# Opposition Brief — Central Bank of Tampa v. Transamerica Insurance Group

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 955

## Text

a= oe eS

No. 92-445 | OCT 9 1992
| OF FOE THE CLERK
In The Ls —
Supreme Court of the United States
+

October Term, 1992

CENTRAL BANK OF TAMPA, f/u/b/o R.W. MASHBURN,
LAMAS ORIENTAL FOODS, INC. AND LAMAS, INC.,

Petitioner,

vs.
TRANSAMERICA INSURANCE GROUP,

Respondent.

On Petition for a Writ of Certiorari to the United States Court
of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

LEE CRAIG

BUTLER, BURNETTE & PAPPAS
Attorneys for Respondent

e @\ Ta Bayport Plaza, Suite 1100

—« i 6200 Courtney Campbell Causeway
= Tampa, Florida 33607-1458

— ‘ie (813) 281-1900

—

—

C79 Bats Ls (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21
a)

co

ES ae eT eR Se TS |

QUESTIONS PRESENTED

I. Does the Eleventh Circuit’s affirmance of the trial court’s
admission of certain evidence under Rule 803(5), Federal Rules of
Evidence, conflict with any decision of any other circuit?

IJ. Did the admission of certain evidence pursuant to Rule
803(5), Federal Rules of Evidence. by the trial court, or the
affirmance of this ruling by the Eleventh Circuit, constitute a
departure from the accepted and usual course of judicial
proceedings, pursuant to Rule 10, Supreme Court Rules. so as to
invoke the discretionary jurisdiction of this Court?

III. Did the trial court’s admission of certain evidence under
Rule 803(5), Federal Ruies of Evidence. deny petitioner any right
of due process?

TABLE OF CONTENTS

Page
Questions Presented .............. Frere re ree ree
Table of Comtemts . 5.65.50 5-5 ee ee 1]
Table of Citations. ....¢...00 ye eee ill
Statement of the Case... G5 eee l
Summary of Reasons for Denying the Writ ............ 5
Reasons for Denying the Writ ........................ 6

I. There is no conflict between the Eleventh Circuit’s
holding and any decision of any other circuit... .. 6

A. Background to Rule 803(5)................ 6

B. The Eleventh Circuit’s Holding Does Not
Conflict with any Decision of any Other Circuit. 8

I]. There was no departure from usua! course of

proceedings requiring correction by this Court....- 15
III. The petitioner’s due process rights were not violated
Dy the trial] comm. 5.2.5... aa. ee

CORCIUSION . oo. a accca ne eee eee aa 17

lil

Contents
Page

TABLE OF CITATIONS
Cases Cited:

Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th
te es oka Vv sd oe kaney ecu ce iy Ag

Dickinson Supply, Inc. v. Montana-Dakota Utilities Co., 423
pe Eo 8, 9

Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970)

(PAN aS ig RTE ae eo 12
Goings v. United States, 377 F.2d 753 (8th Cir. 1967)
OS SES RS i rr ae eee 9
In re Corrugated Container Antitrust Litigation, 756 F.2d
eS RS ee ee hae Cae
O’Malley v. United States Fidelity and Guaranty Co., 776
er 9, 10
Schlagenhauf v. Holder, 379 U.S. 104 (1964).......... 16, 17

Society Internationale, Etc. v. Rogers, 357 U.S. 197 (1958)

Contents

Page

United States v. Patterson, 678 F.2d 774 (9th Cir. 1982)

United States v. Schwartz, 390 F.2d 1 (3rd Cir. 1968)

United States v. Senak, 527 F.2d 129 (7th Cir. 1975), cert.
denied, 425 U.S. 907 (1976) ................ 7

United States v. Williams, 571 F.2d 344 (6th Cir. 1978)

Pe IE ee ee tink ark Ci are i Pe
Rules Cited:
ures Cowrt Bult 10s ce ie ek: Cece irises Pal
Federal Rule of Civil Procedure 37(b) 16
Federal Rule of Evidence 803(5)........... . passim

Other Authorities Cited:

3 Wigmore on Evidence, § 747 (Chadbourn Rev. 1970)

14

11 Moore’s Federal Practive, Art. VII, p. 110 13
APPENDIX

Appendix A la

l

No. 92-445

In The

Supreme Court of the United States

oven we
October Term, 1992

CENTRAL BANK OF TAMPA, f/u/b/o R.W. MASHBURN.,
LAMAS ORIENTAL FOODS, INC. and LAMAS, INC..

