[00:00:00] Speaker 00:
Thank you, please have a seat everyone.

[00:00:08] Speaker 00:
We're delighted to hold court here in our hometown, in my hometown of Oklahoma City, and we're delighted to have two Mrs. Bagrax and Mrs. Gutowski on the front row.

[00:00:21] Speaker 00:
We ask for no heckling, please, from the front row.

[00:00:24] Speaker 00:
And I'm also delighted to have my two wonderful friends from Kansas, Judge Federico and Judge Morris, making the trek here, as well as counsel making the unusual arrangements, including getting on

[00:00:36] Speaker 00:
determined by Goffley early this morning.

[00:00:39] Speaker 00:
We have three cases that we'll hear this morning.

[00:00:42] Speaker 00:
The first case is United States versus Harper, and we'll hear first from Miss Johnson.

[00:01:01] Speaker 02:
Good morning, Your Honors.

[00:01:02] Speaker 02:
My name is Jamie Johnson.

[00:01:04] Speaker 02:
I'm an assistant federal public defender in Phoenix, Arizona, and I'm here today on behalf of Mr. Elja Harper.

[00:01:12] Speaker 02:
Elja Harper was convicted at trial of four offenses, each of which required the jury to find beyond a reasonable doubt that he was an Indian person.

[00:01:21] Speaker 02:
But the only evidence the government introduced at trial that Mr. Harper had some degree of Indian blood and that he was recognized as an Indian

[00:01:29] Speaker 02:
by a federally recognized Indian tribe was a letter signed by someone named Terry Stevens, who was not present or even mentioned in trial.

[00:01:37] Speaker 02:
The letter was dated 19 days before trial and described events that had taken place decades earlier.

[00:01:45] Speaker 02:
The letter was hearsay, not subject to any exception, and Mr. Harper's convictions must be vacated and the case remanded for a new trial as the law counts.

[00:01:56] Speaker 02:
Federal of Evidence 8036, which is the business records exception, does provide for the admissibility of business records into evidence as an exception to the hearsay rules.

[00:02:09] Speaker 02:
But importantly, it provides for admissions of the records themselves and not a letter or another document purporting to describe those records.

[00:02:20] Speaker 02:
The text of the rule itself makes that clear.

[00:02:22] Speaker 02:
It says that a record of an act, event, condition, opinion, or diagnosis is admissible as an exception to the hearsay records.

[00:02:32] Speaker 02:
There were no business records introduced at trial.

[00:02:35] Speaker 02:
This letter was produced in anticipation of litigation.

[00:02:39] Speaker 02:
As I mentioned, it was dated 19 days before trial began.

[00:02:45] Speaker 02:
clearly produced in order to be used at trial?

[00:02:49] Speaker 04:
Was there anything produced other than that?

[00:02:58] Speaker 04:
Was anything listed as an exhibit other than this?

[00:03:00] Speaker 04:
For instance, did they ever list the underlying document itself, the certificate of blood quantum wave?

[00:03:10] Speaker 02:
Did they ever list that as an exhibit?

[00:03:12] Speaker 02:
So I was not the trial counsel in this case.

[00:03:14] Speaker 02:
Certainly the CVIB was not introduced into evidence as trial.

[00:03:18] Speaker 02:
As to whether that was ever put on an exhibit list, I'm unaware of that fact.

[00:03:23] Speaker 02:
I don't believe so.

[00:03:24] Speaker 02:
But certainly it was not introduced at evidence at trial.

[00:03:27] Speaker 02:
It was not before the jury.

[00:03:28] Speaker 02:
And the jury, it was not anything that the jury considered in connection with its deliberations.

[00:03:34] Speaker 02:
And that document should have been available.

[00:03:39] Speaker 02:
Because absent production of that document

[00:03:42] Speaker 02:
there was no basis to admit this summary of what it purported to say.

[00:03:48] Speaker 05:
Council may ask, a moment ago you said that only evidence was this letter that was signed by Mr. Stevens, but what about the testimony of Ms.

[00:04:00] Speaker 05:
Oaks?

[00:04:01] Speaker 05:
So she was the 902-11 affiant and who signed the certificate, but after

[00:04:08] Speaker 05:
the exhibit was admitted into evidence.

[00:04:11] Speaker 05:
As I reviewed the record, the prosecution asked her questions about the contents of the letter, and she testified as to what was in the letter.

[00:04:19] Speaker 05:
And so her testimony was not objected to.

