . leave[] one in grave doubt as to whether it
had such effect.” Id. (internal quotation marks and citation omitted).
The government charged Samaniego with one count of conspiracy in violation of
21 U.S.C. § 846, thirteen counts of traveling or using a facility in interstate commerce to
facilitate an unlawful activity, 18 U.S.C. § 1952(a)(3), and seventeen counts of possession
of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1). The majority
focuses on the thirty specific counts, asserting that the telephone records are potentially
essential evidence for proving these offenses. However, the government presented at
least seven witnesses who had direct and sustained contact with defendant in his capacity
as a leader in the drug conspiracy. Maria Valle testified how Samaniego used her house
in Oklahoma City to store and distribute thousands of pounds of marijuana brought up
from Mexico in 1994. Gerardo Gutierrez-Moreno explained how Samaniego solicited
him to drive drug shipments from near El Paso, Texas, to Oklahoma City and how he
delivered those shipments to Samaniego in Oklahoma City. James Lee Pleskac, Pete
Ford, and Gerald Chillas admitted to driving shipments from Texas to Oklahoma City as a
part of the operation, and Pleskac and Ford testified that Samaniego was a part of the
conspiracy. Jeff Mosby was hired by defendant to help transport marijuana, and he
personally witnessed defendant weighing, sorting, and distributing hundreds of pounds of
marijuana. The defendant also used Mosby’s house to store his drug shipments in 1995,
after Maria Valle’s house was no longer available. Matthew Fernandez testified about
buying marijuana from defendant from 1994 to 1996. Finally, Drug Enforcement
Administration (“DEA”) Special Agent Timothy Jones testified that in September of
1994, he brought a shipment to defendant in Oklahoma City while serving in an
undercover capacity.
Almost all of these witnesses put Rolando Samaniego at the center of a drug
conspiracy that brought tons of marijuana from Mexico to Texas and then to Oklahoma
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City. Many of them corroborated each other’s testimony in important ways. For
example, several of them brought shipments to Samaniego at Maria Valle’s house. This
direct witness testimony provided extremely strong proof of defendant’s criminal activity.
The conspiracy charge, at the very least, has overwhelming support in the record. “To
obtain a conviction for conspiracy the government must show [1] that two or more
persons agreed to violate the law, [2] that the Defendant knew at least the essential
objectives of the conspiracy, . . . [3] that the Defendant knowingly and voluntarily became
a part of it, and [4] that the alleged coconspirators were interdependent.” United States v.
Ivy, 83 F.3d 1266, 1285 (10th Cir. 1996) (internal quotation marks and citations omitted).
The government more than met this burden with only the above-mentioned testimony. In
light of this evidence, the admission of the disputed telephone record summaries could
not have had a substantial influence on the outcome of the case with respect to the
conspiracy charge and several of the individual charges. Cf. United States v. Wilson,
134 F.3d 855, 867 (7th Cir.) (exercising discretion and finding harmless error in drug
conspiracy conviction where government presented overwhelming evidence against
defendant at trial), cert. denied, 119 S. Ct. 216 (1998); Lufkins v. Leapley, 965 F.2d 1477,
1482 (8th Cir. 1992) (exercising discretion and finding harmless error where record in
procedurally complicated case consisted only of the trial transcript, which included a
confession and corroborating evidence).
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Additionally, I am compelled to comment on the factors discussed by the majority
in determining whether to apply a harmless error analysis. As the majority points out, this
Circuit recently cited with approval United States v. Giovannetti, 928 F.2d 225, 227 (7th
Cir. 1991), in which the Seventh Circuit enunciated three factors to guide a court in
determining whether to conduct a harmless error analysis when the government waives
the issue. See United States v. Torrez-Ortega,__F.3d__, 1999 WL 446008, at *5-6 (10th
Cir. July 1, 1999). Those factors are the length and complexity of the record, the certainty
of the harmlessness, and the cost and futility of proceedings in the event of a reversal. I
agree with the majority that the third Giovannetti factor does not assist in the analysis of
whether to exercise our discretion. See Majority Op. at n.2. I further doubt the utility of
the first factor. I am especially concerned that a court facing a large record might rely
heavily or exclusively on the first factor in refusing to exercise discretion to apply
harmless error. In my judgment, an appellate court cannot be excused from its duty to
study a record, even in exercising the broadest scope of its discretionary review, just
because a record is lengthy and/or complicated. The scope of a record does not excuse
the appellate court from reviewing it and attempting to determine whether harmless error
analysis is appropriate. Indeed, I fail to see how we could ever make a rational judgment
on the second factor -- whether the harmlessness of the error is certain or debatable --
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without scrutinizing for ourselves the full record, regardless of its length or complexity.4
The complexity of a record should not by itself play a part in our analysis. Rather, a
complex record might be a factor that impacts our certainty of the harmlessness of the
error.
Thus, I look only to the second factor -- whether the harmlessness of the error is
certain or debatable. This, it seems to me, is the crux of harmless error review and the
touchstone for our analysis. If harmlessness is debatable, it is hard to conclude that the
error is harmless or, in this context, that the court should exercise its discretionary
prerogative to undertake a formal harmless error review. If, however, on the record
before the court, the harmlessness is certain, the appellate court should be much more
willing to exercise its discretion and engage in a thorough harmless error analysis.
When the government fails to argue harmless error on appeal, I hold the firm view
that our appellate review responsibility requires us to carefully examine the record before
us and decide whether to exercise our discretion to employ harmless error review based
not on the scope of the record, but on the level of our certainty that the error was
The court in Torrez-Ortega demonstrates this point. The court first notes
4
the extensive nature of the record and then explains that the harmlessness of
admitting testimony in violation of the Confrontation Clause was “at best
debateable.” Torrez-Ortega, 1999 WL 446008, at *6. It then concluded, “Our
independent review of the full record does not readily persuade us that the error is
harmless . . . .” Id. (emphasis added). Thus, the court had to review the entire
record, even though it was large and complex, in order to determine whether to
invoke its discretion to apply harmless error review.
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harmless. Based on my review of this record, I am sufficiently certain that the error in
admitting the telephone summaries was harmless with respect to at least some of the
convictions that I would exercise our discretion to conduct a harmless error analysis. I
therefore respectfully dissent.
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