Petitioner.
VS.

TRANSAMERICA INSURANCE GROUP,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Plaintiff and appellant below, and petitioner in this Court.
Central Bank of Tampa (Central Bank), sued Transamerica
Insurance Group (Transamerica), to establish coverage under a
certain policy of fire insurance issued by Transamerica for which

to

Central Bank was a beneficiary. Transamerica answered the
complaint, alleging the policy had been cancelled prior to the fire.
Transamerica moved for summary judgment and supported its
motion with the affidavit of a former Transamerica employee, Judy
Garrabrant. In that affidavit, Garrabrant swore that she had
prepared and mailed a Notice of Cancellation to Central Bank and
three other interested entities at their addresses. Transamerica’s
motion for summary judgment was denied and the action went to
trial by jury. At trial, Transamerica stipulated to all elements of
Central Bank’s case-in-chief and the parties agreed on the major
elements of damages. The case was tried solely on the affirmative
defense that the policy had been cancelled by Transamerica prior to
the fire.

In its case, Transamerica called Garrabrant to the stand.
Through Garrabrant’s testimony, Transamerica established that:

1. Garrabrant had executed the affidavit submitted in support
of the Motion for Summary Judgment;

2. Garrabrant had knowledge and recollection of the contents
of the affidavit when she executed it. But, she did not have
sufficient recollection currently to testify fully and accurately to
the matters set forth in the affidavit;

3. The contents of the affidavit were fresh in Garrabrant’s
memory at the time she executed the affidavit;

4. The affidavit correctly reflected Garrabrant’s knowledge
when she executed it;

5. Garrabrant would not have executed the affidavit if it were
not true.

3

The pertinent portions of Garrabrant’s testimony are set out in
the appendix. Petitioner took full opportunity to cross-examine
Garrabrant, and the court also inquired as to the witness’
recollection. Transamerica moved to have the contents of the
affidavit accepted as recorded recollection under Federal Rule of
Evidence 803(5) and read to the jury. Central Bank objected
chiefly on the basis the witness’ knowledge was not fresh when
recorded. The trial court overruled the objection and the affidavit
was read to the jury. The jury found Garrabrant credible, accepted
her testimony and returned a verdict for Transamerica.

The pertinent dates are as follows: Garrabrant prepared and
mailed the cancellation notices on June 3, 1986. The fire occurred
on June 29, 1986. Garrabrant executed the affidavit on September
18, 1987. Garrabrant testified at trial on January 28, 1991.

Central Bank appealed the verdict to the Eleventh Circuit
arguing, in pertinent part, as follows:

The court erred in permitting this hearsay statement to be
admitted as substantive evidence because:

|. The pertinent fact was not recorded by the
witness but by the unidentified person or
persons who prepared the affidavit fifteen (15)
months after the event.

i)

The address of the Bank did not appear in the
Notice and there was no evidence regarding its
source, except that it obviously was not
obtained from the witness or the Notice.

3. It could not be pretended, and the witness
didn’t pretend, that she remembered on
September 18, 1987, the exact addresses of

4

three entities in Tampa, Florida to whom she
allegedly mailed copies of a Notice fifteen
(15) months earlier in another employment.

4. The affidavit was prepared for the purpose of
supporting the Insurance Company’s defense
of cancellation by an attorney or other
knowledgeable agent after the filing of the
action on the policy.

