FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-30091 Plaintiff-Appellee,

D.C. No.

v.  CR-03-00070-EFS

WILLIAM WEILAND,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Argued and Submitted

March 8, 2005—Seattle, Washington

Filed August 24, 2005

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge Tashima

11307
COUNSEL

Stephen R. Hormel, Federal Defenders of Eastern Washington

and Idaho, Spokane, Washington, for the defendant-appellant.

James A. McDevitt, United States Attorney, Stephanie J. Lister, Assistant United States Attorney, Spokane, Washington,

for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge: 

Defendant-Appellant William Weiland appeals his conviction and sentence for one count of possessing two firearms

and ammunition as a convicted felon, in violation of 18

U.S.C. § 922(g)(1), and one count of forfeiture, pursuant to 18

U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Weiland argues: 1)

that Federal Rule of Criminal Procedure 41(b) requires suppression of the firearms and ammunition seized during a

search of his home because the warrant that authorized the

search was not requested by a “federal law enforcement officer” or an “attorney for the government;” 2) that records of

his four Oklahoma Second Degree Burglary convictions

should be excluded under Federal Rules of Evidence 802 and

901(a), 28 U.S.C. § 1738, and the Confrontation Clause of the

Sixth Amendment; 3) that the admission of four convictions

to prove Weiland’s status as a felon when only one was

required was unduly prejudicial under Federal Rule of Evi11312 UNITED STATES v. WEILAND
dence 403; 4) that the government did not establish that his

convictions for Oklahoma Second Degree Burglary met the

definition of “generic burglary” under Taylor v. United States,

495 U.S. 575, 599 (1990); 5) that Weiland’s 188-month sentence under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), violated his Sixth Amendment right to a jury trial;

and 6) that the district court abused its discretion in denying

a downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm the district court. 

I

On February 19, 2003, Spokane County Sheriff’s Office

Detective Michael D. Ricketts applied for and received a federal search warrant from a United States magistrate judge for

the home of William Weiland at 42313 North Sherman Road

in Spokane County, Washington. When he applied for the

warrant, Ricketts had a “Special Deputation Appointment”

from the U.S. Marshals Service permitting him, “under

authority delegated by the Attorney General, to perform the

duties of the Office of Special Deputy United States Marshal

as directed by an appropriate official of the United States

Marshals Service or some other appropriate Federal Official

as so designated.” The appointment indicated that the Bureau

of Alcohol Tobacco and Firearms (ATF) was Ricketts’s sponsoring agency and specifically authorized Ricketts “[t]o seek

and execute arrest and search warrants supporting a federal

task force.” The appointment further stated that Ricketts was

“[n]ot authorized to participate in federal drug investigations

unless also deputized by DEA or FBI” and that the special

deputation did not constitute formal employment by a federal

agency. 

Later that afternoon, law enforcement officers executed the

search warrant for Weiland’s property and seized a 9 mm

HiPoint Rifle, a .22 caliber Winchester rifle, ammunition, a

small marijuana grow, and computer files that contained child

UNITED STATES v. WEILAND 11313
pornography. The government subsequently charged Weiland

with possessing firearms and ammunition as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1), and forfeiture of

the firearms and ammunition, pursuant to 18 U.S.C. § 924(d)

and 28 U.S.C. § 2461(c). The indictment also gave notice of

the government’s intent to pursue enhanced sentencing under

the Armed Career Criminal Act, 18 U.S.C. § 924(e). 

Before trial, Weiland moved to suppress the firearms found

in his house, arguing that the warrant affidavit completed by

Ricketts was defective because his deputation as a Special

Deputy United States Marshal did not make Ricketts a “federal law enforcement officer” within the meaning of Federal

Rules of Criminal Procedure 41(b) and 41(a)(2)(C). In the

suppression hearing, Weiland called Ricketts, and Ricketts

testified that, with the assistance of his secretary, he personally prepared the warrant affidavit based upon information

received from other sheriff’s deputies.1 Ricketts then notified

the Drug Enforcement Agency (DEA) and ATF Special Agent

Darrell Bone that he planned to apply for a federal warrant,

but no one from either agency assisted him in drafting the

warrant affidavit. Ricketts, however, did present the warrant

affidavit to Assistant U.S. Attorney Tom Rice, who reviewed

it, made minor changes, and initialed it “TOR.” Someone

from the U.S. Attorney’s office notified the magistrate that

Ricketts would be coming with a warrant application. 

At the suppression hearing, Ricketts stated that he understood that the purpose of his special deputation was to “support the ATF office in their investigations and to conduct

investigations involving federal firearms violations . . . [t]o

obtain search warrants, to be able to be obtain [sic] search

warrants and execute arrest warrants.” Although Ricketts

1Before the grand jury, Ricketts testified that he had received information from special agents of the ATF and other federal and state officials.

Ricketts also testified that the purpose of his warrant affidavit was to

search for marijuana, firearms, and child pornography. 

11314 UNITED STATES v. WEILAND
could have gotten a state search warrant, he testified that he

chose to apply for a federal warrant because of the high probability that the case would be referred to the U.S. Attorney for

federal prosecution. Ricketts also testified that, in his view,

his investigation was primarily regarding federal firearms violations that fell within ATF jurisdiction, rather than mainly

concerning federal drug crimes. After the hearing, the district

court denied the motion to suppress, holding: 1) that Ricketts

did not violate Rule 41(b) because he was acting pursuant to

his special deputation, and 2) that even if Ricketts had violated the Rule, suppression would not be warranted. 

Before trial, the government submitted a memorandum on

the admissibility of “penitentiary packets.” The “penitentiary

packet” relating to Weiland contained four unredacted Oklahoma Second Degree Burglary convictions, fingerprints from

Weiland, a photograph of Weiland, and a facsimile transmittal

from Paula Menifee at the Offender Records office to the

Oklahoma State Bureau of Investigation (OSBI) requesting

“any fingerprints, photographs, and rap sheets” on Weiland.

In addition, the packet contained an official certification

which stated:

I, RICHARD E. GREENE hereby certify: I am the

manager of the Offender Records Unit, of the Oklahoma Department of Corrections, the agency having

jurisdiction over all adult correctional facilities of

the state of Oklahoma; that in my legal custody as

such officer, are the original files and records of persons heretofore committed to the Department of Corrections; that the 1) fingerprint card, 2) photograph,

and 3) commitment documents attached are copies

of the original records of persons heretofore committed to said Department of Corrections, and who

served a term of incarceration/supervision therein;

that I have compared the foregoing and attached copies with their respective originals now on file in my

UNITED STATES v. WEILAND 11315
office and each thereof contains and is a full, true,

and correct copy from its said original. 

