# Petition — Harris v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2089%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 836 ## Text <= Sup ome Court, U. Se FILED jk JUN 25 1STT MICHAEL RODAK, JR., CLERK UNITED STATES SUPREME COURT ( UNITED STATES OF AMERICA —_____Versts > ail MORRIS HARRIS C W6-1857 NUMBER PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FIFTH CIRCUIT RALPH BREWER Suite 210, 200 Government Baton Rouge, Louisiana 70802 JOSEPH R. RAGGIO DENNIS R. WHALEN 201 Napoleon Street Baton Rouge, Louisiana 70802 (Of Counsel) n ira > r e ~ r * a fj eer _ 7 “se J 4 | Y > . a - - a — = : ; | » * 7 ; . . 7 36 Je 6. I INDEX Reports of opinion below. Statement of jurisdictional grounds. Date of judgment to be reviewed. Information on rehearing. Statutory jurisdiction. Question for review. Constitutional provisions and statutes invoked. Table of case. Statement of the case. Argument. Conclusion. Page i) fo REPORTS OF OPINION BELOW The decision of the Court of Appeal, Fifth Circuit, is reported at F.2d , number 76-4051. - STATEMENT OF JURISDICTIONAL GROUNDS . This court is authorized to review the judgment in question by Writ of Certiorari. U.S. Code, Title 28, Section 12541). TABLE OF CASES 1. 18 0U.S.C., 8922(a)(1). 26 Federal Rules of Evidence, Rule 803(10). 36 U.S. vs. Dota, 482 F.2d 1005 (10th Cir.) cert. denied, 414 U.S. 1071, 94 S.Ct. 583, 38 L.Ed. 2d 477 (1973) QUESTIONS PRESENTED .FOR REVIEW 1. May a conviction stand a the only evidence of an essential element of the crime is admitted in evidence over objection and in violation of Rule 803(10), Federal Rules of Evidence? CONSTITUTIONAL AND STATUTORY PROVISIONS 1. 18 U.S.C. $922(a)(1) 8922. Unlawful acts "(a) It shall be untawful- (1) for any person, except a licensed importer, licensed manu- facturer, or licensed dealer, to engage in the business of import- ing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce;" 2. Federal Rules of Evidence, 803(10) "Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial | The following are not excluded by the hearsay rule, even though the declarant is avail- able as a witness: (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence of nonexistence of a matter of which a record, report, state- ment, or date compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry." STATEMENT OF THE CASE Morris Harris was charged by indict- ment with being a dealer in firearms without being licensed to do so. He was tried on August 13, 1976. In order to prove an essential element of the offense charged in the indictment, defendant's not having a license to deal in firearms, the Government offered a certificate of an agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department. The agent did not claim in the certificate that "a ~ diligent search" had been made for the certificate. Rule 803(10) of the Fed- eral Rules of Evidence is predicted upon a "diligent search" for a record being necessary to prove non-existence of the record. Defendant objected to the admission of the certificate for the express reason that it did not comply with Rule 803(10) and was thus inadmissible hearsay. The trial Court overruled the objection, defendant was convicted, the conviction affirmed, and rehearing denied. A copy of the Court of Appeals decision is attached as Appendix 1 to this petition. Rehearing denied May 26, 1977. ARGUMENT Rule 803(10) is specific. The certificate to show absence of a fire- arms dealer's license did not state that a diligent search had been made. It did not even state that a search was made. In U.S. vs. Dota, 482 F.2d 1005 (CA 10) cert. denied, 414 U.S. 1071, 94 S. Ct. 583, 38 L. Ed. 2d 477 (1973), relied on by the Fifth Circuit, at least a search had been made. To say that the evidence as oftered was "in its mature highly rafiabie" as did the Fifth Circuit, is to beg the question. It is only "highly reliable" if it is in compliance with the law, written to exclude unreliable hearsay. the certificate is not in compliance with Rule 803(10), and is therefore un- reliable hearsay and inadmissible. The objection should have been sustained, the conviction should have been reversed. CON CLUSION The Government is bound by its own laws. The conviction must be reversed. By Attorney: 4 Ralph Brewer Suite 210, 200 Government Street Baton Rouge. Louisiana 70802 I certify 2 copies of this petition has been mailed to the Solicitor General of the United States and to the United States Attorney, Middle District of Louisiana, this day of June, 1977. Ralph Brewer UNITED STATES v. HARRIS UNITED STATES of America, Plaintiff-Appellee, Vv. Morris HARRIS, Defendant-Appellant. No. 76-4051 Summary Calendar.