Erroneous admission of hearsay evidence is harmless where evidence only undermines defendant’s credibility on tangential issue

EVIDENCE United States v. Gwathney, No. 05-2165, ___ F.3d ___ (10th Cir. Sep. 26, 2006)(New Mexico). Appeal of conviction for possession of 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(b)(1)(b)(vii). HELD: (1) District court erred in admitting Drug Enforcement Administration (DEA) subpoena with attached response from Western Union as DEA business record under business record exception to hearsay rule at Rule 803(6) of Federal Rules of Evidence. Western Union response was separate document from DEA’s subpoena. Therefore, DEA could not claim Western Union’s response as one of its own business records because DEA did not prepare document. If Western Union document was to be admitted as business record under Rule 803(6), it must have been admitted as business record of Western Union, not DEA. (2) Error in admitting evidence is harmless where evidence only undermines defendant’s credibility as to tangential issue. Defendant’s credibility may have been eroded by document erroneously admitted under business records exception to hearsay rule, but error was harmless beyond reasonable doubt because document did not pertain to guilt or innocence (i.e., central issue in case – defendant’s knowledge of presence of marijuana in truck trailer), but merely undermined defendant’s credibility on question of why he delayed repairs for vehicle used to pull trailer with marijuana. Read the opinion here.