Accompanying Greene’s declaration was a certificate under

seal from the Secretary of State of the State of Oklahoma

attesting that Richard E. Greene was the Manager, Offender

Records Unit of the Oklahoma Department of Corrections,

that Greene was authorized to sign the attached certificate,

and that Greene’s signature on the certificate was genuine.

The defendant submitted a memorandum opposing the admission of the “penitentiary packet” on the first day of the trial.

At trial, the government moved to admit the documents in

the “penitentiary packet” as self-authenticating public records

pursuant to Federal Rule of Evidence 902(4) and as hearsay

subject to the exception for public records and reports pursuant to Rule 803(8). Weiland objected, and the district court

sustained the objection, ruling that the “penitentiary packet”

was not sufficiently reliable and was thus inadmissible

because the facsimile from Paula Menifee to the OSBI suggested that the records were not in fact in the custody of

Greene. 

Following this ruling, the government then attempted to

authenticate the “penitentiary packet” and four other certified

copies of the Oklahoma convictions as records of a regularly

conducted activity pursuant to Rule 902(11) and argued that

they were subject to the business records hearsay exception in

Rule 803(6). As foundation for the business records exception, the government provided a blank form and said that it

would be filled out by Nancy A. Young, Administrative Programs Officer, OSBI. Weiland objected on the basis that he

had not received notice of the government’s intent to authenticate the “penitentiary packet” and certified convictions as

business records and that the admission of these documents

would violate his right to confront and cross-examine Young.

The district court overruled the objection and conditionally

admitted both the “penitentiary packet” and the certified

11316 UNITED STATES v. WEILAND
records of conviction pending the receipt of Young’s affidavit. The completed affidavit arrived immediately before the

case went to the jury, and contained a statement from Young

stating that the records were made by a person with first-hand

knowledge in the course of a regularly conducted activity.

The district court then unconditionally admitted all four of the

certified convictions and the “penitentiary packet” into evidence. 

Weiland further objected to the admission of multiple Oklahoma Second Degree Burglary convictions, arguing that,

because the government needed to prove only one conviction

to establish his status as a felon, the admission of the second,

third, and fourth convictions was more prejudicial than probative in violation of Rule 403. The district court overruled the

objection and admitted all four convictions without redacting

them. The district court did, however, instruct the jury that the

Oklahoma records had “been admitted for a limited purpose”

and that the jury should “consider them only in determining

whether the government ha[d] met its burden of proving the

elements of the crime charged in the Superceding Indictment.” The district court further instructed the jury that it

should “not consider a prior conviction as evidence of guilt of

the crimes for which the Defendant is now on trial, other than

as to proof of one of the elements of those crimes.” The jury

convicted Weiland of possessing a firearm as a convicted

felon, in violation of § 922(g)(1). 

At sentencing, the government presented both a Judgment

and Sentence on Plea of Guilty and an Information for each

of the four Oklahoma Second Degree Burglary convictions.

The four Informations detailed burglaries that occurred during

a one-week Oklahoma crime spree in January 1976. Each

Information provided that Weiland had forcibly entered a

building with the intent to take unlawfully the personal property of another. The district court ruled that these documents

established that Weiland had been convicted of a crime that

met the elements of generic burglary under the modified cateUNITED STATES v. WEILAND 11317
gorical approach. Based upon the four Oklahoma Second

Degree Burglary convictions, the district court sentenced

Weiland to 188 months imprisonment pursuant to the Armed

Career Criminal Act, 18 U.S.C. § 924(e). The district court

also denied Weiland’s motion for a downward adjustment for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

Weiland timely appeals his conviction and sentence. 

II

Weiland argues that the firearms seized pursuant to the federal search warrant should be suppressed as the fruits of a violation of Federal Rule of Criminal Procedure 41(b) because

Ricketts was neither a “federal law enforcement officer” nor

an “attorney for the government” at the time that he applied

for the warrant.2 To prevail on his motion to suppress, Weiland must demonstrate that: A) Ricketts made a “request” for

a federal search warrant and was not then a “federal law

enforcement officer,” and B) any assumed violation of Rule

41(b) rose to the level of a constitutional violation, resulted in

prejudice to Weiland, or was the result of intentional and

deliberate disregard of Rule 41. United States v. Johnson, 641

F.2d 652, 655-57 (9th Cir. 1980). 

A

[1] Ordinarily, a state law enforcement official violates

Rule 41 by applying for and obtaining a federal search warrant. Id. at 656; Luk, 859 F.2d at 673. Rule 41 directs that a

warrant may issue only “[a]t the request of a federal law

enforcement officer or an attorney for the government,” FED.

R. CRIM. P. 41(b), and defines a “federal law enforcement

officer” as “a government agent (other than an attorney for the

government) who is engaged in enforcing the criminal laws

2We review de novo whether a person requesting a warrant is a “federal

law enforcement officer.” See United States v. Luk, 859 F.2d 667, 670 (9th

Cir. 1988). 

11318 UNITED STATES v. WEILAND
and is within any category of officers authorized by the Attorney General to request a search warrant.” FED. R. CRIM. P.

41(a)(2)(C). The government argues that, at the time Ricketts

applied for the federal warrant to search Weiland’s home, he

was a “federal law enforcement officer” by reason of his position as a Special Deputy U.S. Marshal and that, in any event,

it was the U.S. Attorney, and not Ricketts, who made the “request” for a federal search warrant.3

[2] There is no direct precedent in our circuit regarding

whether a state or local law enforcement official becomes a

“federal law enforcement officer” for Rule 41 purposes by

reason of a deputation as a Special Deputy U.S. Marshal. We

have, however, in the context of a criminal prosecution for

assaulting a federal officer, held that a state official specially

deputized as a U.S. Marshal was an “officer . . . of the United

States” within the meaning of 18 U.S.C. § 111 even though he

was not a federal “employee” within related provisions of the

United States Code. United States v. Diamond, 53 F.3d 249,

251-52 (9th Cir. 1995); see also United States v. Bryant, 117

F.3d 1464, 1467-69 (D.C. Cir. 1997) (holding that a state law

enforcement agent was subject to criminal sanction for impersonating a federal officer when that agent falsely claimed to

be a Special Deputy U.S. Marshal). We thus consider as a

matter of first impression whether, for Rule 41 purposes, a

deputation as a Special Deputy U.S. Marshal confers “federal

law enforcement officer” status on a state law enforcement

official, and we hold that it does. 