* United States Court of Appeals, Fifth Circuit. April 27, 1977. Defendant was convicted in the United States District Court for the Mid- dle District of Louisiana at Baton Rouge, E. Gordon West, J., of engaging in the business of dealing in firearms without a license, and he appealed. The Court of Appeals held that the trial court proper- ly admitted into evidence a certificate from an agent of the Bureau of Alcohol, Tobacco and Firearms Division of the Department of Treasury stating that de- fendant had not been granted a license to engage in business as a firearms deal- er, despite the fact that the certificate did not state that a diligent search of records had been made. Affirmed. Criminal Law @=429(1) Trial court properly admitted into evidence, in prosecution for engaging in business of dealing in firearms without license, certificate from agent of Bureau of Alcohol, Tobacco and Firearms Divi- sion of Department of Treasury stating rv ‘efendant had not been granted ti» .» to engage in business as firearms a. , despit» fact that such certificate 2845 did not state that diligent search of records had been made. Federal Rules of Evidence, rules 803(10), 902; 18 U.S. C.A. § 922(a)(1). Appeal from the United States Dis- trict Court for the Middle District of Louisiana. Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges. PER CURIAM: Appellant was convicted of engaging in the business of dealing in firearms without a license, 18 U.S.C. § 922(a)\1). This circuit already had held that § 922(aX1) is not unconstitutionally vague. United States v. King, 532 F.2d 505 (CA5,1976). The only other issue appellant raises concerns the admission into evidence of a certificate from an agent of the Bureau of Alcohol, Tobacco and Firearms Divi- sion of the Department of the Treasury stating that appellant had not been granted a license to engage in business as a firearms dealer. Appellant con- tends that admission of this certificate violated Rule 803(10) of the Federal Rules of Evidence because the certificate did not state that a diligent search of records had been made. Rule 803(10), an exception to the hearsay rule, provides: Absence of public record or entry. —To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data com- pilation, in any form, was regularly made and preserved by a public office * Rule 18, 5 Cir.; *ce Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I. Synopses, Syllabi and Key Number Classification COPYRIGHT © 1977, by WEST PUBLISHING CO. The Synopses, Syllabi and Key Number Classifi- cation constitute no part of the opinion of the court. or agency, evidence in the form of a certification in accordance with rule 902,' or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or en- try. The certificate by the agent stated in relevant part: I do hereby further certify that Morris Harris, 4154 Pitcher Street, Baton Rouge, Louisiana, has not been grant- ed a license to engage in business as [a] dealer in firearms other than de- structive devices or ammunition for other than destructive devices as of February 24, 1976. Although there is no statement in the certificate that a “diligent search” had been made, we think this omission does not cause the admission of the certificate to be reversible error. We agree with the Court of Appeals for the Tenth Cir- cuit which, in a similar case, said: There has been substantial compliance with the rule, and reversing this case simply because the certificate failed to 1. The government complied with Rule 902. 2. Dota and Farris were decided before the ef- fective date of the Federal Rules of Evidence under Federal Rule of Criminal Procedure 27 UNITED STATES v. HARRIS recite the word “diligent” would pro- tect no substantial right of appellant and would indicate nothing but a total capitulation to form over substance. United States v. Dota, 482 F.2d 1005 (CA10), cert. denied, 414 U.S. 1071, 94 S.Ct. 583, 38 L.Ed.2d 477 (1973); accord, United States v. Farris, 517 F.2d 226 (CAT), cert. denied, 423 U.S. 892, 96 S.Ct. 189, 46 L.Ed.2d 123 (1975).? The exception to the hearsay rule em- bodied in Rule 803(10) is justified be- cause evidence admitted under it is in its nature highly reliable, i.e., the “yes or no” of whether a license has been issued; because the records from which the evi- dence corn.es are open to the public thereby increasing the probability that any errors will be found and corrected; and because there is a substantial need for such evidence. See generally 5 Wig- more on Evidence §§ 1631-32, 1678(7) (Chadbourn rev., 1974). The justifica- tions for this exception have been met in this case. AFFIRMED. and Federal Rule of Civil Procedure 44. How- ever the provision of a “diligent search” is also in Rule 44 and thus the principle involved is the same. Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2089%3A1. Public record. Not legal advice.