See 951 F.2d at 1489 (admitting documents upon finding that "these attestations satisfy most of the provisions of [section] 3505").
Finally, section 3505 "did not change the benchmark question in this and every situation involving the admission of documentary evidence: do the documents bear the indicia of reliability?" Strickland, 935 F.2d at 831. Documents are to be admitted under section 3505(a)(1) unless they are shown to be unreliable. As a general rule, certain types of records are nearly always found to be reliable. For instance, bank records are inherently reliable "because banks depend on keeping accurate records," and will be admitted unless "untrustworthiness" is shown. Miller, 830 F.2d at 1077; Gleave, 786 F. Supp. at 279.
Reliability has also been established simply by the record custodian's attestation. "Attestation by the record custodian pursuant to [section] 3505(c)(2) that he will be subject to criminal liability for a false certification affords the records sufficient degree of reliability." Gleave, 786 F. Supp. at 279; see also Chan, 680 F. Supp. at 526.
In Gleave, the defendants were charged with conspiracy, concealment of assets in bankruptcy, money laundering and other offenses. The court dealt directly with the issue of submitting bank records from the Cayman Islands into evidence. The court "took judicial notice of the fact" that the Cayman Islands "is a member of the United Kingdom with business practices like those in the United States" and therefore the records had the requisite indicia of reliability. Gleave, 786 F. Supp. at 279; cf. Chan, 680 F. Supp. at 525 (court, in finding hotel records reliable, stated Hong Kong is a British colony with business practices much like those in the United States).
In Miller, the court also dealt with documents from the Cayman Islands. In that case, the defendant was convicted of wire fraud and of swindling a recent German immigrant out of an inheritance of more than one million dollars. The court found reliability through the attestations of bank officials, indicating that bank records are independently accurate and are "the most common type of business record routinely used in our courts." 830 F.2d at 1077.
As previously discussed, see supra note 96, the Government supplied Bertoli with timely notice of its intent to introduce documents pursuant to section 3505. In addition, Bechard, acting as the record custodian of Greenshields, submitted two affidavits certifying the documents under section 3505. See Affidavit of Bechard, sworn to on 4 April 1991 (the "4 April 1991 Bechard Aff.) (attached as Ex. 14 to Government Response Brief); Affidavit of Bechard, sworn to on 28 August 1991 (the "28 Aug. 1991 Bechard Aff.") (also attached as Ex. 14 of Government Response Brief.)
The Bechard affidavits satisfied the certification requirements of 18 U.S.C. § 3505. First, each affidavit stated that Bechard was Resident Manager of Greenshields and that "as a result of [his] duties and responsibilities [he was] aware of the manner in which the books and records of the Company are kept." See 4 April 1991 Bechard Aff., PP 3-5; 28 Aug. 1991 Bechard Aff., P 1. Second, as to each document of Greenshields, the Bechard affidavits indicated the document (1) was made at or near the time of the occurrence of the matters set forth therein, (2) was made by a person with knowledge of the matters recorded or from information transmitted by persons with such knowledge, (3) was prepared and kept in the course of regularly conducted business and (4) was a duplicate of an original document of Greenshields. See 4 April 1991 Bechard Aff., PP 6-9, 12-15; 28 Aug. 1991 Bechard Aff., PP 4-5, 8-11; see Sturman, 951 F.2d at 1489; 18 U.S.C. § 3505(a)(1).
The reliability of the Greenshields documents was established by the record custodian's attestation. See Gleave, 786 F. Supp. at 279; see also Chan, 680 F. Supp. at 526. In fact, not only did the Bechard affidavits further state that it was the "regular practice" of Greenshields "to check the correctness of" and "to rely on" records of the kind being certified, see 4 April 1991 Bechard Aff., PP 10-11; 28 Aug. 1991 Bechard Aff., PP 6-7, but case law indicates a presumption of reliability surrounds bank documents in general and Cayman Islands bank documents in particular.
See Miller, 830 F.2d at 1077; Gleave, 786 F. Supp. at 279.