[3] Ricketts’s position as a Special Deputy U.S. Marshal

made him a “federal law enforcement officer” within the

meaning of Rule 41. The statutes and regulations give the

Marshals authority to deputize local law enforcement officers

to perform the functions of Deputy U.S. Marshals, 28 U.S.C.

3Because we hold that Ricketts was a “federal law enforcement officer”

within the meaning of Rule 41, we do not reach the question whether the

U.S. Attorney, Ricketts, or both “requested” the warrant. 

UNITED STATES v. WEILAND 11319
§ 566(c); 28 C.F.R. § 0.112, and U.S. Marshals have long had

the authority to seek and execute federal search warrants, 28

U.S.C. §§ 564, 566. When Ricketts applied for the warrant,

his affidavit indicated that he authored the warrant affidavit in

his capacity as a Special Deputy U.S. Marshal, not in his

capacity as a local law enforcement official. As such, Ricketts

was a “government agent . . . engaged in enforcing the criminal laws” as authorized by the Attorney General, and his

request for a warrant did not violate Rule 41. FED. R. CRIM.

P. 41(a)(2)(C).4

B

[4] Even if we were to conclude that Ricketts was not a

“federal law enforcement officer” and that a Rule 41 violation

occurred, suppression of the firearms and ammunition seized

during the search of Weiland’s home would not be warranted.

As we recently held in United States v. Martinez-Garcia:

Suppression of evidence obtained through a search

that violates Federal Rule of Criminal Procedure 41

is required only if: 1) the violation rises to a ‘constitutional magnitude;’ 2) the defendant was prejudiced, in the sense that the search would not have

occurred or would not have been so abrasive if law

enforcement had followed the Rule; or 3) officers

acted in ‘intentional and deliberate disregard’ of a

provision in the Rule. 

397 F.3d 1205, 1213 (9th Cir. 2005) (quoting United States

v. Crawford, 657 F.2d 1041, 1047 (9th Cir. 1981)); Johnson,

641 F.2d at 656. 

4Our holding will increase the degree of reliability in the warrant system. When state officials seek and execute search warrants in their capacity as specially deputized federal law enforcement officers, they will be

subject to the same Rule 41 and other standards as all other federal law

enforcement officers. Rea v. United States, 350 U.S. 214, 217 (1956)

(“The obligation of the federal agent is to obey the Rules.”). 

11320 UNITED STATES v. WEILAND
[5] None of these factors is present here. First, Weiland

does not — and could not — contend that Ricketts violated

the Fourth Amendment by applying for a search warrant in his

role as a state law enforcement officer deputized as a Special

Deputy U.S. Marshal. Second, there is no evidence that Weiland was prejudiced by Ricketts’s decision to apply for a federal, rather than state, search warrant. The search of

Weiland’s home almost surely would have proceeded as it did

absent any assumed Rule 41 violation: Ricketts testified

expressly that he could have gotten a state search warrant, but

elected not to do so because of the probability that this case

would be referred to the office of the U.S. Attorney. Third,

the record reflects that neither Ricketts nor any other law

enforcement officer acted in “intentional and deliberate disregard” of Rule 41. Martinez-Garcia, 397 F.3d at 1213 (quoting

Crawford, 657 F.2d at 1047). Ricketts had an appointment as

a Special Deputy U.S. Marshal that authorized him “[t]o seek

and execute arrest and search warrants supporting a federal

task force,” and, at the suppression hearing, Ricketts testified

that he believed that he was authorized to seek search warrants. Ricketts also presented the warrant affidavit to an

Assistant U.S. Attorney, and notified both ATF Agent Bone

and the DEA that he planned to apply for a federal search

warrant for Weiland’s home. We hold that Ricketts did not act

in intentional and deliberate disregard of Rule 41. The district

court correctly concluded that, even assuming a violation of

Rule 41, suppression of the firearm and ammunition seized

during the search of Weiland’s home would be unwarranted.

III

Weiland contends that the records of four Oklahoma Second Degree Burglary convictions, the fingerprints and the

photograph contained in the “penitentiary packet” were inadmissible under Federal Rules of Evidence 901(a), 902, 802

and 803 and that these documents were received into evidence

in violation of 28 U.S.C. § 1738 and the Confrontation Clause.5

5As a threshold issue, the government argues that Weiland was precluded from objecting to the admissibility of the convictions at trial and

UNITED STATES v. WEILAND 11321
We consider the arguments based on authentication, hearsay,

§ 1738, and the Confrontation Clause in turn. 

A

Weiland argues that the fingerprints, photograph and four

records of conviction for Oklahoma Second Degree Burglary

were not properly authenticated, as required by Federal Rule

of Evidence 901(a).6 The government counters that the

records were self-authenticating under Rules 902(4) and

902(2), governing certified copies of public records, and Rule

902(11), governing certified domestic records of regularly

conducted activity. Although we reject the argument that the

records of conviction were self-authenticating under Rule

902(11), we agree that the records of conviction were selfauthenticating under Rules 902(4) and 902(2). 

[6] With respect to Rule 902(11), the documents in the

“penitentiary packet” were not properly authenticated under

the exception for certified domestic records of regularly conducted activity for three reasons. First, a party may not circumvent the requirements for the authentication of public

records outlined in Rule 902(4) by invoking Rule 902(11).

Rule 902(4), not Rule 902(11), describes the manner for

establishing the authenticity of public records. Second, the

plain language of Rule 902(11) requires that: 

was required to raise these issues in a pretrial suppression motion. The district court rejected this argument, and we agree with its analysis. In general, it is permissible to raise an evidentiary objection to an exhibit at the

time it is offered for admission. 

6When, as here, the issue of proper authentication involves a significant

question of fact, we review for abuse of discretion a district court decision

to admit evidence as properly authenticated. United States v. MateoMendez, 215 F.3d 1039, 1041-42 (9th Cir. 2000). We review de novo a

district court interpretation of an authentication rule. Id.