[00:04:21] Speaker 05:
It itself is evidence.

[00:04:23] Speaker 05:
It's in the record.

[00:04:24] Speaker 05:
So even if we were to say that the exhibit itself, the document, was admitted in error, why wouldn't her testimony, though, be sufficient then as we evaluate for harmless air?

[00:04:37] Speaker 02:
As your honor observed, she did testify as to the contents of the document, but all she did was read the document.

[00:04:43] Speaker 02:
She didn't provide separate testimony.

[00:04:45] Speaker 02:
She was asked what the document said.

[00:04:47] Speaker 02:
There had already been a hearsay objection made as to the introduction of that document.

[00:04:54] Speaker 02:
The objection was overruled.

[00:04:56] Speaker 02:
And so at that point, I don't think that there was any basis for an objection to

[00:05:00] Speaker 02:
had her read the document into evidence, which is basically all that she did.

[00:05:05] Speaker 02:
So I think that her testimony was derivative of the document itself, as to which there was a preserve to your state objection.

[00:05:26] Speaker 02:
And we've cited for the court a number of cases.

[00:05:30] Speaker 02:
that support the proposition that testimony about business records is not a substitute for admission of the records itself.

[00:05:43] Speaker 02:
We have the two cases from the Fifth Circuit, one from the First Circuit, and then an unpublished case for the Eleventh Circuit that held that it was plain error to permit testimony about business records when those business records were not themselves introduced into evidence.

[00:05:58] Speaker 00:
And as I understand it, we don't really have to address those out-of-circuit cases because those are talking about the answer to Judge Federico's question, right, whether or not if we were to take the testimony about the verification letter as substantive evidence to support the content of the verification letter,

[00:06:24] Speaker 00:
But your argument, I think, is just more basic and fundamental.

[00:06:29] Speaker 00:
The government presented this verification letter.

[00:06:32] Speaker 00:
It was prepared in anticipation of litigation.

[00:06:35] Speaker 00:
It wasn't prepared in the ordinary course of business.

[00:06:38] Speaker 00:
It's not a business record.

[00:06:39] Speaker 00:
That was the purported basis for admission.

[00:06:42] Speaker 00:
And therefore, it's error, right?

[00:06:44] Speaker 02:
I think we are certainly making that argument.

[00:06:46] Speaker 02:
I think that we are also making the other argument, that testimony about, and we would say whether that's in the form of a letter that goes to the jury.

[00:06:54] Speaker 02:
or oral testimony about the contents of the record would be equally as inadmissible under the rules.

[00:07:02] Speaker 00:
OK.

[00:07:04] Speaker 02:
So if there are no other questions about the letter, I can move on to our next issues.

[00:07:11] Speaker 00:
And I assume we need to reach the issue about Dr. Loftus if we reverse on your hearsay argument, since you've asked us to remand for a new trial and presumably

[00:07:23] Speaker 00:
Judge Heil is going to readdress the issue about the admissibility of Dr. Loftus' testimony, right?

[00:07:29] Speaker 02:
It may be prudent to do so, although certainly it's not necessary in order to reverse the convictions.

[00:07:37] Speaker 02:
Judge Heil was the judge who issued the order stating the testimony, but then the case was transferred to an out-of-district judge.

[00:07:52] Speaker 02:
The district court, in evaluating whether the testimony of Dr. Loftus was admissible, used an incorrect legal standard.

[00:08:01] Speaker 02:
Instead of performing a Daubert analysis, the court misread this court's decision in Rodriguez Felix as providing a list of elements or a list of factors

[00:08:15] Speaker 02:
all of which must be met before any testimony about eyewitness testimony.

[00:08:20] Speaker 00:
And you're predicating that on Judge Murphy's statement of at the end of this litany after the disjunctive cross-racial identification, et cetera, where he said, these are not the circumstances that are present here.

[00:08:39] Speaker 00:
And that's where you're hanging your hat on his misreading of our precedent, right?

[00:08:44] Speaker 02:
Yes, I think it was actually Judge Heil who issued this order before the case got transferred.

[00:08:48] Speaker 02:
I know it gets a little bit confusing.

[00:08:52] Speaker 02:
I think that there were two fundamental errors of law in the order.

[00:08:55] Speaker 02:
Number one is that it read that list of examples in which expert testimony about eyewitness identification might be useful as a list of factors, each of which must be met in order for the testimony to come.

[00:09:08] Speaker 00:
How do you know that's what he meant?