Additionally, the extreme unreliability of the affidavit as
substantive evidence, even if it were admissible in
corroboration, precludes its sufficiency to carry Defendant’s
burden of_proof as the only evidence offered on the issue.

Initial Brief of Appellant Central Bank in the Eleventh Circuit.

The Eleventh Circuit affirmed, concluding in its unpublished
opinion that each of the prerequisites for admission of Garrabrant’s
recorded recollection under Fed. R. Evid. 803(5) was satisfied. All
other issues on appeal, including the attack on the sufficiency of
the evidence, were summarily dismissed for want of merit. This
petition of Central Bank followed.

Petitioner states in its petition that Garrabrant’s affidavit was
“fabricated” and submitted at trial with intent to deceive the trial
court and jury. This is not true. Petitioner’s Statement of Questions
Presented gives the impression the trial court found, as a matter of
fact or law, that Garrabrant’s affidavit was fabricated and false and
yet allowed it as evidence to establish an essential fact at trial, and
further, that the Eleventh Circuit affirmed this imagined
procedure.

Petitioner misleads this Court by giving this impression. The
facts are as follows: Transamerica called affiant Garrabrant to the

eg

2

stand and laid a foundation pursuant to Rule 803(5) to publish the
affidavit to the jury. Petitioner cross-examined affiant as to the
freshness of her recollection and objected to the publication on the
basis her recollection was not fresh. The trial court found a proper
foundation was set and overruled the objection. The jury found
Garrabrant credible and accepted her testimony. The Eleventh
Circuit found no error.

Thus, the only judicial determinations as to the status of the
affidavit are the trial and appellate courts’ rulings that the affidavit
is admissible evidence; further, there has been Only one
determination of the truth of the affidavit, and that is the jury’s
verdict finding the contents of the affidavit to be true. There is no
basis for petitioner to characterize this evidence as “fabricated”
and false and claim that the respondent and the trial and appellate
courts knew it to be such.

SUMMARY OF REASONS FOR DENYING THE WRIT

This Court need not review the Eleventh Circuit’s holding that
the trial court committed no error in admitting the recorded
recollection under Fed. R. Evid. 803(5). The trial court considered
the prerequisites for admission of this evidence as set out in Rule
803(5)and found that the evidence adduced from Garrabrant
provided a sufficient foundation for its admission. Facts Casting
doubt on the ability of the declarant to recall the matter go to the
weight of the evidence but not its admissibility. It was for the jury
to weigh the evidence. The Eleventh Circuit’s relatively simple
task on appeal was to compare the evidence adduced to the
requirements of Rule 803(5); its holding that sufficient evidence
was presented to admit the evidence for the jury’s consideration is
supported by the record and does not conflict with any decision of
any other circuit.

Therefore, the trial and appellate courts’ actions do not

6

constitute a departure from the usual course of proceedings under
Supreme Court Rule 10.

The due process clause of the Constitution is not involved in
this case as the power of the court was not used to deny the
petitioner of any property interest.

Petitioner petitions this Court to review the trial judge’s
discretionary ruling to admit certain’ evidence. This
straightforward issue, addressed and resolved in the Eleventh
Circuit, is not a proper one for this Court’s consideration.

REASONS FOR DENYING THE WRIT

I.

THERE IS NO CONFLICT BETWEEN THE
ELEVENTH CIRCUIT’S HOLDING AND ANY DECISION
OF ANY OTHER CIRCUIT.

A. Background to Rule 803(5).

Federal Ruie of Evidence 803(5) provides for the admission of
certain hearsay evidence where that evidence constitutes
“recorded recollection.” Recorded recollection is defined in the
rule asa

1. memorandum or record concerning a matter;

2. about which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify fully and

accurately;

3. shown to have been made or adopted by the witness when
the matter was fresh in the witness’ memory;

:
4. and to reflect that knowledge correctly.