11322 UNITED STATES v. WEILAND
A party intending to offer a record into evidence

under this paragraph must provide written notice of

that intention to all adverse parties, and must make

the record and declaration available for inspection

sufficiently in advance of their offer into evidence to

provide an adverse party with a fair opportunity to

challenge them. 

In this case, it is undisputed that the government never provided written notice to Weiland of its intention to offer the

records of conviction as self-authenticating under Rule

902(11) and that the government did not make Young’s declaration available for inspection until after its conditional introduction into evidence.7

 Such lack of notice violates both the

letter and the spirit of Rule 902(11) and provides the party

opposing admission with substantially no opportunity to verify the authenticity of either the records or any foundational

testimony or affidavits. Finally, even if the government could

have circumvented the requirements of Rule 902(4) by invoking Rule 902(11), the certification provided by Young, which

was neither under seal pursuant to Rule 902(1) nor itself certified as authentic by an official with a seal pursuant to Rule

902(2), was not sufficient to provide proof of the authenticity

7The government maintains that it should be excused from its nearly

complete failure to comply with the plain language of Rule 902(11)

because Weiland did not make a pretrial motion to suppress the convictions contained in the “penitentiary packet.” This argument lacks merit.

Rule 902(11) does not contain an exception to the notice requirement for

cause shown — good or otherwise. Also, Weiland objected to the offer of

the photograph, the fingerprints, the convictions and their certification at

an appropriate time: when the government offered that exhibit at trial. The

government, no less than any other litigant, is required to ensure that evidence it intends to offer is admissible, to anticipate objections from opposing parties, and to comply with the Federal Rules of Evidence. A

defendant is not required to give the prosecution advance notice of his or

her intent to object for lack of proper authentication or violation of the

prohibition on hearsay; indeed, in many cases, due to the inability completely to foresee foundational testimony, such an advance objection

would be impossible. 

UNITED STATES v. WEILAND 11323
of the records of conviction, the fingerprints, and the photograph, which we again emphasize were public records that fall

within Rule 902(4). Accordingly, we hold that the district

court erred in grounding the admission of the “penitentiary

packet” and certified convictions on Rule 902(11). 

[7] Nevertheless, although the district court erred in admitting the contents of the “penitentiary packet” under Rule

902(11), we hold that the records were properly authenticated

because the documents in the “penitentiary packet” were selfauthenticating public records admissible under Rules 902(2)

and 902(4).8 Mateo-Mendez, 215 F.3d at 1044-45; United

States v. Huffhines, 967 F.2d 314, 320 (9th Cir. 1992). Federal

Rule of Evidence 902(4) provides for the self-authentication

of:

A copy of . . . a document authorized by law to be

recorded or filed and actually recorded or filed in a

public office, including data compilations in any

form, certified as correct by the custodian or other

person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this

rule or complying with any Act of Congress or rule

prescribed by the Supreme Court pursuant to statutory authority. 

FED. R. EVID. 902(4). 

[8] The records of conviction, the photograph of Weiland,

and his fingerprints fall within the self-authentication provisions of Rule 902(2). Pursuant to Rule 902(4), the records

were certified as correct by Greene, who also stated that he

8Although we hold that the district court erred in admitting the “penitentiary packet” as a self-authenticating business record pursuant to Rule

902(11), we may affirm the district court if the records were properly

authenticated under any other provision. See United States v. LoyolaDominguez, 125 F.3d 1315, 1318 (9th Cir. 1997). 

11324 UNITED STATES v. WEILAND
was the legal custodian of the records and that he had compared the certified copies to their originals. Pursuant to Rule

902(2), the Secretary of State of the State of Oklahoma, under

seal, certified that Greene was authorized to execute the certificate and that Greene’s signature was genuine. This suffices

to establish that the records were what they purported to be,

fulfilling the purpose of our inquiry into the authentication of

the documents in the “penitentiary packet.” FED. R. EVID.

901(a). 

[8] The facsimile included in the “penitentiary packet,”

apparently from Greene’s office to Paula Menifee in the

OSBI, does not change our analysis. The relevant inquiry is

whether Greene had the records in his legal custody or was an

“other person authorized to make the certification,” not

whether the records were stored in his personal physical custody. FED. R. EVID. 902(4); United States v. Combs, 762 F.2d

1343, 1348 (9th Cir. 1985); see also Yaich v. United States,

283 F.2d 613, 617 (9th Cir. 1960). If Greene had the records

in his legal custody and certified that they were accurate in

compliance with Rule 902(1), 902(2), or 902(3), they were

properly authenticated under Rule 902(4). No provision of the

Federal Rules of Evidence requires that Greene also be shown

to have kept the records in his physical custody at all times,

so long as the records were “actually recorded or filed in a

public office.” FED. R. EVID. 902(4). Federal Rule of Civil

Procedure 44(a)(1), incorporated into Federal Rule of Criminal Procedure 27, accords with our analysis. FED. R. CIV. P.

44(a)(1) (“An official record kept within . . . any state . . . may

be evidenced by an official publication thereof or by a copy

attested by the officer having the legal custody of the record

. . . and accompanied by a certificate that such officer has the

custody. The certificate . . . may be made by any public officer having a seal of office and having official duties in the

district or political subdivision in which the record is kept,

authenticated by the seal of the officer’s office.”). Moreover,

even if Greene were not the official custodian of the records

contained in the “penitentiary packet,” the affidavit, under

UNITED STATES v. WEILAND 11325
seal, provided by the Secretary of State of the State of Oklahoma, establishes that Greene was a “person authorized to

make the certification.” FED. R. EVID. 902(4). We hold that

the records contained in the “penitentiary packet” were selfauthenticating public records under Rules 902(4) and 902(2).

B

Weiland next maintains that, even if properly authenticated,

the documents contained in the “penitentiary packet” should

have been excluded as inadmissible hearsay pursuant to Federal Rule of Evidence 802.9

 The government responds that the

convictions are admissible under the hearsay exceptions enunciated in Rules 803(6), 803(8), and 803(22) and that the fingerprints and photograph are admissible under Rules 803(6)

and 803(8). 

