United States District Court, E.D. California
MEMORANDUM DECISION AFTER COURT TRIAL
(ECF Nos. 9, 10, 11)
STANLEY A. BOONE, Magistrate Judge.
On October 29, 2014, an information was filed charging Defendant Brandon Sage with operating a vehicle at a speed in excess of the speed limit in violation of 36 C.F.R. § 4.21(c). A court trial was conducted before the undersigned on March 19, 2015. The government is represented by Bayleigh Jordan Pettigrew. Defendant Sage is represented by Donna Marie Standard. Two witnesses testified at the trial: Ranger Samuel Salter who conducted the traffic stop and issued the citation, and Hanna Paulsen who was a passenger in Defendant's vehicle at the time of the traffic stop.
During the trial, defense counsel objected to the Government's admission of evidence regarding the certification of the radar device used by Ranger Salter during the incident on confrontation clause grounds. Upon conclusion of the testimony, the parties were ordered to file briefing on the admissibility of the certification. On March 27, 2015, the parties filed their briefs. The Government filed a reply to Plaintiff's brief on April 3, 2015. Having considered the evidence presented during the trial of this matter and the briefing filed by the parties, the Court issues the following order finding Defendant Sage guilty of a violation of 36 C.F.R. § 4.21(c).
Ranger Samuel Salter has been a park ranger since 2007. Ranger Salter was a seasonal ranger for the park service from 2007 through 2010 working at different parks throughout the United States. Ranger Salter has been working in Sequoia National Park since 2012 and is stationed at the Log Pole Subdistrict. Sequoia National Park is in the special maritime and territorial jurisdiction of the United States in the State and Eastern District of California.
Ranger Salter was on duty on August 16, 2014, in Sequoia National Park. At the beginning of his shift, Ranger Salter tested his radar unit using the 35 and 65 mile per hour tuning forks and determined that it was in proper working order. At approximately 4:00 p.m., Ranger Salter was in his patrol vehicle heading north on the General's Highway. After he crossed the Clover Creek Bridge, Ranger Salter observed a Toyota Tundra heading south on the General's Highway. The speed limit on the stretch of roadway is 35 miles per hour. Ranger Salter visually estimated the Toyota Tundra was travelling approximately 55 miles per hour. He checked his radar unit which displayed a target speed of 56 miles per hour.
After observing the vehicle was driving in excess of the speed limit, Ranger Salter observed that the vehicle braked and slowed to 40 miles per hour. Ranger Salter turned his vehicle around and stopped the vehicle. Ranger Salter identified the driver of the vehicle, Defendant Sage, by his driver's license. After the vehicle stop, Ranger Salter tested the radar unit by performing a calibration check and determined that it was working properly.
DISCUSSION AND DECISION
A. Certification of Radar Unit
During the trial, the Government presented evidence that the radar unit used by Ranger Salter to confirm his visual estimate of the speed of Defendant Sage's vehicle had been certified on August 16, 2012. The Government moved to enter into evidence a Rule 902(11) certificate (Exhibit 3(a)), and a "Certification Concerning Design & Construction of Speed Measuring Devices RADAR'" prepared by Edward Cole through the testimony of Officer Salter (Exhibit 3(b)). Defendant objected to the exhibit on numerous grounds which were overruled, however, the parties were granted the opportunity to brief the issue of whether admission of the certification would violate the Confrontation Clause of the Sixth Amendment.
Defendant objects on the grounds that the document is hearsay in that Mr. Cole is attempting to qualify himself as an expert by the document and is attesting to the accuracy of the radar unit at the time that Ranger Salter used it. Further, it is Defendant's position that the statements included in the certification are testimonial because they are attesting to the accuracy of the radar unit and the tuning forks. Defendant contends that, since Mr. Cole did not appear at trial, the document should not be admitted into evidence.
The Government contends that the certification is a business record under Federal Rules of Evidence 803(6); and therefore, the testimony of Ranger Salter alone is sufficient to admit it into evidence. As a secondary means of authenticating the document, the Government provided a 902(11) declaration from the author of the document. Further, the Government argues that under Crawford v. Washington, 541 U.S. 36 (2004) and it progeny, business records are admissible absent confrontation where they are not created for the purpose of litigation. The business record at issue here was created in the ordinary course of business related to calibration and accuracy of the radar unit and tuning forks and were not created for the purpose of litigation. The Government requests that the certification be entered into evidence.
1. The Certification is Admissible under the Business Record Exception to the Rule Against Hearsay
Federal Rule of Evidence 803(6) provides that business records are not excluded by the rule against hearsay regardless of whether the ...