United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 98-3012EA

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Eastern District

* of Arkansas.

Gary Jerome Riley, *

*

Appellant. *

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 Submitted: November 17, 2000

 Filed: January 18, 2001 

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Before McMILLIAN, RICHARD S. ARNOLD, and BEAM, Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

Gary Jerome Riley appeals his conviction and sentencing on two counts of

possessing cocaine base with the intent to distribute. He argues that the District Court

erred in admitting crime-lab reports without proper authentication, in failing to appoint

substitute counsel at sentencing, and in sentencing him as a career offender. We agree
1The government does not contend that the admission of the report was harmless.

Thus, that question is not before us.

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that the admission into evidence of the crime-lab reports was prejudicial error.1

Consequently we reverse and remand for a new trial.

I.

Evidence tended to show the following facts. Three officers of the Arkansas

State Police went to a house in Pine Bluff to buy drugs. Mr. Riley was present. The

officers waited while a woman at the stove heated a baby-food bottle containing

something that Mr. Riley said was crack. During that time, the officers saw Mr. Riley's

co-defendant, Mr. Thomas, conduct several sales and split the money with Mr. Riley.

When the bottle being heated on the stove exploded, Mr. Riley reassured the officers

that he could have "Junior Pooh" bring some crack to the house. Junior Pooh arrived

with just short of an ounce of a substance Mr. Riley represented as crack. Mr. Riley

promised the officers that he would make up the difference, and the officers paid him

$1,000 for the substance. A little more than a month later, one of the officers returned

to the house and purchased a half ounce of something for $500. 

To prove the chemical identity of the substance the officers were sold, the

government intended to offer the testimony of a state crime-lab chemist and a document

entitled "State Crime Laboratory: Report of Laboratory Analysis." The chemist was

present to testify on the day of trial but wanted to leave for medical reasons. The

government therefore prepared a stipulation form stating that the chemist, if present,

would have testified in accordance with the report. Although Mr. Riley's lawyer signed

the form, Mr. Riley refused to do so. The government allowed the chemist to leave.

At trial, it offered the report on the basis of an officer's testimony that he had submitted

the substance to the crime lab, received the report from the lab, and checked the

identification number of the sample against that reflected on the report. The District
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Court held that this foundation satisfied Federal Rule of Evidence 803(6), and admitted

the report. 

II.

The first question is whether defense counsel's signature was sufficient for an

effective stipulation. Under the facts presented here, we hold that it was not. We have

held that, where a stipulation serves as the functional equivalent of a guilty plea, the

Due Process Clause requires that the trial court examine the defendant to ascertain

whether he understands the stipulation and agrees to it voluntarily. Cox v. Hutto, 589

F.2d 394, 396 (8th Cir. 1979). We do not mean to say that the stipulation Mr. Riley's

counsel signed was the functional equivalent of a guilty plea, or that, on these facts, the

trial court was required to examine Mr. Riley. But the same constitutional values that

impose procedural safeguards on the acceptance of a guilty plea also dictate that a

defendant may not be treated as admitting to an element of an offense when he clearly

and firmly expresses the desire to hold the government to its burden of proof. Because

the defendant did not stipulate to the chemist's testimony, we must consider whether

the proffered document was admissible without it. If counsel had stipulated in

defendant's presence, and defendant had stood silent, a different case would be

presented.

III.

The government first contends that the document was admissible without the

chemist's testimony because it was self-authenticating under Arkansas law. We are

referred to Ark. Code Ann. § 12-12-313(d)(1), which provides:

All records and reports of evidence analysis of the State Crime

Laboratory shall be received as competent evidence . . . when duly

attested to by the analyst who performed the analysis. 
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However compelling this authority might be in an Arkansas court, it has no bearing

here. The question presented concerns the admissibility of evidence in a federal

prosecution. Such questions are controlled by the Federal Rules of Evidence.

We turn, therefore, to the District Court's analysis, which rightly focused on

Federal Rule of Evidence 803(6). That rule provides that a document may be admitted

into evidence under the business-records exception to the hearsay rule only if

authenticated by the "testimony of the custodian [of the record] or other qualified

witness." Mr. Riley argues that the police officer was not a "qualified witness" for

purposes of the rule and that it was therefore an abuse of discretion to admit the report.

See United States v. Baker, 855 F.2d 1353, 1359 (8th Cir. 1988), cert. denied, 490

U.S. 1069 (1989) (standard of review). 

We agree. The government concedes the conclusive fact: "the Arkansas State

Police officers . . . admittedly had no personal knowledge about how the lab reports

were prepared or maintained." Brief of Appellee 4. Without such personal knowledge,

the officers could not testify that the documents offered by the government had been

"kept in the course of a regularly conducted business activity" or that "it was the regular

practice of that business activity to make the memorandum, report, record, or data

compilation . . .." Fed. R. Evid. 803(6). Thus, the officers' testimony could not lay the

foundation for admissibility of those documents.

The District Court based its contrary holding on two decisions of this Court: 

United States v. Roulette, 75 F.3d 418 (8th Cir. 1996), and Baker, supra. Those cases

do not control the question before us. Baker stands for the proposition that, "[w]hen

made on a routine basis, laboratory analyses of controlled substances are admissible

as business records under Federal Rule of Evidence 803(6)." 855 F.2d at 1359. The

issue of foundation presented here did not arise in that case. In Roulette, we held that

a lab report could be admitted without the testimony of the person who actually
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prepared the report. 75 F.3d at 422. We did not hold that alleged business records

may be admitted even if no one at all testifies from personal knowledge as to

foundation.

The government also calls our attention to United States v. Koontz, in which we

upheld a conviction against a challenge based upon the admission of a booking report

as a public record. 143 F.3d 408 (8th Cir. 1998). The defendant in that case

challenged the admissibility of the report on the basis that the agent who testified as to

foundation did not personally know whether the facts contained in the report were true.

We held that the agent did not need personal knowledge of the material facts, because

his testimony was not offered to prove them; the report itself served that purpose. Id.

at 412. In Mr. Riley's case, as in Koontz, the officers' testimony was offered to prove

the lab report's authenticity and reliability as a business record. It could not do so,

however, because the personal knowledge lacking here concerned the foundational

facts themselves.

We know of no categorical rule to the effect that a report from a state crime lab

may always be admitted upon an officer's testimony. We also reject the government's

suggestion that such testimony is adequate as long as the crime lab is run by the police

department. Such administrative arrangements do not guarantee competent testimony

at any given trial. Rather, when held to its burden, the prosecution must put on a

witness who can testify to the foundational facts required by the Rule. That was not

done here. 

IV.

The admission of the records in question requires a new trial. For that reason,

we do not reach Mr. Riley's other assignments of error. 

Reversed and remanded for further proceedings consistent with this opinion.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.