[9] We begin by rejecting the argument that the convictions, fingerprints and photograph were properly admitted

pursuant to the business records hearsay exception in Rule

803(6). The law of this circuit has long established that public

records, including records of conviction, must be admitted, if

at all, under Rule 803(8), or, in some cases, under a specific

hearsay rule, such as Rule 803(22), governing the admission

of prior convictions. United States v. Orellana-Blanco, 294

F.3d 1143, 1149 (9th Cir. 2002); United States v. PenaGutierrez, 222 F.3d 1080, 1086-87 (9th Cir. 2000) (citing

United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979)).

The government may not circumvent the specific requirements of Rule 803(8) by seeking to admit public records as

business records under Rule 803(6). Nor may the government

attempt to combine Rules 803(6) and 803(8) into a hybrid rule

to excuse its failure to comply with either. See United States

9We review de novo a district court construction of a hearsay rule, and

we review for an abuse of discretion a district court decision to admit evidence under a hearsay exception. United States v. Hernandez-Herrera,

273 F.3d 1213, 1217 (9th Cir. 2001). 

11326 UNITED STATES v. WEILAND
v. Doyle, 130 F.3d 523, 547 (2d Cir. 1997). Also, as we previously discussed in Part III.A., the government failed to

authenticate properly the documents in the “penitentiary packet” under Rule 902(11) and did not authenticate the affidavit

of Nancy Young. Excluding the improperly admitted Young

affidavit, the government has presented no evidence to establish that the convictions, fingerprints and photograph fall

within the scope of Rule 803(6), and the district court erred

in admitting these documents on that ground. 

[10] Because the district court erred in holding that the documents in the “penitentiary packet” and the certified convictions were admissible as records of regularly conducted

activity under Rule 803(6), we next turn to the question of

whether the convictions, photograph and fingerprints are

admissible under any other hearsay exception. LoyolaDominguez, 125 F.3d at 1318. First, with respect to the documents titled “Judgment and Sentence on Plea of Guilty” only,

we hold that these records are evidence of previous convictions that are independently admissible under Rule 803(22).

See United States v. Dancy, 861 F.2d 77, 79 (5th Cir. 1988)

(per curiam). Second, with respect to the fingerprints and photograph contained in the “penitentiary packet,” we conclude

that these documents are public records of routine and nonadversarial matters that fall within Rule 803(8)(B), and were

admissible thereunder. Orellana-Blanco, 294 F.3d at 1150;

United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir.

1986). The fingerprints and photograph do not contain information akin to “ ‘police officers’ reports of their contemporaneous observations of crime’ ” that might be biased by the

adversarial nature of the report. Orozco, 590 F.2d at 794

(quoting United States v. Grady, 544 F.2d 598, 604 (2d Cir.

1976)). To the contrary, fingerprinting and photographing a

suspect, and cataloguing a judgment and sentence are the

types of routine and unambiguous matters to which the public

records hearsay exception in Rule 803(8)(B) is designed to

apply. Orellana-Blanco, 294 F.3d at 1150 (citing a judgment

as an example of a document that falls within Rule 803(8));

UNITED STATES v. WEILAND 11327
Pena-Gutierrez, 222 F.3d at 1086-87; United States v. Gilbert, 774 F.2d 962, 965 (9th Cir. 1985) (per curiam) (holding

that notations on a fingerprint card fall within Rule 803(8));

United States v. Wilson, 690 F.2d 1267, 1275-76 (9th Cir.

1982). In addition, we hold that “the sources of the information or other circumstances” in this case do not “indicate lack

of trustworthiness.” FED. R. EVID. 803(8). There is no allegation here that any document in the “penitentiary packet” is

factually inaccurate, and, further, there is no reason to think

that persons making routine court and prison records in Oklahoma have either motive or opportunity to fabricate or falsify

these documents. Orozco, 590 F.2d at 794; see also Chesapeake & Del. Canal Co. v. United States, 250 U.S. 123, 128-

29 (1919). We hold that the relevant contents of the “penitentiary packet,” including the documents titled “Judgment and

Sentence on Plea of Guilty,” the fingerprints, and the photograph, were properly admitted pursuant to the public records

hearsay exception in Rule 803(8).

C

[11] Weiland next maintains that the admission of the convictions violated 28 U.S.C. § 1738. We disagree. Section

1738, the federal full faith and credit statute, states, in part: 

The records and judicial proceedings of any court

of any such State, Territory or Possession, or copies

thereof, shall be proved or admitted in other courts

within the United States and its Territories and Possessions by the attestation of the clerk and seal of the

court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation

is in proper form. 

Such Acts, records and judicial proceedings or

copies thereof, so authenticated, shall have the same

full faith and credit in every court within the United

States and its Territories and Possessions as they

11328 UNITED STATES v. WEILAND
have by law or usage in the courts of such State, Territory or Possession from which they are taken. 

Weiland makes a strained argument that § 1738 creates

heightened evidentiary requirements for the admission of the

records of a prior conviction. We can find no authority for this

proposition,10 nor does reason support it. To the contrary, the

commentary to Federal Rule of Civil Procedure 44, incorporated into Federal Rule of Criminal Procedure 27, specifically

indicates that, under circumstances in which § 1738 is applicable, proof may be made either by compliance with the Federal Rules of Evidence or in compliance with § 1738. See

Mateo-Mendez, 215 F.3d at 1045. 

[12] Section 1738 is designed to ensure that each state and

federal court provides full faith and credit to appropriately

authenticated judicial judgments rendered in the other states.

The contents of the “penitentiary packet” challenged in this

case would be admissible in an Oklahoma criminal court pursuant to the state hearsay exception for public records, Frazier

v. State, 874 P.2d 1289, 1291-92 (Okla. Crim. App. 1994),

and § 1738 provides no bar to its admission here. Huffhines,

967 F.2d at 320. 

D

Weiland next argues that the admission of the records of his

prior Oklahoma convictions without subjecting the Secretary

of State of the State of Oklahoma, Oklahoma records custodian Richard E. Greene, and OSBI officer Nancy Young to

cross-examination violated the Confrontation Clause of the

Sixth Amendment.11 To determine whether evidence was

10The sole precedent Weiland cites in support of his argument is dicta

in a concurring opinion in United States v. Perlmuter, 693 F.2d 1290,

1295 (9th Cir. 1982) (Ferguson, J., concurring). Perlmuter, a case involving criminal convictions from a foreign jurisdiction, id. at 1292, is inapplicable to this case. 

11We review de novo whether the district court admitted evidence in

violation of the Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 136-

37 (1999); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004). 

