The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
Following his conviction after trial for unlawfully importing 100 kilograms of marijuana into the United States, possessing 100 kilograms of marijuana with the intent to distribute it, and fraudulently importing merchandise into the United States, the defendant filed a motion for a new trial pursuant to Fed. R. Crim. P. 33. The defendant argues that a new trial is warranted based upon the erroneous admission of certain evidence under the business record exception to the hearsay rule. Because the Court finds no error in the admission of the records at issue, the defendant's motion for a new trial is denied.
Rule 33(a) of the Federal Rules of Criminal Procedure provides that a trial court "may vacate any judgment and grant a new trial if the interest of justice so requires." The defendant bears the burden of showing that a new trial is required. See United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995). The ultimate test in a Rule 33 motion is whether 'it would be a manifest injustice to let the guilty verdict stand." See United States v. Guang, 511 F.3d 110, 119 (2d Cir. 2007) (quotation omitted); see also United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005). Further, where as here the defendant seeks a new trial based upon erroneous evidentiary rulings, a new trial should not be granted unless the error was "of sufficient magnitude to require reversal on appeal." See United States v. Ringwalt, 213 F. Supp. 2d 499 (E.D. Pa. 2002); see also 3 Charles A. Wright, et al., Federal Practice and Procedure: Criminal, § 556, at 530 (3d ed. 2004) ("Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.").
II. GPS and Cellular Telephone Records Properly Admitted Under 803(6)
The evidence at issue in this case consists of cellular telephone and satellite tracking device (aka "GPS") records. The defendant was a truck driver for TruckDepot Expedite (TruckDepot), a freight line trucking company based in Mississauga, Ontario, Canada. The charges against the defendant arose after the defendant was arrested while trying to enter the United States from Canada at the Peace Bridge in Buffalo, New York. Customs agents discovered a pallet of marijuana concealed in the back of the TruckDepot truck that he was driving.
At trial, the government sought to establish that the defendant picked up the truck from the TruckDepot trucking yard in Hanlan, Ontario, and then took an unscheduled detour to a place called Winona, Ontario (presumably to pick up the marijuana), before heading through Buffalo en route to the scheduled delivery place in Illinois. To support its theory, the government introduced evidence consisting of GPS records that purported to establish the whereabouts of the defendant's truck at various times on March 30, 2008, the date the defendant was arrested with the marijuana in his truck.
The government also introduced cellular telephone records from an employee of TruckDepot named Sonny Poonia. Poonia was the TruckDepot dispatcher who had arranged for the defendant to pick up the truck on the date at issue and drive it to Illinois. Poonia's cellular telephone records were introduced to contradict certain portions of a statement that the defendant had made to authorities upon his arrest.
Both the GPS and cellular telephone records were admitted under the business records exception to the hearsay rule, which provides:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
See Fed. R. Evid. 803(6). To lay a proper foundation for admission of a business record, the party seeking to have the record admitted must establish: (1) that the record was kept in the course of a regularly conducted business activity, and (2) that it was the regular practice of that business activity to make the record. See Phoenix Assocs. III v. Stone, 60 F.3d 95, 101 (2d Cir. 1995). "This foundation must be established by the 'testimony of the custodian or other qualified witness' of the record." Id. (quoting Rule 803(6)).
In this case, the witness who laid the foundation and testified as to the accuracy of the telephone and GPS records was Chanderkant Jain, the owner of TruckDepot. However, neither Jain nor TruckDepot prepared the records. Instead, the cellular telephone records at issue were created by "Rogers" a cellular telephone provider from Ontario, Canada. See Gov't Ex. 33, and the GPS records were created by an entity named "Qualcomm." See Gov't Ex. 34. The government did not offer a witness from either Rogers or Qualcomm.
As to the GPS records, Jain testified that each TruckDepot truck is equipped with a GPS system that monitors the whereabouts of the truck. The tracking device is located in the "tractor" or cab portion of the truck, not in the trailer. Jain testified that TruckDepot does not contract directly with Qualcomm, the GPS provider. Instead, TruckDepot "leases" or "rents" about 10 to 12 Qualcomm satellite tracking systems from another trucking ...