[00:09:11] Speaker 02:
It appears to be what he said, because two of the factors were met.

[00:09:14] Speaker 02:
He acknowledged that two of the factors that were actually met in this case, it was a cross-racial identification.

[00:09:21] Speaker 02:
It was an identification of the stress.

[00:09:24] Speaker 00:
You said that in your brief.

[00:09:25] Speaker 00:
That struck me.

[00:09:27] Speaker 00:
So are you acknowledging that he had Indian blood?

[00:09:32] Speaker 02:
As a matter of fact, he was consistently referred to in the trial as a black man.

[00:09:37] Speaker 00:
Okay, so your argument is that he was black and the victim was white.

[00:09:46] Speaker 00:
Okay, let's say I am a Caucasian and I have a black man that works for me for a year.

[00:09:54] Speaker 00:
Is that really what Rodriguez was talking about, where I know the person, the person knows me, we have basically a daily relationship,

[00:10:05] Speaker 00:
Or was Rodriguez, presumably, just as a matter of common sense, talking about cross-racial identification of someone who was unknown to the victim?

[00:10:15] Speaker 02:
Your Honor, I think that that would be a fair inquiry, had that been the inquiry the district court made.

[00:10:21] Speaker 02:
But it didn't.

[00:10:23] Speaker 02:
Instead, it simply said, this is a cross-racial identification.

[00:10:26] Speaker 02:
It made a factual finding that a cross-racial identification was present here and that that factor was therefore met.

[00:10:34] Speaker 02:
And then it acknowledged that identification under stress was also present here, and excluded the testimony because the third factor, identification after a period of time, or the third circumstance in which this court said it would be helpful, identification after a period of time, was not met here.

[00:10:53] Speaker 02:
And so I think that what we're asking is for a remand to the district court to perform the correct Daubert analysis using the correct legal standard, which, yes?

[00:11:04] Speaker 04:
There was more to that decision than just the application of the Rodriguez-Felix factors.

[00:11:10] Speaker 04:
It seems to me that district court used that phrase from Rodriguez-Felix about there being an evidentiary cornucopia of evidence identifying this defendant.

[00:11:24] Speaker 04:
And the primary one being, as Judge Bacharach mentioned,

[00:11:29] Speaker 04:
The victim knew him well.

[00:11:30] Speaker 04:
He had been doing work at her home for some time.

[00:11:35] Speaker 04:
He'd been working for the neighbors.

[00:11:37] Speaker 04:
They also identified him.

[00:11:39] Speaker 04:
When she called 911 immediately after the attack, she identified him by name.

[00:11:47] Speaker 04:
He seemed to be saying, almost like this takes it out of the whole thing.

[00:11:51] Speaker 04:
Yes, Felix factor analysis.

[00:11:56] Speaker 02:
Judge Martz, I agree with you that those are things that could be considered in determining, for example, whether Dr. Loftus' testimony was matched to the facts of this case.

[00:12:07] Speaker 02:
But that doesn't appear to be, from my reading of the opinion, what the district court actually did.

[00:12:11] Speaker 02:
The term evidentiary court copia was used by this court in determining that the exclusion of the testimony, even if it had been erroneous, would have been harmless.

[00:12:23] Speaker 02:
And harmless error is not a standard that district courts should use in their initial analysis of whether testimony is admissible or inadmissible.

[00:12:31] Speaker 02:
So the factors that you've cited, I agree that those are things that on remand a district court could consider in determining whether this testimony would be helpful to the jury or unhelpful to the jury.

[00:12:41] Speaker 02:
But I think that the district court needs to perform that analysis in the first instance and I don't think that it was done here.

[00:12:48] Speaker 02:
And the error,

[00:12:50] Speaker 02:
in excluding that testimony was compounded by the error in admitting testimony from the law enforcement unnoticed expert testimony from the law enforcement witness about the effects of trauma on memory.

[00:13:03] Speaker 02:
and where memory is coded in the brain.

[00:13:05] Speaker 02:
And I think left the jury with an unfair impression that individuals who are making identifications under stress might actually be better at identifying people than otherwise.

[00:13:16] Speaker 02:
And so these kind of work together.

[00:13:18] Speaker 02:
And I think that that's where the prejudice and the harm in our case comes in.

[00:13:22] Speaker 04:
Well, the court did appropriately go to harmless error on that issue, didn't it?

[00:13:28] Speaker 04:
You're talking about the same nurse?