Accordingly, the Greenshields documents satisfied the requirements of 18 U.S.C. § 3505 and were admitted into evidence. See Trial Transcript at 3223-24.
b. Documents From the Coleman Deposition
Bertoli objected to a number of documents introduced during Coleman's deposition which the Government described as "about 30 pages of handwritten notes contained in the Paget-Brown document production." Government Response Brief at 109; see also Bertoli Objections Brief at 17-18. These documents were divided as follows: (1) Document SJC 14 ("Document 14"), pages 2491-2515; (2) Document SJC 1.1 ("Document 1.1"), pages 095-096; (3) Document SJC 2.1 ("Document 2.1"), page 270; (4) Document SJC 3.1A ("Document 3.1A"), page 544; and (5) Document SJC 5.1 ("Document 5.1"), page 980. See Bertoli Objections Brief at 18-19.
With regard to Document 2.1, Document 3.1A and Document 5.1, Bertoli's objection was moot because the Government indicated it would not -- and in fact did not -- offer these documents into evidence. See Government Response Brief at 130. The objections to the other two documents was overruled for the following reasons.
Document 14 was admissible pursuant to 18 U.S.C. § 3505.
Document 14 was accompanied a certification of Coleman which satisfied the requirements of section 3505. See Further Supplemental Affidavit of Coleman, sworn to 10 Jan. 1992 (the "10 Jan. 1992 Coleman Aff."). The 10 Jan. 1992 Coleman Aff. stated that Document 14(1) consisted of notes made by Coleman himself based upon information received as Chief Executive Officer of Paget Brown, thereby satisfying the personal knowledge requirement of section 3505, (2) was made in the regular course of Paget Brown's business and were obtained from Paget Brown's archives, (3) was made by Coleman as part of his ordinary practice of making file notes and (4) was copied from original Paget Brown documents. See 10 Jan. 1992 Coleman Aff., PP 2-4; see also 18 U.S.C. § 3505(a)(1).
The 10 Jan. 1992 Coleman Aff. stated Document 14 "was not made contemporaneous with the underlying events but [was] a short history of the matters contained therein made by [Coleman] in late 1989." 10 Jan. 1992 Coleman Aff., P 6. This statement, however, did not defeat the 10 Jan. 1992 Coleman Aff. as a valid certification pursuant to 18 U.S.C. § 3505(a)(1). First, the 10 Jan. 1992 Coleman Aff. substantially complied with the requirements of section 3505, which was all that was required.
See Sturman, 951 F.2d at 1489. Second, the documents of Paget Brown underlying the 10 Jan. 1992 Coleman Aff. were independently reliable. See Strickland, 935 F.2d at 830-31. Not only did the documents benefit from the presumption of validity previously discussed,
but the testimony of Coleman during the First Set of Cayman Islands Depositions corroborated the substance of those notes. See, e.g., Coleman Dep. Tr. at 86-87, 92-98, 125, 129 (corresponding to pages 2491-96 of Document 14). Accordingly, Document 14 was admitted pursuant to 18 U.S.C. § 3505 and Bertoli's objection was overruled.
Document 1.1 was also admitted pursuant to 18 U.S.C. § 3505.
Like Document 14, Document 1.1 was supported by the 10 Jan. 1992 Coleman Aff. which, as already discussed, satisfied the requirements of section 3505(a)(1)(A)-(C). Moreover, there was no question Document 1.1 satisfied the requirement of section 3505(a)(1)(D) that the document be made "near" the time of the occurrence set forth in the document. See 18 U.S.C. § 3505(a)(1)(D). As Bertoli conceded, Document 1.1 was written on 14 February 1990, little more than two weeks after the occurrence of the events discussed in the document. See Bertoli Objections Brief at 18. Similarly, there was no question that Document 1.1 was reliable.
c. Documents of Euro Bank
Bertoli objected to three Euro Bank documents referred to during Rodney Bond's deposition: Government exhibits 2453(aa) ("Exhibit 2453(aa)"), 2453(y) ("Exhibit 2453(y)") and Exhibit 2500. See Bertoli Objections Brief at 19. Bertoli's objection to the first two documents was as follows:
Rodney Bond testified at page 119/121 and page 230/231 that without the underlying documentation, there [was] no way of determining what the debits and credits relate to on the statements, and exhibit 2453(aa) and 2453(y) would not be admitted.