The trial court exercises its discretion to determine if these
four foundation requirements are satisfied. United States y.
Patterson, 678 F.2d 774 (9th Cir. 1982). As the court explains:

[A] district judge’s ruling to admit evidence
will not be overturned absent abuse of
discretion. [citations omitted.] The trial judge
has broad discretion in determining whether
evidence is supported by proper foundation
..- Broad discretion for the trial judge is
clearly intended under Fed. R. Evid. 803(5), as
the advisory committee notes indicate: “No
attempt is made in the exception to spell out
the method of establishing the initial
knowledge or the contemporaniety and
accuracy of the record, leaving them to be
dealt with as the circumstances of the
particular case might indicate.”

Id. at 778-779.

Once the trial judge determines that sufficient evidence has
been provided as to the four elements of the foundation to allow
presentation of the evidence to the jury, the contents of tie
memorandum are read into evidence. The document itself is not
received. The truth of the contents is determined by the trier of fact.

Facts casting doubt on the ability of the declarant to recall the
matters in question go to the weight of the testimony, but do not
preclude admission of the statement. United States v. Williams, 571
F.2d 344, 349 (6th Cir. 1978). See also United States y. Senak, 527
F.2d 129, 139 (7th Cir. 1975), cert. denied, 425 U.S. 907 (1976)
(party opposed admission of recorded recollection on the grounds

er

that matter was not fresh in declarant’s mind when recorded; full
cross-examination allowed on this point and court holds that issue
of freshness was one that goes to the weight of the evidence and not
its admissibility); and see also, United States v. Edwards, 539 F.2d
689, 692 (9th Cir. 1976) (veracity and freshness of declarant’s
statements, when made or adopted, are subjects for impeachment
by cross-examination before the jury; statement need not be
recorded at time of event and there is no time limit for declarant to
have accurate recollection; the trial judge must be free to consider,
on a case-by-case basis, whether or not to admit the evidence).

B. The Eleventh Circuit’s holding does not conflict with any
decision of any other circuit.

Petitioner urges the Eleventh Circuit’s holding on the
application of Rule 803(5) conflicts with eight decisions from
other circuits. The petitioner is wrong, no conflict is demonstrated.
All eight cases were cited by petitioner in its appellate brief to, and
therefore were considered by, the Eleventh Circuit. The purported
conflict for each case is addressed in turn:

1. Dickinson Supply, Inc. v. Montana-Dakota Utilities Co.,
423 F.2d 106 (8th Cir. 1970). This case is cited by petitioner for the
proposition that a witness’ signature on a statement does not satisfy
the requirement that the witness’ memory be fresh when the
recollection is recorded.

Dickinson dealt with a witness who allegedly gave a statement
to a fire marshal. At trial this witness denied making the statement
and specifically denied the truth of the matters contained in the
statement but he admitted his signature on the statement. The trial
court allowed this statement to be received as substantive evidence
over the witness’ denials. This ruling was reversed on appeal. This
case actually stands for the proposition that where the declarant
specifically denies the truth of the recorded recollection, the

9

evidence cannot be received. /d. at 109, n.1. In light of this denial,
the court held the mere signing of a document is not enough to
establish its truthfulness and admissibility. The instant case
contains no such problem as the declarant, Garrabrant.
acknowledged she executed and adopted the statement and
resolutely claimed the statement to be truthful. Dickinson does not
preclude the result reached in this case. There is no conflict.

2. Goings v. United States, 377 F.2d 753 (8th Cir. 1967). This
case is cited by petitioner apparently for the proposition that even
where the declarant admits the truthfulness of the recorded
recollection, it is error to admit the recorded recollection because
to do so would allow trial by prepared statements.

Goings is acriminal case that expressly does not deal with past
recollection recorded. /d. at 760, n.8. The government, in Goings,
introduced the contents of a prior signed statement of a hostile
witness under the guise of refreshing the witness’ recollection. The
Eighth Circuit held that introducing the prior statement by this
subterfuge was error. The Eighth Circuit clearly and deliberately
distinguished the recorded recollection rule, Rule 803(5), from the
issue in Goings. Therefore, Goings is not relevant to the instant
case.