[00:13:30] Speaker 04:
The same nurse, yes.

[00:13:31] Speaker 04:
In this family?

[00:13:33] Speaker 04:
in her testimony about memory, the effects of trauma on memory.

[00:13:39] Speaker 04:
And it seemed to me that the court made a pretty specific decision about this being harmless error.

[00:13:47] Speaker 04:
I say, I mean, the court didn't, but I mean, he rejected.

[00:13:53] Speaker 04:
I'm getting mixed up here, so I apologize.

[00:13:58] Speaker 04:
I guess I should ask you, why is it this harmless error?

[00:14:03] Speaker 02:
I think it's not harmless error because it works in conjunction with the exclusion of Dr. Loftus to leave the jury with, I think, an unfair, incorrect, and misleading impression about how trauma and memory and stress interact together.

[00:14:21] Speaker 04:
But that all went to identity, didn't it?

[00:14:24] Speaker 04:
Wasn't that the real issue was whether she properly identified him as

[00:14:31] Speaker 04:
as the assailant, and so doesn't that just all go back to that cornucopia of evidence that we have of his identity?

[00:14:39] Speaker 02:
I think it went to the issue of whether she correctly remembered who the assailant was, because Mr. Harper did not deny being present at her house.

[00:14:53] Speaker 02:
He told the authorities that he arrived, found her already injured,

[00:14:57] Speaker 02:
thought he might be blamed, panicked, and left.

[00:15:00] Speaker 02:
And so the issue was whether it was possible under the circumstances that she had conflated her memory of him coming to the house with her memory of who attacked her and had correctly identified him to law enforcement as someone who had been at her house that day, but incorrectly identified him as her assailant.

[00:15:19] Speaker 02:
I see I have 45 seconds left.

[00:15:20] Speaker 02:
I would like to reserve the remainder of my time unless there's another question.

[00:15:23] Speaker 00:
Let's stop our clock at 45 seconds.

[00:15:26] Speaker 00:
Just Federica, do you have any questions?

[00:15:30] Speaker 04:
No.

[00:15:31] Speaker 00:
Okay.

[00:15:32] Speaker 00:
Thank you.

[00:15:33] Speaker 00:
We'll hear from the government.

[00:15:41] Speaker 01:
Good morning, Your Honors.

[00:15:42] Speaker 01:
May I please the Court lean out along for the United States.

[00:15:45] Speaker 01:
I'd like to start by correcting what I believe is an error in the appellant's reply brief.

[00:15:52] Speaker 01:
specifically, appounds reliance on the advisory committee note to the definitions rule 1001, cites that rule as a note to section 1001D.

[00:16:10] Speaker 01:
However, if you look at the advisory committee note, it actually says note, that they are referring to, it says note paragraph four.

[00:16:20] Speaker 01:
That's interesting because 1001 has five lettered paragraphs, not numbered paragraphs.

[00:16:28] Speaker 01:
But the explanation to this is that the advisory committee noticed from 1972, and that when the rule was originally adopted,

[00:16:35] Speaker 01:
In 1975, under public law 93595, it had four numbered paragraphs.

[00:16:44] Speaker 01:
The first was writings and recordings, the second was photographs, the third was originals, and the fourth was duplicates.

[00:16:51] Speaker 01:
And so the commentary, the note that they rely on talks about the definition of what a copy is and refers to paragraph four.

[00:17:00] Speaker 01:
That makes sense because the original paragraph four was about duplicates.

[00:17:05] Speaker 01:
Paragraph three, the original paragraph three, which is now subparagraph D, is about originals.

[00:17:13] Speaker 01:
And so all of the note that they cite about what cannot be an original, such as a manually produced copy, pertains not to the definition of what's an original, but to what the definition of a copy is.

[00:17:27] Speaker 00:
Is the implication of why any of that matters, your assumption or assume,

[00:17:34] Speaker 00:
that a verification letter is somehow a copy of a completely different set of documents, the CIDB records.

[00:17:43] Speaker 00:
Typically, if you go to our court clerk's office and you tell the clerk, you know, I want a certified copy of a document, you get a certified copy.

[00:17:53] Speaker 00:
There's really no controversy over what's a copy.

[00:17:56] Speaker 00:
Now, if I go in and I take notes and I say, OK, well, this is what the document actually says, well, that's no longer a duplicate or a copy under any definition under the rules of Webster's or Black's.