UNITED STATES v. WEILAND 11329
admitted in violation of the Confrontation Clause, we look to

the framework set forth in Crawford v. Washington, 541 U.S.

36 (2004).12

In conducting an inquiry pursuant to Crawford, we first

consider whether challenged evidence was “testimonial” in

nature. If the evidence was testimonial, the government must

provide the defendant with confrontation and the opportunity

for cross-examination. Id. at 68 (“Where testimonial evidence

is at issue, however, the Sixth Amendment demands what the

common law required: unavailability and a prior opportunity

for cross-examination.”). If the evidence is non-testimonial,

there is uncertainty as to whether the “indicia of reliability”

or firmly rooted hearsay exception test enunciated in Ohio v.

Roberts, 448 U.S. 56, 66 (1980), survives Crawford. See, e.g.,

United States v. Saget, 377 F.3d 223, 227, 230-31 (2d Cir.

2004); United States v. Manfre, 368 F.3d 832, 838 n.1 (8th

Cir. 2004). 

[13] We first turn to the paramount question of whether the

evidence admitted without opportunity for cross-examination

was testimonial in nature. Here, the documents contained in

the “penitentiary packet” incorporate two layers of hearsay,

and, correspondingly, two potential Confrontation Clause

problems: 1) the records themselves, and 2) the statements of

Greene and the Secretary of State of the State of Oklahoma

providing the foundation to establish their authenticity.13 With

12While this case was pending on appeal, the U.S. Supreme Court

decided Crawford v. Washington, rejecting the “indicia of reliability” or

firmly rooted hearsay exception test in favor of an inquiry into whether the

evidence was testimonial. Although Crawford had not yet been decided at

the time that Weiland faced trial, we apply it here on direct review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). 

13Because we conclude that Greene’s certification was sufficient to

authenticate the “penitentiary packet,” we do not reach the question of

whether there would have been a Confrontation Clause violation had

Young been the only foundational witness. Unlike public records admitted

under Rule 803(8), records of a regularly conducted activity admitted

11330 UNITED STATES v. WEILAND
respect to the first layer, the records of conviction and the

information contained therein, the fingerprints, and the photograph, it is undisputed that public records, such as judgments,

are not themselves testimonial in nature and that these records

do not fall within the prohibition established by the Supreme

Court in Crawford. 541 U.S. at 56. 

[14] With respect to the second layer, the certifications by

Greene and the Secretary of State of the State of Oklahoma,

we encounter a novel question. Although the Court in Crawford declined to offer a comprehensive definition of testimonial evidence, the Court stated that “[w]hatever else the term

covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations.” Id. at 68; see also White v. Illinois, 502

U.S. 346, 365 (1992) (Thomas, J., concurring in part) (“[T]he

Confrontation Clause is implicated by extrajudicial statements

only insofar as they are contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or

confessions.”). Greene’s certification and that of the Secretary

of State are “affidavits” prepared for the purposes of litigation

that might be argued to invoke the protections of the Confrontation Clause. Nevertheless, we conclude that a routine certification by the custodian of a domestic public record, such as

that provided by Greene, and a routine attestation to authority

and signature, such as that provided by the Secretary of State

in this case, are not testimonial in nature. See United States

v. Rueda-Rivera, 396 F.3d 678, 680 (5th Cir. 2005) (per

curiam). Not only are such certifications a “routine cataloguunder Rule 803(6) require additional foundation. Loyola-Dominguez, 125

F.3d at 1318 (“[T]he public records exception is one of the few hearsay

exceptions that does not require a foundation.”). Because we resolve the

issues presented in this case based upon the public records provisions for

self-authentication, FED. R. EVID. 902(4), and hearsay, FED. R. EVID.

803(8), we need express no opinion on whether the Confrontation Clause

requires the government to make the custodian of business records available for cross-examination. 

UNITED STATES v. WEILAND 11331
ing of an unambiguous factual matter,” United States v.

Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005), but

requiring the records custodians and other officials from the

various states and municipalities to make themselves available for cross-examination in the countless criminal cases

heard each day in our country would present a serious logistical challenge “without any apparent gain in the truth-seeking

process.” Crawford, 541 U.S. at 76 (Rehnquist, C.J., concurring in the judgment). We decline to so extend Crawford, or

to interpret it to apply so broadly. 

[15] Having concluded that both the documents in the

“penitentiary packet” and the certifications by Oklahoma

records custodian Greene and the Secretary of State were nontestimonial in nature, we next turn to the question whether

these non-testimonial records might nevertheless have been

admitted in violation of the Confrontation Clause under Roberts. See Saget, 377 F.3d at 230-31. We need not address this

inquiry here, however, because, even assuming that the Roberts test survives Crawford and applies to non-testimonial evidence, the law of our circuit establishes that the Roberts test

would be met in this case because the hearsay exception for

public records and their certifying documents is firmly rooted.

Orellana-Blanco, 294 F.3d at 1150; see also Roberts, 448

U.S. at 66. We thus conclude that the district court did not

admit the documents in the “penitentiary packet” in violation

of the Confrontation Clause of the Sixth Amendment. 

IV

[16] Weiland contends that introduction of four Oklahoma

felony convictions when only one was required to prove his

status as a felon under § 922(g)(1) unfairly prejudiced him in

violation of Federal Rule of Evidence 403. See United States

v. Breitkreutz, 8 F.3d 688, 692 (9th Cir. 1993), abrogated on

other grounds by Old Chief v. United States, 519 U.S. 172

(1997); United States v. Lloyd, 981 F.2d 1071, 1071-73 (9th

Cir. 1992) (per curiam); see also United States v. Jones, 266

11332 UNITED STATES v. WEILAND
F.3d 804, 811-12 (8th Cir. 2001).14 In general, in a § 922(g)(1)

prosecution, the government is entitled to introduce evidence

of a prior felony conviction unless the defendant offers to

stipulate to his status as a felon. See Old Chief, 519 U.S. at

190-92. Because, however, of the prejudicial nature of evidence of prior criminal history, a district court must take great

care to limit the evidence of previous convictions and to avoid

unnecessary prejudice to the defendant. FED. R. EVID. 403;

Old Chief, 519 U.S. at 185; United States v. Hernandez, 109

F.3d 1450, 1452 (9th Cir. 1997) (per curiam). 