3. O'Malley v. U.S. Fidelity and Guarantee Co., 776 F.2d 494
(Sth Cir. 1985). Petitioner apparently cites this case for the
proposition that if the declarant testifies that he does not remember
reading the recorded recollection, it must be rejected.

O'Malley actually speaks to the final requirement of Rule
803(S) stated above, that the recorded recollection be accurate. In
this case, the Fifth Circuit held if the witness did not write the
recording, he must at least testify that he read it and found it to be
accurate. /d. at 500. In O’Mailey, the witness could not do so as he
had not read the report. /d. In this case, it is not contended

10

Garrabrant did not read the affidavit before signing it. To the
contrary, Garrabrant testified that when she executed the affidavit,
her memory of the facts was fresh and the contents of the affidavit
were correct. Thus, the reason for rejecting the recorded
recollection in O’Malley does not exist in this case.

4. Inre: Corrugated Container Antitrust Litigation, 756 F.2d
411 (Sth Cir. 1985). Petitioner cites this case for the proposition
that the affidavit, the recorded recollection, should have been
rejected because there was not specific testimony that the
recording reflected the witness’ knowledge correctly when the
matter was fresh in memory. While this may be a correct reading of
the cited case, it has no application to this case. Garrabrant
specifically testified that the affidavit correctly reflected her
knowledge when the matter was fresh in her memory. See
testimony set forth in appendix.

5. United States v. Judon, 567 F.2d 1289 (Sth Cir. 1978).
Petitioner cites this case for the proposition that the failure of a
witness to testify specifically that the recording correctly reflects
the witness’ knowledge when it was fresh in memory is reason for
excluding the evidence.

The Fifth Circuit ruled, in Judon, that a piece of paper witha
license tag number written on it should not have been admitted into
evidence under Rule 803(5) because no proper predicate was laid.
“In particular, there was no showing that the witness had
insufficient recollection to enable him to testify fully and
accurately at-trial.” /d. at 1294. This is the reason the Fifth Circuit
held the trial court should have excluded the recorded recollection.
The court then noted as an additional ground that the prosecution
failed to adduce specifically that the witness recorded the
recollection while the matter was fresh in his memory. /d. These
concerns do not exist in this case. Garrabrant testified specifically
both that she had no present recollection of the contents of the

1]

recording and that the recording was made when the matter was
fresh in her mind.

The Judon case also illustrates that the policy of discouraging
the use of statements “carefully prepared for purposes of litigation
under the supervision of attorneys, investigators, or claims
adjusters”, Fed. R. Evid. 803(5) advisory committee notes on 1972
proposed rules, is satisfied where the witness has insufficient
recollection to enable her to testify fully at trial. In other words, so
long as there is insufficient recollection at the time of trial, there is
no danger of a “trial by affidavit” envisioned by the petitioner. The
critical safeguard against such a danger, i.e., the failure of current
memory, is established in this case, as petitioner would readily
admit.

6. Cathey v. Johns-Manville Sales Corp., 776 F. 2d 1565 (6th
Cir. 1985). Petitioner cites this case for the proposition that
recorded recollection is not admissible under Rule 803(5) unless
made when the matter was fresh in memory. Of course, this
proposition is not in dispute. The trial judge in Cathey did not allow
the asbestos-exposed plaintiff to refresh his recollection by
referring to a list of products to which he may have been exposed.
The list was developed by plaintiff during trial for the benefit of
defendants, and was not intended to be used as a substitute for live
testimony. /d. at 1582.

The plaintiff complained on appeal that pursuant to Rule
803(5), he should have been allowed to refer to the list while
testifying. The reasons for the trial court’s actions are not manifest
from the opinion but the Sixth Circuit concluded the trial judge was
correct in not allowing the plaintiff to refer to the list. The plaintiff
was illiterate and the court stated “‘it is difficult to understand how a
written exposure list could have assisted him... .” /d. Further,
there was “little evidence to show that his exposure list correctly
reflected fresh knowledge,” /d. at 1583. Finally, “plaintiff had no

SL a

12

evidence to support the contention the list correctly reflected Mr.
Cathey’s actual exposure.” /d.