[00:18:10] Speaker 00:
That's Bob Baccarat taking notes, just like this verification letter.

[00:18:14] Speaker 01:
That's true, but it's not relevant for two reasons.

[00:18:19] Speaker 01:
First, we're not arguing that this is a copy under the definition 1001E.

[00:18:26] Speaker 01:
The definition of an original in 1001D says an original of a writing is the writing itself or any counterpart intended to have the same effect by the person who executed or issued it.

[00:18:47] Speaker 01:
And in the context of electronically stored information, it says the record or the writing is any printout

[00:18:56] Speaker 01:
or any output readable by sight if it accurately reflects the information.

[00:19:04] Speaker 05:
You said the certificate in comparing it to electronically stored information, but my understanding is these certificates are physical objects kept in a vault, right?

[00:19:14] Speaker 01:
I think that depends on what we're talking about.

[00:19:17] Speaker 01:
There are actually two

[00:19:19] Speaker 01:
sources of the information, or there are two potential sources of the information that are pulled into that record.

[00:19:27] Speaker 01:
Ms.

[00:19:28] Speaker 01:
Oates testified that the CDIB records are kept in the vault.

[00:19:32] Speaker 01:
She did not testify, nor was she asked, either on direct or cross-examination, what form the tribes' membership records take.

[00:19:42] Speaker 01:
And it's not in the record, obviously, because she wasn't asked.

[00:19:46] Speaker 01:
But to the extent that the district court admitted this tribal verification letter, it would not have abused its discretion in concluding that the tribe kept electronic records of its membership.

[00:19:58] Speaker 05:
How can the district court not have abused its discretion if there was no testimony to support that?

[00:20:09] Speaker 01:
Ms.

[00:20:10] Speaker 01:
Oaks testified that she produced this letter from the membership records.

[00:20:17] Speaker 01:
She granted it.

[00:20:18] Speaker 01:
She didn't even sign it.

[00:20:20] Speaker 01:
Well, if you look at the letter, and this is actually the second part of my answer to Judge Baccarat's question, although she says she prepared it, she didn't say, she typed it out.

[00:20:30] Speaker 01:
That letter has the indicia, including the electronic signature, including the file path, that suggests what it is, is a mail merge document.

[00:20:40] Speaker 04:
electronically produced letter clarify which are you now talking about the Terry Stevens letter to whom it may concern yes and you say that's an electronic I'm sure and has the indicia of an electronic document

[00:20:56] Speaker 01:
That's precisely what I'm suggesting, is that from the database of tribal membership information, which we can agree, I think, is a record, that this letter was generated, and is typically generated in the course of the tribe's regularly conducted activity, that they generate these letters pulling that information electronically from the database and putting in

[00:21:22] Speaker 01:
They type in the name and it spits out a letter that says, this person got a CDIB card on this date, was enrolled as a member of this tribe on this date, and it pulls the electronic signature of Ms.

[00:21:34] Speaker 01:
Oaks' boss, Terry Stevens, the director of CDIB and membership out of the Choctaw Nation.

[00:21:38] Speaker 05:
What business duty did Terry Stevens have to generate this letter other than to prepare it for purposes of this trial?

[00:21:46] Speaker 01:
Although the temporal link perhaps suggests that it was prepared for this trial, there's no evidence in the record that says that.

[00:21:57] Speaker 01:
But more to the point, these letters are produced all the time.

[00:22:00] Speaker 01:
by tribal nations to prove eligibility for health care, for instance, the glasses that Mr. Harper was seeking.

[00:22:10] Speaker 01:
There are any number of reasons that the tribe provides these letters.

[00:22:13] Speaker 01:
They are not provided simply for the purposes of identifying an individual as an Indian for purposes of federal prosecution.

[00:22:24] Speaker 01:
These are letters and had

[00:22:27] Speaker 01:
the defense chosen to cross examine those oaks about this, or they might have learned that that's how, that those letters are produced for all kinds of reasons, not just for litigation.

[00:22:40] Speaker 05:
She didn't say that affirmatively during her direct exam, did she?

[00:22:44] Speaker 05:
She did not.

[00:22:44] Speaker 05:
You're arguing all of these other purposes in which these letters may be generated to determine eligibility.

[00:22:49] Speaker 05:
Yes.

[00:22:50] Speaker 05:
But that's not in the record.

[00:22:51] Speaker 01:
Right, but what is in the record is Ms.