[17] The government, over Weiland’s objection, introduced

four substantially identical records of Oklahoma Second

Degree Burglary convictions. The issue is close because there

was no stipulation as to admissibility of any one conviction,

but we conclude that the district court abused its discretion in

admitting all four records of conviction. The four records

were nearly identical: each judgment was produced on the

same date, in the same Oklahoma district court, for the same

crime of Second Degree Burglary. The documents were also

authenticated by the single certificate completed by records

custodian Greene. Given the characteristics of the records of

conviction in this case, it is unlikely that one conviction

would lack a flaw contained in the others. Breitkreutz, 8 F.3d

at 692 (“Normally, however, prior felonies are established by

documentary proof that’s hard to dispute; proof of more prior

felonies adds very little of probative value and amounts to

unfair piling on.”); cf. Lloyd, 981 F.2d at 1073. Also, both the

large number of admitted convictions and the fact that the jury

viewed them without redacting the nature of the underlying

offense increased the risk of prejudice while adding little to

the case of the prosecution. See Hernandez, 109 F.3d at 1452;

see also Old Chief, 519 U.S. at 190-91 (“The most the jury

needs to know is that the conviction . . . falls within the class

14We review for abuse of discretion a district court decision to admit

multiple felony convictions to prove a defendant’s status as a felon. Lloyd,

981 F.2d at 1072-73. 

UNITED STATES v. WEILAND 11333
of crimes that Congress thought should bar a convict from

possessing a gun . . . .”); United States v. Rhodes, 32 F.3d

867, 875-76 (4th Cir. 1994) (Hamilton, J., concurring).

Although the prosecution may hedge its bets to some extent

against reversal based upon improperly admitted evidence,

Lloyd, 981 F.2d at 1073, an objection by the defendant does

not give the government license to introduce an unlimited

number of prior convictions when, as here, the record is

devoid of any indication that the records of conviction were

distinguishable, one from another, in any way meaningful

under the Federal Rules of Evidence or for appeal purposes.

[18] Having determined that the district court abused its

discretion in admitting all four Oklahoma convictions, we

turn to the question whether that error was harmless. Kotteakos v. United States, 328 U.S. 750, 764-65 (1946); United

States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The

erroneous admission of a prior conviction is harmless if the

government “provid[es] a ‘fair assurance’ that the error did

not substantially sway the verdict.” Id. (quoting Hernandez,

109 F.3d at 1453). We hold that this standard was met in this

case. Here, the district court instructed the jury to consider the

four Oklahoma convictions for the sole purpose of determining whether Weiland was a felon within the meaning of

§ 922(g)(1). United States v. Holler, 411 F.3d 1061, 1067 (9th

Cir. 2005). But see Hernandez, 109 F.3d at 1453. Given the

strong evidence that Weiland had been convicted of at least

one count of Second Degree Burglary in Oklahoma in 1976

and that he had been in possession of firearms and ammunition that traveled in interstate commerce, we conclude that the

jury would have reached the same verdict even absent the

erroneously admitted superfluous convictions. See Alviso, 152

F.3d at 1199. 

V

Weiland argues that the four Oklahoma Second Degree

Burglary convictions should not have been used to enhance

11334 UNITED STATES v. WEILAND
his sentence under the Armed Career Criminal Act because

the government did not establish that he was convicted of four

crimes that included the elements of generic burglary.15 We

reject this argument, applying the modified categorical

approach. Here, the government produced an Information and

Judgment and Sentence on Plea of Guilty for each of the four

Oklahoma Second Degree Burglary convictions. We have

previously approved the use of these exact Oklahoma documents under the modified categorical approach, United States

v. Bonat, 106 F.3d 1472, 1477-78 (9th Cir. 1997), and the

United States Supreme Court recently cited our approach in

Bonat with approval, Shepard v. United States, 125 S. Ct.

1254, 1260 n.3 (2005). Each Oklahoma Information establishes that Weiland committed an offense that met the elements of generic burglary: an “unlawful or unprivileged entry

into, or remaining in, a building or structure, with intent to

commit a crime.” Taylor, 495 U.S. at 599. We hold that the

district court correctly determined that the government established that Weiland committed generic burglary under the

modified categorical approach. 

VI

Weiland maintains that his 188-month sentence under the

Armed Career Criminal Act is constitutionally infirm on the

theory that it violates the jury trial requirement of the Sixth

Amendment. Although Weiland did not raise this argument in

the district court, we consider it because it presents a purely

legal question and the factual record below has been fully

developed. United States v. Reyes-Alvarado, 963 F.2d 1184,

1189 (9th Cir. 1992). 

[19] Weiland’s argument is foreclosed by Almendarez15We review de novo a district court ruling that the government presented documents sufficient to establish the elements of generic burglary

under the modified categorical approach. United States v. Franklin, 235

F.3d 1165, 1169 (9th Cir. 2000). 

UNITED STATES v. WEILAND 11335
Torres v. United States, 523 U.S. 224, 247 (1998), in which

the Supreme Court held that a district court may enhance a

sentence on the basis of prior convictions, even if the fact of

those convictions was not found by a jury beyond a reasonable doubt.16 We accordingly leave intact the 188-month sentence Weiland received pursuant to the Armed Career

Criminal Act, 18 U.S.C. § 924(e). 

VII

[20] Weiland finally argues that the district court erred in

declining to adjust downward for acceptance of responsibility

under U.S.S.G. § 3E1.1.17 This argument lacks merit. When a

16Although recent Supreme Court jurisprudence has perhaps called into

question the continuing viability of Almendarez-Torres, see, e.g., Shepard,

125 S. Ct. at 1263-64 (Thomas, J., concurring), we are bound to follow a

controlling Supreme Court precedent until it is explicitly overruled by that

Court. Agostini v. Felton, 521 U.S. 203, 258 (1997) (Ginsburg, J., dissenting); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,

484 (1989) (“If a precedent of this Court has direct application in a case,

yet appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving

to this Court the prerogative of overruling its own decisions.”); United

States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (“Unless and

until Almendarez-Torres is overruled by the Supreme Court, we must follow it.”). 

17We review for clear error a district court decision not to adjust downward for acceptance of responsibility under U.S.S.G. § 3E1.1. Nielsen,

371 F.3d at 582; United States v. Velasco-Medina, 305 F.3d 839, 853 (9th

Cir. 2002); United States v. Melvin, 91 F.3d 1218, 1227 (9th Cir. 1996).