The Sixth Circuit’s affirmance of the trial judge’s ruling
highlights that it is for the trial court, as a matter of its discretion, to
evaluate the adequacy of the evidence to satisfy foundation
requirements for admission of evidence under Rule 803(5). In
Cathey, the trial court determined that an inadequate foundation
was laid. Cathey does not conflict with the case before this Court
because of the presence, in this case, of evidence that the matters
contained in the recorded recollection were, in fact, fresh in the
mind of the declarant when recorded, and that the recording was
accurate.

7. Felice v. Long Island R.R. Co., 426 F.2d 192 (2d Cir. 1970).
Petitioner cites this case for the proposition that the author of the
recorded recollection, if not the declarant, must testify or the
recorded recollection is inadmissible. This is an incorrect
statement of the law and a misconstruction of Felice. The recorded
recollection in Felice was a medical record made by a physician’s
employee. The witness, the physician, could not verify the record
and did not adopt it, as provided in Rule 803(5). Thus, no
foundation was laid to admit the evidence under Rule 803(5). /d. at
196. In the instant case, while Garrabrant did not draft the affidavit,
she adopted it by signing it and swearing to the truthfulness of its
contents. Because Garrabrant adopted the statement, the evidence
was properly received. In Felice there was no adoption, and
therefore the evidence should not have been received.

The law is clear, the drafter of the recording need not testify;
only the witness who adopts the statement must testify. United
States v. Williams, 571 F.2d 344, 348 (6th Cir. 1978) (“when the
verifying witness has not prepared the report, but merely examined
it and found it to be accurate, he has adopted the report, and it is
therefore admissible”). The legislative history for adding the

13

“adoption” language to Rule 803(S5), set out in 11 Moore’s Federal
Practice, Art. VII, p. 110, and cited in Williams, supra, reveals no
requirement that the author or drafter of recorded recollection, as
well as the declarant, testify before the recording is admissible.
Petitioner cites no authority or precedent for its contrary reading of
Rule 803(5).

8. United States v. Schwartz, 390 F.2d 1 (3d Cir. 1968). The
petitioner cites this case for the proposition that where guarantees
of truthfulness are outweighed by countervailing considerations,
the recorded recollection should be excluded. There can be no
quarrel with this general proposition. But Schwartz presents no
conflict with the Eleventh Circuit’s opinion in this case. Schwartz
dealt with the admissibility of a letter drafted by one criminal co-
defendant in the trial of the second codefendant. The letter was
addressed to the judge in the first defendant’s trial. The letter
requested a lenient sentence and cast the blame for the crime on the
second co-defendant. At the trial of the second co-defendant, the
first co-defendant testified and repudiated both the accuracy of the
letter as well as his signature.

The trial court permitted the government to introduce the
letter as a prior inconsistent statement and received it as
substantive evidence. The Third Circuit reversed stating that the
guarantees of trustworthiness, i.e., that it was actually prepared by
the first co-defendant’s attorney and that the witness admitted he
would not sign something known by him to be false, were
outweighed by the circumstances that the document “was made
almost seven years after the events therein, and an obvious effort to
obtain a light sentence, not under oath, and there was no
Opportunity for cross-examination. The imminence of sentence
alone was conducive to falsification rather than to trustfulness. ”
Id. at 5-6.

Schwartz sets out no rule of law that was ignored or

14

contradicted by the Eleventh Circuit. Schwartz only points out that
the trial judge must balance the guarantees of truthfulness against
countervailing considerations. In Schwartz, the balance tipped to
exclusion. In this case, the trial judge found they tipped to
admission. The facts of the two cases are far different and Schwartz
does not command a result different than that reached in this case.