[00:22:54] Speaker 01:
Oaks testifying that she herself generated this letter and prepared the certificate which states that this letter was produced in the regular, regularly conducted activity of the nation and that the making of the record was a regular practice of that activity, satisfying 8036.

[00:23:17] Speaker 01:
that the court did not abuse its discretion in crediting Ms.

[00:23:21] Speaker 01:
Oaks' testimony that she prepared a certification that met every element of the 8036 analysis.

[00:23:28] Speaker 00:
Significantly.

[00:23:30] Speaker 00:
This is such an interesting argument and I'm trying to untangle it.

[00:23:34] Speaker 00:
So your argument is that this verification letter is somehow interpreted as an original of the CIDB records, a distinct set of documents,

[00:23:48] Speaker 01:
That's not exactly what my argument is, Your Honor.

[00:23:51] Speaker 01:
And in fact, I think there are two ways that the district court could have admitted this letter properly.

[00:24:00] Speaker 01:
One is similar to what you're saying.

[00:24:04] Speaker 01:
It's actually that this letter is an original of the membership records, the Choctaw Nation's membership records, which contain both CDIB information, because that's required to become a member of the Choctaw Nation, and the membership information itself.

[00:24:20] Speaker 00:
So the verification letter is somehow the same thing as this distinct set of documents.

[00:24:27] Speaker 01:
Because it is an output readable by sight that accurately conveys the information.

[00:24:33] Speaker 04:
Well, can you talk about the case that you relied on for that?

[00:24:36] Speaker 04:
It isn't anything similar to this.

[00:24:38] Speaker 04:
I think it was Shannon.

[00:24:39] Speaker 01:
Shannon, yes.

[00:24:40] Speaker 04:
That's the only case you relied on that I could see.

[00:24:42] Speaker 04:
And it's nothing like that.

[00:24:43] Speaker 01:
Well, and Shannon, interestingly, doesn't, it briefly talks about 1001.

[00:24:48] Speaker 01:
But what it effectively says is the business records exception applies to records kept in one form, even if they're presented in another.

[00:24:57] Speaker 01:
And so the principle is the same here.

[00:24:59] Speaker 01:
But the facts are different.

[00:25:02] Speaker 01:
If we remember that this is an abusive discretion standard, the question is, would the district court have abused its discretion in looking at this letter, noting the indicia that had been electronically prepared from a database, the membership information, whether that would have been abusive discretion?

[00:25:24] Speaker 01:
The alternative argument here is that the letter is a record itself.

[00:25:29] Speaker 00:
And I think for purposes of that... Well, we know it's a record, but is it a record that's visible?

[00:25:38] Speaker 01:
Sure.

[00:25:38] Speaker 00:
I mean, it's a record that ostensibly is hearsay.

[00:25:42] Speaker 01:
Well, and so under 8036, I think the important thing to remember is 8036 applies to a record of an act, an event, a condition, an opinion, or a diagnosis.

[00:25:55] Speaker 01:
This record contains two dates.

[00:25:58] Speaker 01:
And some of the discussion about whether this is accurate, whether it complies with element one of 8036 is whether it was made at the time.

[00:26:09] Speaker 00:
In 2002?

[00:26:10] Speaker 01:
Obviously, it was not made in 2002 when Mr. Harper got his CDIB card.

[00:26:15] Speaker 01:
It was not made in 2011 when he became a member of the Choctaw Nation.

[00:26:20] Speaker 01:
But it was made at or near the time of the condition

[00:26:24] Speaker 01:
That is the primary issue in this case, which is of Mr. Harper's tribal status.

[00:26:31] Speaker 01:
Was his condition a member of the Choctaw Nation?

[00:26:34] Speaker 01:
At the time the letter was prepared, was he a member of the Choctaw Nation who had some degree of Indian birth?

[00:26:41] Speaker 01:
And that's why the letter satisfies 80361.

[00:26:46] Speaker 04:
What about 2?

[00:26:48] Speaker 04:
Was camped in the coercion tribes regularly conducted activity?

[00:26:53] Speaker 01:
Yes.

[00:26:54] Speaker 04:
And was this kept?

[00:26:55] Speaker 04:
I mean, I think what you're saying, it was generated for this litigation.

[00:27:00] Speaker 04:
And it's normal for the tribe to generate this type of letter when there's any issue about Indian status.

[00:27:08] Speaker 01:
First, I'm not.

[00:27:09] Speaker 04:
That's different than saying that the tribal membership was kept in the course of the tribe's regularly conducted activity.