Although a few Ninth Circuit opinions suggest that we lack jurisdiction to

review a district court decision not to grant a downward adjustment for

acceptance of responsibility under U.S.S.G. § 3E1.1, see, e.g., United

States v. Bauer, 84 F.3d 1549, 1562 (9th Cir. 1996); United States v.

Eaton, 31 F.3d 789, 792-93 (9th Cir. 1994), these opinions do not reflect

the overwhelming weight of the case law in this circuit supporting our rule

that we can review a decision not to adjust downward for acceptance of

responsibility. The few cases looking in the other direction appear to be

misapplying the general rule that we do not have jurisdiction to review a

district court’s discretionary denial of downward departure. See, e.g.,

Eaton, 31 F.3d at 792 (citing United States v. Morales, 898 F.2d 99, 103

(9th Cir. 1990)). 

11336 UNITED STATES v. WEILAND
defendant chooses to put the government to its burden of

proof at trial, a downward adjustment for acceptance of

responsibility should be “rare.” U.S.S.G. § 3E1.1 cmt. n.2.

Appropriate downward adjustments for acceptance of responsibility after trial might include when a defendant challenges

the constitutionality of a criminal statute, or other like circumstance. Id. In this case, Weiland challenged the admissibility

of his four underlying Oklahoma criminal convictions and

actively contested other aspects of the government’s case. We

hold that the district court did not clearly err in denying Weiland a downward sentencing adjustment for acceptance of

responsibility under U.S.S.G. § 3E1.1. 

AFFIRMED.

TASHIMA, Circuit Judge, dissenting: 

Regretfully, I must dissent from the majority’s holding that

the records of Weiland’s prior convictions were admissible,

because “the records were properly authenticated because the

documents in the ‘penitentiary packet’ were selfauthenticating public records admissible under Rules 902(2)

and 902(4).” Maj. op. at 11324. Respectfully, I suggest that

the record in this case cannot support the weight of that conclusion. 

Richard E. Greene is the manager of the Offender Records

Unit, Oklahoma Department of Corrections. In that capacity,

he certified the records of Weiland’s prior convictions at issue

in this case. In material part, his certification stated:

that in my legal custody as such officer, are the original files and records of persons heretofore committed to the Department of Corrections; that the 1)

fingerprint card, 2) photograph, and 3) commitment

documents attached are copies of the original records

UNITED STATES v. WEILAND 11337
of persons heretofore committed to said Department

of Corrections, and who served a term of

incarceration/supervision therein; that I have compared the foregoing and attached copies with their

respective originals now on file in my office and

each thereof contains and is a full, true and correct

copy from its said original. 

Although the foregoing certification would be sufficient to

meet the requirements of Rule 902(2) and (4) if it were considered in isolation, as the majority does, the problem in this

case is that stapled to Greene’s certification is a “facsimile

transmittal,” which contradicts the material representations

made in the certification. The majority, without any analysis

whatsoever, dismisses this facsimile out of hand in one sentence: “The facsimile included in the ‘penitentiary packet,’

apparently from Greene’s office to Paula Menifee in the

OSBI, does not change our analysis.”

18 Maj. op. at 11325. I

do not believe that the facsimile can be dealt with in such an

offhand and facile manner — that is, virtually ignored. 

The facsimile transmission stapled to Greene’s certification

is a fax from Paula Menifee, an employee of Greene’s unit,

Offender Records, to the Oklahoma State Bureau of Investigation (the “Menifee Fax”).19 The text of the Menifee Fax

states: “Please send (BY MAIL ONLY) legible copies of any

fingerprints, photographs, and rap sheets on the following

individuals:” (Emphases in the original.) Listed below the text

is Weiland’s name, his date of birth, Department of Correc18As I show immediately below, the majority is mistaken in assuming

that the facsimile was sent “from Greene’s office to Paula Menifee in the

OSBI.” In fact, Menifee is an employee of Greene in the Offender Records

Unit. 

19Menifee identifies herself as being with “Offender Records.” The fax

letterhead shows the same address for Menifee’s “Offender Records”

office — 3400 Martin Luther King Avenue, Oklahoma City — as the

address for Greene’s “Offender Records Unit,” shown below his signature

on the certification. 

11338 UNITED STATES v. WEILAND
tions number, OSBI number [listed as “unknown”], FBI number, and Social Security number. 

Several things are obvious from the Menifee Fax. First,

Greene does not have custody of “the original files and

records.” If he did, he (or Menifee on his behalf) would not

have to request the records from OSBI. Second, if Greene had

to obtain “legible copies” of the records from OSBI, he could

not have “compared the . . . copies with their respective originals.” Third, not having the ability to make a comparison with

the originals, Greene had no basis for certifying that the copy

is “full, true, and correct.” In sum, the Menifee Fax demonstrates that Greene, in fact, was not the custodian of the

records which he purported to certify. 

Further corroborating the Menifee Fax’s implicit conclusion that Greene was not the custodian is the further fact that

the Menifee Fax was not addressed only to the Oklahoma

State Bureau of Investigation, but jointly to “OSBI-NCIC.”

Presumably, the fax was so addressed because “State law

enforcement agencies [i.e., OSBI] are connected to NCIC

through their computer systems,” Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 924 (9th Cir. 2001), and going

through OSBI was the way that Greene’s Offender Records

Unit could access the NCIC database. We briefly described

NCIC in Case, as follows: “[T]he National Crime Information

Center computer system (‘NCIC’) . . . is a national criminal

records data system administered by the Federal Bureau of

Investigation. See 28 U.S.C. § 534. NCIC contains criminal

history information, including outstanding warrants, and is

available to police departments nationwide.” Id. at 923. If

Greene was, in fact, the custodian of these records, we can

only speculate why Greene, through Menifee, found it necessary to inquire of the NCIC about Weiland’s criminal records.

In short, the Menifee Fax raises a number of troubling

questions. Indeed, without a satisfactory explanation of those

questions, it completely destroys the reliability of Greene’s

UNITED STATES v. WEILAND 11339
certification. Because the certification, on this record, is

demonstrably unreliable, the records it purports to certify

should not have been admitted under Rules 902(2) and

902(4), and Weiland’s conviction should be reversed.

11340 UNITED STATES v. WEILAND