Even where the only guarantee of trustworthiness of the
accuracy of the record is the declarant’s assurance that he would
not have signed or prepared the record unless he knew it to be true,
the evidence will be admitted. 3 Wigmore, Evidence, 747
(Chadbourn Rev. 1970).

Recall that the witness must be able now to
assert that the record accurately represented
his knowledge and recollection atthe time...
In general, it is conceded that when the
witness’ certainty rests on his usual habit or
course of business in making memoranda or
records, it is sufficient . . . Here the witness is
really calling to his aid, not his specific
business custom, but his general moral
attitude; but, as a rule, the indication should be
and is treated as sufficient.

Id. The trial judge asked Garrabrant:

THE COURT: | believe you are telling us that
you would not have signed it under oath if it
were not true?

THE WITNESS: Yes, sir.

* = od

THE COURT: Well, is that because of habit,

a ARN I Ecc

15

your custom of not to sign anything that is not
factual if it’s under oath?

THE WITNESS: Yes,sir.

(T40-41)

The conclusion of Wigmore is that this assurance, standing on
its own, is legally sufficient to admit the evidence.' Once admitted
past this minimal barrier, any conflict or weakness in the
declara it’s testimony goes to the weight of the evidence.

Petitioner never demonstrated that the evidence of
trustworthiness was insufficient for admission of the recording.
Petitioner can only point to weaknesses or purported
inconsistencies in the evidence. But these weaknesses went only to
the weight of the evidence, and to this issue, the jury spoke.
Petitioner seeks to have the evidence reweighed by this Court, and
if granted certiorari, will ask this Court to do so. Because the time
for finding facts has passed, its petition should be denied.

II. There was no departure from usual course of proceedings
requiring correction by this Court.

Respondent relies on its argument in section I, supra, that the
ruling of the trial court was correct, and the affirmance by the
Eleventh Circuit proper. As such, there was no departure from
usual and ordinary course of proceeding requiring correction by
this Court pursuant to Supreme Court Rule 10.

1. In this case, the guarantees of trustworthiness went far beyond this minimal
requirement: Garrabrant unequivocally adopted the recording; swore to the truth of the
contents when she signed the affidavit; she recalled the circumstances under which she
signed the affidavit; swore the contents of the affidavit were fresh in mind when
adopted; swore the contents of the affidavit correctly reflected her then-fresh

recollection; swore she would not have executed the affidavit unless the contents were
true and correct.

16

III. The petitioner’s due process rights were not violated by the
trial court.

The petitioner contends that the trial judge’s ruling allowing
the admission of the recorded recollection denied its due process
rights. This argument is without basis. To invoke this Court’s
jurisdiction on the basis of a deprivation of constitutional right,
petitioner must show that it was deprived of a liberty or property
interest by virtue of some state action. Petitioner has been deprived
of neither by the trial court’s ruling. The cases cited by petitioner
do not support its claims.

In Societe Internationale, Etc. v. Rogers, 357 U.S. 197 (1958),
the interest involved was the plaintiff’s right to bring its action
before the court for hearing. The state action involved was che
power of the court under Fed. R. Civ. P. 37(b) to dismiss the
plaintiff’s action for failure to comply with a pre-trial discovery
order. This Court held that where such a failure is due to inability
and not to bad faith, the power of the court should not be used to
deprive a party of its right to be heard. Withholding its power to
dismiss the action was particularly appropriate in the context of the
suit, this Court held, where the federal government had seized,
without notice, certain personal property of plaintiff.

No such seizure or deprivation of process occurred in this
case. The trial court simply overruled petitioner’s objection to the
admission of certain evidence. Adverse evidentiary rulings, in
private party civil cases, are not the usual stuff of due process
violations, and this case presents no exception.

