In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2318

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELMO CASH,

Defendant-Appellant.

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Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

03 CR 185—Larry J. McKinney, Chief Judge.

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ARGUED NOVEMBER 3, 2004—DECIDED JANUARY 12, 2005

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Before FLAUM, Chief Judge, andEASTERBROOK andSYKES,

Circuit Judges.

FLAUM, Chief Judge. Following a one-day trial, a jury

convicted defendant-appellant Elmo Cash of one count of

threatening a federal employee in violation of 18 U.S.C.

§ 115. Cash was sentenced to thirty-seven months of imprisonment and three years of supervised release. He now

appeals his conviction. For the reasons stated herein, we

affirm.

I. Background

Cash is a Vietnam combat veteran who was honorably

discharged from the Marine Corps in 1969. He suffers from
2 No. 04-2318

post-traumatic stress syndrome and has symptoms including flashbacks, sleep disorder, chronic anxiety, social isolation, and substance abuse. Cash qualifies for both pension

and disability benefits through the Department of Veterans

Affairs (“VA”).

Cash has been hospitalized on and off since 1999. Between June 19 and August 14, 2003, he was hospitalized in

Tomah, Wisconsin, and was qualified to receive a disability

benefit for this hospitalization period. Cash filed a claim for

the disability benefit in Wisconsin, and upon his release from

the hospital, returned to live in South Bend, Indiana.

Cash had several telephone conversations regarding his

benefits with Truly Fair, a Veterans Service Representative

at the Indianapolis office of the VA. Cash’s statements to

Fair during one of these telephone calls are the subject of

this criminal prosecution.

Fair’s duties at the VA include counseling veterans who

have questions about their benefits, both by telephone and

on a walk-in basis. Fair receives approximately 60-100

telephone calls per day. She is often required to pull a veteran’s file and research his case in order to answer particular questions.

Fair testified at trial that she documents all her telephone

conversations with veterans on a “report of contact” or a

“VA Form 119,” and that she completed such a report for

each of her conversations with Cash. The Form 119 contains

information about the date and type of contact, the veteran’s

name, file number, address, date of birth, and branch of service, as well as information about the conversation itself.

Fair testified that she documents phone conversations while

speaking with the veteran because as soon as she hangs up

from one call, the switchboard immediately sends her another.

She testified that her Form 119 reports are documented

thoroughly and include exact questions and quotations from

veterans.
No. 04-2318 3

Fair spoke with Cash on three separate occasions. At

trial, the government asked Fair to read portions of the

reports documenting her conversations with Cash pursuant

to the hearsay exception for past recollection recorded. See

Fed. R. Evid. 803(5). Defense counsel objected to Fair’s

testimony with regard to each of Cash’s statements. The

district court overruled the objections and allowed Fair to

read quotations of Cash’s statements from her reports. The

government did not formally move to admit these reports

into evidence.

Fair testified that on September 10, 2003, Cash called to

inquire about the status of his claim for the disability benefit to be paid in connection with his hospital stay. Fair advised Cash that the delay was due to a jurisdictional problem

and that his claim would have to be closed in Milwaukee

and then transferred to Indianapolis. Fair testified that

Cash grew angry upon learning this. Fair recorded on the

Form 119 several statements that Cash made to her. The

prosecutor questioned Fair about this Form 119, leading to

the following exchange:

Prosecutor: If a statement is in quotations on your

119 does that mean it was a direct quotation from the person’s mouth?

Fair: Yes, it does.

Prosecutor: Do you have that statement memorized

word-for-word?

Fair: No, I do not.

Prosecutor: And would any amount of reading that

document today and then putting it over

help refresh your recollection as to the

word-for-word—

Fair: No, it would not.
4 No. 04-2318

Prosecutor: Would looking at your report and being

able to read it be accurate as to the statement that he made at that time?

Fair: Yes, it would.

Prosecutor: I would ask you to read that statement

after you said about the jurisdiction and

then what his follow-up comment was.

Defense Your Honor, I object. The witness is tesCounsel: tifying to the content of the document. I

submit the proper procedure would be for

the witness to examine the document, then

surrender the document and testify as to

what her recollection is. The document is

not in evidence and it is not appropriate

for her to read that document to the jury

under the guise of refreshment of recollection.

The Court: I think she has testified that she can’t

turn it over and testify. From what she

has just said, this is the best we are going

to do.

Go ahead.

That means the objection is overruled and

you can proceed.

(Tr. at 17-18.)

With the benefit of the Form 119, Fair testified that Cash

said:

You don’t have jurisdiction over shit. You only have jurisdiction over your own life. I filled out all the paperwork in Wisconsin. The doctors filled out all the paperwork in Wisconsin. They said it was all there and would

not be a problem. Send me my damn money.

(Id. at 18-19.)
No. 04-2318 5

As Fair was about to testify about another statement Cash

made during their telephone conversation on September 10,

2003, defense counsel again objected. The following colloquy

ensued:

Defense Your Honor, I’m going to object. The

Counsel: Witness is referring to the document. The

same objection. And I would like the

record to note that she has the document

in front of her and is referring directly to

it.

The Court: I think it is probably fair to ask her if she

can remember what she said.

