IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

)

UNITED STATES OF AMERICA )

 )

 v. ) CR. NO. 2:06-CR-202-WKW

 )

EUGENE L. CLECKLER and )

KIM CLECKLER )

)

Brief Regarding Admissibility of Certain Documents

Yesterday, January 10, 2006, the United States moved for the admission of four

documents, which were marked as Government’s exhibits 10, 12, 25, and 101. Exhibits

10 and 12 are redacted activity records of IRS Auditing Agent Frank Brand. Exhibit 25 is

Brand’s workpaper regarding a calculation of the unreported income of Gene’s Marine. 

Exhibit 101 is a report regarding the audit, which Brand prepared before sending the case

to the IRS auditing appellate division. The United States take this opportunity to brief the

Court on its position on the admissibility of these documents. 

These documents should be admitted. The are probative of material issues in this

case. They are an admissible as an exception to the hearsay rule under Fed. R. Evid.

803(8). Rule 803(8) permits the introduction of various types of public records, including

records that are made pursuant to a duty imposed by law. Agent Brand testified that he

made these records pursuant to his duties as an IRS agent and that he is required to make

these reports.

Case 2:06-cr-00202-WKW-CSC Document 80 Filed 01/11/2007 Page 1 of 4
1 United States v. Childress, 24 Fed.Appx. 139, 142 (4th Cir. 2001) (citing to Hughes v.

United States, 953 F.2d 531, 539 (9th Cir.1992) (holding that Forms 4340 fall within the public

records exception to the hearsay rule)); see also United States v. Gabel, 73 Fed.Appx. 310, 311

(9th Cir. 2003). Moreover, in an analogous situation, the Eleventh Circuit noted that similar

EEOC reports may admissible, depending on their relevance. Barfield v. Orange County, 911

F.2d 644, 649 -50 (11th Cir. 1990).

2

 United States v. Stone, 604 F.2d 922, 925 -926 (C.A.Fla., 1979) (citing Ellis v. Capps,

500 F.2d 225, 226 n.1 (5th Cir. 1974) (allowing admission of official records compiled in

prison's “regular course of business”); United States v. Newman, 468 F.2d 791, 795-96 (5th Cir

1972) (same).

3 Stone, 604 F.2d at 926.

4 Id.

2

Defendants have argued that because Agent Brand testified that the documents are

not subject to public disclosure, they should be considered “nonpublic” and therefore

inadmissible under this Rule. This is not correct. While the Eleventh Circuit has not

addressed this exact issue, Courts in other Circuits have noted that “official IRS

documents, even if generated by a computer, are admissible as public records under

Federal Rule of Evidence 803(8).”1

The public/private distinction only applies to whether the person is working for the

public in their official capacity. As this Circuit has noted, “[t]his hearsay exception is

designed to allow admission of official records and reports prepared by an agency or

government office for purposes independent of specific litigation.”2

 In contrast, a public

official’s “personal statements” are inadmissible.3

 Courts have indicated that those

documents lack the same of trustworthiness which would prevent “admission of

litigation-oriented statements.”4

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5 United States v. Lee, 589 F.2d 980, 988 (9th Cir. 1979)

3

This only makes sense when one considers the rational for the public records

exception: “The rationale which underlies all of the public document exceptions to the

hearsay rules is that statements made by public officials in the discharge of their duties

are generally trustworthy.”5

 Thus, these documents should be admitted. They are

probative documents of material issues in this case and their admissibility is an exception

to the hearsay rule. 

Respectfully submitted this 11th day of January, 2006,

LEURA G. CANARY

United States Attorney

/s/ Christopher A. Snyder 

ANDREW O. SCHIFF CHRISTOPHER A. SNYDER

Deputy Chief, Criminal Division Assistant United State Attorney

One Court Square, Suite 201 One Court Square, Suite 201

Montgomery, AL 36104 Montgomery, AL 36104

Phone: (334) 223-7280 Phone: (334) 223-7280

Fax: (334) 223-7135 Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov E-mail: christopher.a.snyder@usdoj.gov 

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4

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

)

UNITED STATES OF AMERICA )

 )

 v. ) CR. NO. 2:06-CR-202-WKW

 )

EUGENE L. CLECKLER and )

KIM CLECKLER )

)

Certificate of Service

I hereby certify that on January 11, 2006, I electronically filed the foregoing with the

Clerk of Court, using the CM/ECF system, which will send notification of such filing to all

attorneys of record.

Respectfully submitted,

LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Christopher A. Snyder 

ANDREW O. SCHIFF CHRISTOPHER A. SNYDER

Deputy Chief, Criminal Division Assistant United State Attorney

One Court Square, Suite 201 One Court Square, Suite 201

Montgomery, AL 36104 Montgomery, AL 36104

Phone: (334) 223-7280 Phone: (334) 223-7280

Fax: (334) 223-7135 Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov E-mail: christopher.a.snyder@usdoj.gov 

Case 2:06-cr-00202-WKW-CSC Document 80 Filed 01/11/2007 Page 4 of 4