United States v. Conde
Unpublished (2025)
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Rule of Law:
Electronically generated records from a telecommunication company's database, compiled in response to a subpoena, can be admitted as self-authenticating business records under Federal Rules of Evidence 803(6) and 902(11) if the underlying data were created and maintained in the ordinary course of business, and their admission does not violate the Sixth Amendment Confrontation Clause.
Facts:
- New York City's Human Resources Administration (HRA) provided financial assistance, including mailing rent checks to qualifying individuals' landlords.
- If HRA rent checks were undeliverable, the Postal Service returned them to an HRA P.O. Box.
- HRA contracted Deluxe Delivery Systems, where Salifou Conde and Issiaga Sylla were employed as couriers, to retrieve mail from the HRA P.O. Box and deliver it to HRA's office.
- Between at least August 2016 and August 2019, more than 100,000 HRA rent checks per year were returned to the HRA office as undeliverable.
- Some HRA rent checks were fraudulently deposited into bank accounts not belonging to the named payees.
- Bank statements showed misappropriated HRA checks deposited into a Chase Bank checking account in Salifou Conde's name, from which cash was later withdrawn.
- ATM surveillance cameras captured video footage and still photographs of Salifou Conde engaging in transactions at ATMs where these misappropriated checks were deposited.
- Three credit card payments were made to Optimum for cable and internet service on an account in Salifou Conde's name and address, using credit cards linked to bank accounts into which misappropriated HRA checks had been deposited.
Procedural Posture:
- The government arrested Salifou Conde and several alleged coconspirators and indicted Conde on charges including wire fraud in violation of 18 U.S.C. § 1343, bank fraud in violation of 18 U.S.C. § 1344, and conspiracy to commit both frauds in violation of 18 U.S.C. § 1349.
- Prior to trial, the government moved for an in limine ruling in the United States District Court for the Southern District of New York to admit the Optimum Payment Record as a self-authenticating business record under Fed. R. Evid. 803(6) and 902(11).
- The district court, following a hearing on the motion, largely overruled Conde's objections and ruled that the Optimum Payment Record was admissible as a self-authenticating business record.
- A jury in the United States District Court for the Southern District of New York convicted Salifou Conde of wire fraud, bank fraud, and conspiracy to commit both frauds.
- The district court sentenced Conde principally to 55 months' imprisonment, to be followed by a five-year term of supervised release.
- Conde, as the Defendant-Appellant, appealed the amended judgment to the United States Court of Appeals for the Second Circuit, contending that the Optimum Payment Record was not properly admitted at trial and that its admission violated his Sixth Amendment right of confrontation.
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Issue:
Does an electronically generated record from a telecommunication company's database, compiled in response to a subpoena, qualify for admission as a self-authenticating business record under Federal Rules of Evidence 803(6) and 902(11), and does its admission violate the Sixth Amendment Confrontation Clause, even if it does not refer to underlying paper documents or methods of data retrieval?
Opinions:
Majority - Kearse, Circuit Judge
No, an electronically generated record from a telecommunication company's database, compiled in response to a subpoena, was properly admitted as a self-authenticating business record, and its admission did not violate Conde's Sixth Amendment confrontation rights. The Court found no error or abuse of discretion in the district court's decision to admit the Optimum Payment Record. The Altice custodian's sworn declaration certified that the Optimum records, which identified Conde as the customer for the three 2018 payments, were created and maintained in the regular course of Optimum's business, thereby satisfying the requirements of Federal Rules of Evidence 803(6) and 902(11) without the need for extrinsic evidence like original documents or specific employee testimony. The Court explicitly rejected Conde's argument that a 'record' under Rule 803(6) requires an underlying paper document, citing Evidence Rules 101(b)(4) and (6) and their Advisory Committee Notes, which broadly define 'record' to include 'data compilation' and 'electronically stored information' to keep pace with changing technology. The temporal focus for Rule 803(6) is when the data were originally recorded, not when they were retrieved or printed for litigation, meaning records compiled from existing business data in response to a subpoena remain admissible. The Court also found no lack of trustworthiness, upholding the district court's conclusion that Optimum's inability to find a match for older, queried transactions (the 'bottom chart') did not undermine the reliability of the data for the 2018 transactions. Finally, the Court reiterated that properly admitted business records under Rule 803(6) are not testimonial, and therefore the Confrontation Clause has no application. Conde's argument regarding the admission of the 'bottom chart' was deemed an invited error, as he had specifically requested its admission after the district court offered to redact it.
Analysis:
This case significantly reinforces the applicability and scope of the business records exception (Fed. R. Evid. 803(6)) and self-authentication (Fed. R. Evid. 902(11)) to electronically stored information, clarifying that no underlying physical paper documents are required. It establishes a clear precedent that records compiled from an existing electronic database in response to a subpoena do not lose their business record status, as long as the underlying data were regularly created and maintained in the ordinary course of business. The decision also solidifies that such properly admitted business records are generally not considered 'testimonial' for Sixth Amendment Confrontation Clause purposes, providing a vital framework for handling digital evidence in federal criminal proceedings and reducing the burden of producing foundation witnesses for routine electronic records.