[00:27:16] Speaker 01:
Certainly, the tribal membership information was kept.

[00:27:19] Speaker 04:
Litigation is not regularly conducted activity.

[00:27:23] Speaker 01:
But the production of tribal verification letters themselves, those are regularly kept by the tribe for purposes such as identifying whether an individual is eligible for health care, for social services, for all kinds of things.

[00:27:38] Speaker 04:
These letters are regularly kept.

[00:27:39] Speaker 04:
These aren't records that are kept in the course of a regular business activity.

[00:27:43] Speaker 04:
These are letters that are generated when they're needed for some outside

[00:27:48] Speaker 01:
And that's why we turn to the second way to establish that this record was properly admitted.

[00:27:56] Speaker 01:
That under the definition of an original, under 1001D, this was both any counterpart intended to have the same effect as the original by the person who executed or issued it.

[00:28:15] Speaker 01:
issued in this case is Tabitha Oakes, and she intended that that letter had the same effect as the underlying record.

[00:28:23] Speaker 01:
It is an original.

[00:28:24] Speaker 01:
Alternatively, the district court would not have abused its discretion in concluding that this came from electronically stored information and qualified as any output readable by sight that

[00:28:43] Speaker 01:
accurately reflected the information.

[00:28:45] Speaker 01:
And Ms.

[00:28:46] Speaker 01:
Oak's testimony adequately established that.

[00:28:49] Speaker 01:
I want to close by talking just briefly about Wood and why this case is different than Wood.

[00:28:55] Speaker 01:
In Wood, the motivating issues behind the court's opinion were two, that the government deprived the defendant of the opportunity to challenge non-frivolous complaints

[00:29:09] Speaker 01:
about the tribal verification letter and the accompanying certification because the government did not timely provide the 902.11 certificate or call a witness to allow the defendant to attack that letter.

[00:29:26] Speaker 01:
Here, the government did both.

[00:29:29] Speaker 01:
The government timely provided the tribal verification letter and the accompanying certificate and

[00:29:36] Speaker 01:
called the custodian of records for the Choctaw Nation who testified that she queried those records and prepared a letter providing that information.

[00:29:47] Speaker 01:
Was that letter signed by Terry Stevens, the director, rather than the manager of the CDIB and membership department?

[00:29:55] Speaker 01:
Yes.

[00:29:56] Speaker 01:
Did the defense have an opportunity to question her about that?

[00:30:01] Speaker 01:
Absolutely, they did.

[00:30:02] Speaker 04:
But Counseling Wood, it appeared, it wasn't clear to me necessarily from our opinion, but they referred to what the tribe actually produced as the Indian blood certificate plus a certificate of authority, which appears to be the underlying document, which is what we don't have here.

[00:30:23] Speaker 04:
and the certificate of authority, authenticity, which is what we do have here.

[00:30:30] Speaker 04:
Unfortunately, we don't have the underlying document.

[00:30:33] Speaker 04:
It seems to me that at least it would.

[00:30:35] Speaker 04:
Yes, the issue was definitely noticed, but that's because they actually had the underlying document.

[00:30:41] Speaker 01:
Your Honor, I see my time is expiring.

[00:30:43] Speaker 01:
May I address that question?

[00:30:45] Speaker 01:
I think the problem here is sort of the incongruity and the lack of clarity about what

[00:30:52] Speaker 01:
a tribal status document looks like.

[00:30:55] Speaker 01:
And in Wood, it was a different tribe.

[00:30:58] Speaker 01:
And when we say the tribal certificate or the tribal status certificate, that is not a certificate that is kept somewhere at the tribe.

[00:31:07] Speaker 01:
And again, I can't remember which tribe it was in the case of Wood.

[00:31:11] Speaker 01:
But the records aren't a stack of certificates where you hand over, this is my tribal status certificate.

[00:31:18] Speaker 01:
Instead, the only way to prove

[00:31:21] Speaker 01:
the tribal status of an individual who is a member of the tribe is to query these records that are kept on a computer and provide to the Social Security Administration.

[00:31:32] Speaker 04:
Wait, wait, wait.

[00:31:33] Speaker 04:
She testified, she testified, Ms.

[00:31:36] Speaker 04:
Oaks, that they were in the vault.

[00:31:39] Speaker 01:
Again.

[00:31:39] Speaker 04:
What did she mean?

[00:31:40] Speaker 04:
I know you're distinguishing between the blood records and the membership.

