United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING UNITED
STATES' MOTION IN LIMINE SEEKING A PRETRIAL RULING ON
ADMISSIBILITY OF EVIDENCE UNDER RULE 803(6)
MATTER comes before the Court on the United States'
Motion in Limine Seeking Pretrial Rulings on Admissibility of
Evidence Under Rule 803(6) filed on February 28, 2017 (Doc.
69). Having reviewed the parties' briefs and applicable
law, and the oral arguments of counsel presented at the
hearing on March 6, 2017, the Court finds that the Motion is
well-taken and is, therefore, GRANTED.
relevant background facts are set out in the Memorandum
Opinion and Order denying Defendant's motion to suppress
(Doc. 38) as well as the Government's brief (Doc. 69).
This case began with a traffic stop for an improper lane
change conducted by Bernalillo County Sherriff's Deputy
Leonard Armijo. A canine search led to a further search that
uncovered about $65, 020 in U.S. currency. Further
investigation revealed that Defendant travelled from Mexico
to Denver via Frontier Airlines on March 19, 2016, four days
prior to his arrest. Defendant travelled with an individual
named Jose Aviles. Defendant was making numerous entries into
the United States prior to his arrest on March 24, 2016.
Defendant is charged with Conspiracy to Commit Bulk Cash
Smuggling in violation of 18 U.S.C. § 371, Bulk Cash
Smuggling in violation of 31 U.S.C. § 5332(a)(1) and (b)
and Aiding and Abetting (18 U.S.C. § 2).
United States seeks a pretrial ruling on the admissibility of
Frontier Airlines records that show Defendant travelled to
the U.S. from Mexico a few days before his arrest with Jose
Aviles, who the Government alleges was part of the conspiracy
to commit bulk cash smuggling and who was named on the
insurance card for the vehicle Defendant was driving when he
was arrested. The Government maintains the records are
relevant to the charges and the records are not hearsay under
the business records hearsay exception, Federal Rule of
Federal Rule of Evidence 803(6)
United States argues the airline records are not hearsay
because they are records of a regularly conducted activity
under Rule 803(6). “A computer printout is admissible
under Rule 803(6), as with any other form of business record,
if the offeror establishes a sufficient foundation in the
record for its introduction.” United States v.
Cestnik, 36 F.3d 904, 909 (10th Cir. 1994) (quoting
United States v. Hayes, 861 F.2d 1225, 1228 (10th
Cir. 1988)). “Computer business records are admissible
if (1) they are kept pursuant to a routine procedure designed
to assure their accuracy, (2) they are created for motives
that tend to assure accuracy (e.g., not including
those prepared for litigation), and (3) they are not
themselves mere accumulations of hearsay.” Id.
(quoting United States v. Hernandez, 913 F.2d 1506,
1512 (10th Cir. 1990)). Whether a business record was
completed in anticipation for litigation focuses on whether
the data was input, not extracted as a regular business
practice. Hernandez, 913 F.2d at 1512-13. The
Defendant stipulates to the foundation for the airline
records. See Doc. 77.
Court finds the Frontier records meet the criteria under
Fed.R.Evid. 803(6) and are not hearsay. Defendant stipulates
to the foundation for the records, and the parties agree that
Frontier Airlines made and maintained Defendant's travel
record in the ordinary course of business and that the
records were made near the time Defendant crossed the border.
The records were made by a person with knowledge and in the
person's ordinary course of business. See Fed.
R. Evid. 803(6).
United States argues the records are relevant because they
provide evidence of the Defendant's activities across the
border. Specifically, the records show that Defendant entered
the United States on March 19, 2016, four days before his
arrest. Upon entering the United States, Defendant passed
through Customs, where he was asked if he was transporting
more than $10, 000. On March 16, 2016, Defendant travelled
from Denver to Puerto Vallarta, Mexico and again would have
been asked if he was transporting more than $10, 000. As part
of its burden of proof, the United States must establish that
Defendant knowingly evaded the reporting requirement. Thus,
the Frontier records make it more likely than not that
Defendant knew about the reporting requirement because he had
been asked at least twice before he was arrested.
the Government contends the records are relevant because the
United States charged Defendant with conspiracy to commit
bulk cash smuggling. During Defendant's traffic stop, he
told Deputy Armijo that he purchased the vehicle on March 22,
2016. Defendant presented an insurance card that indicated
the vehicle had been insured since August 11, 2016 under Jose
Aviles (the person with whom Defendant travelled from Mexico
to the U.S. on March 19, 2016). Defendant had a permit number
from High Tech Auto and Jose Aviles works at High Tech Auto.
Law enforcement found two hidden compartments in the vehicle.
The Government thus contends that it is relevant that
Defendant was traveling to the United States from Mexico and
the reverse with, Jose Aviles, the person listed as insuring
the United States maintains the Frontier Airlines records
support the following inferences, which show a pattern of
behavior that supports the Conspiracy charge as well as the
elements of the bulk cash smuggling offense:
1) Defendant flew in and out of the United States a week
prior to his arrest; 2) When Defendant entered the U.S. and
reentered Mexico he learned from customs about the reporting
requirement; 3) Defendant was traveling with the person that
owned the 2008 Honda Accord a week prior to his arrest; 4)
Jose Aviles insured the Honda Accord and works at High Tech
auto, where Defendant claims he purchased the vehicle; 5)
High Tech Auto is an auto shop where the non-factory
modifications were made; 6) Defendant conspired with Aviles
to alter the undercarriage of the vehicle; and 7) Defendant
conspired with Aviles to engage in bulk cash smuggling.
responds that the Frontier records are not relevant. The
records show only that Defendant was travelling with Aviles,
who he knows from Colorado, and they do not add any probative
value to whether Defendant ...