# United States v. Raymond Sawyer

> Court of Appeals for the Seventh Circuit · August 16, 1979 · 607 F.2d 1190

URL: https://www.frixlaw.com/law-library/cases/9466197

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Raymond SAWYER, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 16, 1979
- **Citations:** 607 F.2d 1190; 4 Fed. R. Serv. 1142; 44 A.F.T.R.2d (RIA) 5471; 1979 U.S. App. LEXIS 12459
- **Precedential status:** Published
- **Opinion:** Concurrence by Swygert
- **Judges:** Castle, Swygert, Bauer
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466197

## How later opinions describe it (automated extraction)

- holding that the rule barring admission of police reports did not disqualify an officer testifying from a report of a recorded recollection that otherwise satisfied Fed. R. Evid. 803(5)

## Opinion text

SWYGERT, Circuit Judge,
concurring in the result.
With some reluctance, I concur in the affirmance of defendant’s conviction. My reluctance stems from the admission of Revenue Officer Schroeder’s reading from his referral report dated January 14, 1974 which stated that “a phone call was made to the taxpayer’s husband who stated that the 1040 returns . . . 1971 and 1972 had been filed.”
An examination of the referral report shows that it comes within the literal definition of records excluded pursuant to section 803(8)(B) of the Federal Rules of Evidence: “[Mjatters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” (emphasis added).
The problem here is whether section 803(8)(B) is inapplicable because of the operative effect of section 803(5) which reads in its entirety:
Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his 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.
Officer Schroeder testified that he obtained defendant’s telephone number from defendant’s wife in September 1973 and that it was his routine practice to attempt to contact a taxpayer under investigation by telephone in such circumstances. He further testified that it also was routine to record all taxpayer contacts on a history sheet and that notations reflecting phone calls would be made immediately after the calls were completed.
Officer Schroeder said that he had no independent recollection of his phone conversation with defendant and that the history sheet on defendant had been destroyed after he had closed his part of the investigation. He testified that he had used the history sheet to prepare his referral report — the disputed document.
Although we are dealing with a record of a record, not made contemporaneously with the event, and in a sense double hearsay, I am satisfied that the requirements of section 803(5) were met. Because Schroeder was available as a witness for both foundation purposes and cross-examination, the hearsay was admissible under the Federal Rules of Evidence and the defendant was not deprived of the right of confrontation. If Officer Schroeder had not been available for cross-examination, defendant’s right of confrontation would have been violated and a different result would have been compelled. See United States v. Oates, 560 F.2d 45 (2d Cir. 1977).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466197. Public record. Not legal advice.