Schlagenhauf v. Holder, 379 U.S. 104 (1964), cited by
petitioner, does not involve the due process clause and presents no
basis for this Court to review the Eleventh Circuit’s decision.
Petitioner believes Schlagenhauf provides that granting a writ of
certiorari is proper where the construction or application of a

17

Federal Rule of Evidence is contested. In Schlagenhauf, this Court
granted a writ of certiorari “to review undecided questions
concerning the validity and construction of Fed. R. Civ. Pro. 35.”
Id. at 109. But there are no undecided questions regarding the
construction of Rule 803(5) raised in this case. What is contested is
the application of the rule. But the contested application of a Rule
of Evidence should not be grounds to involve this Court’s
jurisdiction. And certainly, this is not the result Schlagenhauf
provides.

The balance of cases cited by petitioner in this section are
opinions on criminal appeals. Criminal prosecutions clearly
invoke due process concerns as the state is acting to deprive the
defendants of their property and liberty interests. But no action of
the state acting to deprive the petitioner of a property interest
occurred in this case. These criminal cases are inappropriately
cited. The argument is misplaced and does not properly call for this
Court’s review.

CONCLUSION
The petition for a writ of certiorari should be denied.

Respectfully submitted,

LEE CRAIG
BUTLER, BURNETTE & PAPPAS
Attorneys for Respondent

la

APPENDIX A

Following are the pertinent excerpts from the trial transcript of
the examination of witness Judy Garrabrant.

[Questions by Respondent’s Counsel.]

Q. Let me show you a document which has
not been marked for identification and ask you
to examine it.

ad * -

Q. Have youreadthatdocument? A. Yes.
Sir.

Q. What is that documententitled?

1” ” *

A. Oh, title? It’s an affidavit.

* - *

Q. Does that document bear a
Signature? A. Yes, sir, itdoes.

Q. Whose signature? A. It has mine and
the witness.

Q. Are you able to identify that as your
Signature? A. Yes, sir.

Q. What is the date on that
document? A. The 18th of September,
1987.

————————————

2a
AppendixA

Q. Is that a true and accurate copy of an
affidavitsigned by youonthatdate? A. Yes,
Sir.

Q. Now, do you presently today, Ms.
Garrabrant, have sufficient recollection to
enable you to testify fully and accurately about
the matters set forth inthataffidavit? A. No,
Ido not.

Q. However, at the time you swore the
affidavit, were the matters set forth therein
fresh in your memory at this time? A. Yes,
Sif.

Q. And at the time you swore the affidavit,
did you have knowledge and recollection of the
matters set forth in that affidavit? A. Yes |
did.

Q. Since you stated that you signed that
affidavit under oath, I assume it correctly
reflects your knowledge at that time; is that a
fairstatement? A. Yes, sir, uh-huh.

[T 34-36].

Q. Forclarification, Ma'am, do you presently
recall that when you signed this affidavit, it
was true? A. At the time I signed the
affidavit, yes, I’m—I wouldn’t have signed itif
it wasn'ttrue.

[T 42].

(T 43]

~

Ja

AppendixA
[Questions by petitioner’s counsel]
Q. Do you recall the circumstances under

which you signed that affidavit? A. Yes, I
do

Q. My question was that when you say you
recall today that it was true then, is that because
itwas morerecentintime? A. Right. It was
fresher in my mind at that time, yes sir.

Q. Thantoday? A. Thantoday.

(Questions by the Court]

THE COURT: I believe you are telling us that
you would not have signed it under oath if it
were not true?

THE WITNESS: Yes, sir.

THE COURT: But you reaily have no
recollection of the factual matters that may be
contained in that affidavit?

THE WITNESS: Notatthe present time.

THE COURT: And you don’t remember
whether you remembered it at the time you

da
AppendixA
signed it?

THE WITNESS: I don’t think I would have
signed it if I didn’t remember.

THE COURT: Well is that because of habit,
your custom of not to sign anything that is not
factual if it’s under oath?

THE WITNESS: Yes, sir.

[T. 40-41]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1285%3A2. Public record. Not legal advice.