Prosecutor: I would also like to say on the record that

in addition to refreshing recollection, this

is more accurately past recollection recorded.

The Court: Okay.

(Id. at 19-20.)

After the district court overruled another objection on the

same ground, Fair testified that Cash said: “If I have to

come up there again I’m going to take all you fuckers out,”

and hung up. (Id. at 20-21.)

Fair testified that she spoke to Cash again on October 14,

2003. Fair called Cash to follow up on a letter he had sent

regarding his pension and the hospital stay. Federal

Protective Special Agent Mark Fullerton was present with

Fair during this telephone call. At trial, Fair stated that she

could not recall the defendant’s exact statements during

that conversation. Again over defense counsel’s objection,

the district court allowed Fair to read specific quotations

from her Form 119. Fair testified that Cash said:

You are right. I was really mad. I was going to go out

and buy me a shotgun and come to Indy to get my
6 No. 04-2318

money. . . . Miss Fair, I’m not fooling around with this.

I have stabbed a man before and I have stabbed my

girlfriend, sent her to the hospital. I won’t hesitate to

come there and hurt you.

(Id. at 27-28.)

On October 17, 2003, the date of the offense charged in

the indictment, Fair had her third telephone conversation

with Cash. Again, Fair testified in response to the prosecutor’s questions that she could not recall the statements

verbatim and that the document would not refresh her

memory as to the exact statements made by Cash. The district court again allowed Fair to read the statements from

the Form 119 over defendant’s objection. Fair testified that

Cash made the following statements to her:

You are right, it is going to be unfortunate for you and

whoever told you that, because you are going to die.

That $447 is enough to get me to Indy. When I come to

Indy I’m coming straight for you with a shotgun in my

hand. You are going to take me to the person who made

this decision and I’m going to blow his damn head off.

I’m starting with the security guard downstairs. I ain’t

fooling around, Miss Fair. You ain’t going to know when

I’m coming. You can call the FBI, or whoever, I don’t

care. You better get your people together cause I’m coming to get you.

I don’t care, I’m coming after you. I don’t care about dying. I have been dead for 20 years, in and out of VA

Hospitals, but you better care. You won’t know. I better

get my money, my 100 percent, at the end of the month,

or I’ll be there.

(Id. at 35-36.)
No. 04-2318 7

1 Subsequent to oral argument, Cash submitted a letter informing the Court that his appellate counsel failed to submit a supplemental brief raising several additional arguments, as Cash had

requested. While we have considered Cash’s letter and attachments, they do not change the outcome of this appeal.

II. Discussion

Cash has raised only one issue in this appeal.1

 He contends that the trial court erred in permitting Fair to read

excerpts of the Form 119 reports without formally introducing the documents into evidence. Cash argues that the

prosecutor and the court confused the distinct concepts of

refreshing a witness’s recollection and the hearsay exception for past recollection recorded, and that he was prejudiced because the jury was permitted to base its conviction

on evidence not properly before it.

We review a district court’s evidentiary rulings for an

abuse of discretion. United States v. Toro, 359 F.3d 879, 884

(7th Cir. 2004). We give special deference to these rulings

“because of the trial judge’s first-hand exposure to the witnesses and the evidence as a whole, and because of the

judge’s familiarity with the case and ability to gauge the

impact of the evidence in the context of the entire proceeding.” United States v. Suggs, 374 F.3d 508, 516 (7th Cir.

2004) (citations omitted). Only where the district court has

clearly abused its discretion, meaning that no reasonable

person could take the view adopted by the trial court, will

we reverse an evidentiary ruling. Id.

Contrary to Cash’s assertion, the record supports the

district court’s admission of this testimony pursuant to the

exception to the hearsay rule for “past recollection recorded”

provided in Federal Rule of Evidence 803(5). That rule

states in relevant part:

The following are not excluded by the hearsay rule,

even though the declarant is available as a witness:
8 No. 04-2318

(5) Recorded recollection. A memorandum or record

concerning a matter about which a witness once had

knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown

to have been made or adopted by the witness when the

matter was fresh in the witness’ memory and to reflect

that knowledge correctly. If admitted, the memorandum

or record may be read into evidence but may not itself

be received as an exhibit unless offered by an adverse

party.

Fed. R. Evid. 803(5).

“Under Rule 803(5), a document may be read to a jury if

(1) the witness once had knowledge about matters in the

document; (2) the witness now has insufficient recollection

to testify fully and accurately; and (3) the record was made

or adopted at a time when the matter was fresh in the witness’s memory and reflected his knowledge correctly.”

United States v. Schoenborn, 4 F.3d 1424, 1427 (7th Cir.

1993) (citations omitted); see also Collins v. Kibort, 143 F.3d

331, 338 (7th Cir. 1998).

These factors were met in each instance in which the

district court permitted Fair to read from her records. With

respect to each quotation that Fair read to the jury, she

testified that Cash made the statement directly to her

during their telephone conversation, that she could not remember the statement verbatim, and that she had recorded

Cash’s exact words during the course of the conversation.

The government thus laid the proper foundation, and the

district court did not abuse its discretion in permitting Fair

to read directly from the reports.

III. Conclusion

For the foregoing reasons, the conviction is AFFIRMED.
No. 04-2318 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-12-05