[00:31:45] Speaker 01:
Yes, and I think that's a key distinction here.

[00:31:48] Speaker 01:
The CDIB records are issued by the tribe for the Bureau of Indian Affairs.

[00:31:54] Speaker 01:
And that may well be, and I think my children have, a card that says CDIB card.

[00:31:59] Speaker 04:
So that's what's in the vault, and that's what's being produced, and that's what should have been produced.

[00:32:04] Speaker 01:
But that wouldn't be sufficient to meet the Tribal Status Record.

[00:32:09] Speaker 04:
But you didn't even do that.

[00:32:10] Speaker 01:
Well, what we did was produce the information that's kept in the tribe's

[00:32:18] Speaker 01:
membership records, which encompasses both the defendant's certificate of Indian blood and their membership in the tribe.

[00:32:26] Speaker 01:
And to the extent that that information is kept in the regularly conducted activity of the tribe and that information, that record is made regularly in the course of that activity,

[00:32:45] Speaker 01:
that information coming from the tribe's database, whatever form it's presented in, particularly here, where a witness is presented and can be asked and given the defendant the opportunity to make the showing in 80365, whether this information, either the source of the information

[00:33:11] Speaker 01:
or the preparation of the record is untrustworthy.

[00:33:18] Speaker 01:
That is what 8036 paragraph 5 allows, is the court here could have excluded this record.

[00:33:27] Speaker 01:
had the defense taken this opportunity to question Ms.

[00:33:32] Speaker 01:
Oaks and say, wait, this was signed by someone else.

[00:33:34] Speaker 01:
Hey, where did you get this record?

[00:33:36] Speaker 01:
This record doesn't have the indicia of trustworthiness that's required to admit a business record under 8036.

[00:33:43] Speaker 01:
And for that reason, we think this record was properly admitted either independently as a business record or as an original of the business records that were kept in the course of the regularly conducted activity of the tribe.

[00:33:56] Speaker 01:
And for that reason, we would ask this court to affirm.

[00:34:02] Speaker 00:
All right, thank you.

[00:34:04] Speaker 00:
Robert, let's give the petitioner an additional 45 seconds.

[00:34:19] Speaker 02:
Thank you.

[00:34:19] Speaker 02:
The government bears the burden of establishing that an exception to the hearsay rule applies.

[00:34:27] Speaker 02:
There is no basis in this record to determine that this was electronically stored information to which rule 101D would apply in any way, shape, or form.

[00:34:38] Speaker 02:
With all respects to Ms.

[00:34:40] Speaker 02:
Alam, the sort of extra outside the record comments about how these records are used and what they are,

[00:34:48] Speaker 02:
are not evidence, they were not before this court.

[00:34:52] Speaker 02:
I myself am an enrolled member of this tribe.

[00:34:54] Speaker 02:
I have a card, it's a physical document.

[00:34:57] Speaker 02:
I don't know if that's what's held in their vault, but these physical documents do exist.

[00:35:01] Speaker 02:
And there's no basis in the record for finding that they do not.

[00:35:05] Speaker 02:
With respect to the certification, the certification letter actually does not say that the certification of authenticity that was attached, it does not state that this letter was produced in the regular course of business.

[00:35:17] Speaker 02:
When asked to identify what records it's certifying, it lists the tribal enrollment number.

[00:35:23] Speaker 02:
It doesn't list the letter.

[00:35:25] Speaker 02:
And so I don't think that this certificate can be used as a basis for finding that the business records exception is met with respect to this letter.

[00:35:34] Speaker 02:
It doesn't purport any space to do that.

[00:35:43] Speaker 02:
Judge Morris is correct.

[00:35:45] Speaker 02:
The rule requires that the records be kept in the ordinary course, not that they be produced in the ordinary course.

[00:35:50] Speaker 02:
I'm sure that the tribe does produce letters for all sorts of reasons at all sorts of times.

[00:35:54] Speaker 02:
But for admission against the defendant in a criminal trial does not necessarily have to be one of those reasons.

[00:36:00] Speaker 02:
And it's not listed as an exception under the hearsay rules.

[00:36:07] Speaker 00:
All right, thank you.

[00:36:08] Speaker 00:
This matter will be submitted.

[00:36:10] Speaker 00:
Thank Council for both sides, which both of you presented excellent briefs and excellent advocacy today.

[00:36:17] Speaker 00:
We appreciate it.