Citation Edit

United States v. Cepeda Penes, 577 F.2d 754 (1st Cir. 1978) (full-text).

Factual Background Edit

Defendant, Orlando Cepeda Penes, and another person were charged with possession of marijuana with intent to distribute. Cepeda was also charged with importing marijuana.

Trial Court Proceedings Edit

During the, trial, the Government sought to rebut Cepeda's denial that he had made admissions during the arrest. One of the admissions Cepeda denied on direct examination was that he had told the arresting agents that he had committed the crime because he owed back taxes in Puerto Rico. On cross examination, Cepeda testified that he had filed his returns and had paid all back taxes. The Government then called to the stand an employee of the Tax Bureau who testified that a computer search revealed that Cepeda had not filed returns from 1972-1975. A "negative certification"[1] was issued on the basis of this search, and admitted into evidence.

Cepeda's counsel objected to this evidence because no notice had been given and because it was hearsay, since no cross examination of the contributors to the computerized information could be undertaken. The evidence was nonetheless admitted. Both defendants were convicted.

Appellate Court Proceedings Edit

On appeal, Cepeda claimed, as error, inter alia, the admission of the "negative certification" issued on the basis of a computer search and the line of questioning relating to it. The court of appeals affirmed the lower court ruling that the "negative certification" was properly admitted into evidence under Fed. R. Evid., Rule 403.[2]

The court reasoned that, as in United States v. Dioguardi,[3] the computerized data used to determine tax filings was not complicated, and any prejudice due to lack of notice was minimal. The court rejected the notion, based upon United States v. Ruffin,[4] that the use of the "negative certification," based on a computerized public record constituted "indirect hearsay," and should have been excluded under Fed. R. Evid., Rule 803(8)(B)&(C).[5]

The court reasoned that the limitation in Rules 803(8)(B)&(C) against the admissibility of public records against a criminal defendant was not contained in Fed. R. Evid., Rule 803(10),[6] which permits a "negative certification" to be offered into evidence. The evidence was thus admissible under Rule 803(10).


  1. Fed. R. Civ. P. 44(b).
  2. Rule 403, Fed. R. Evid., provides:
    Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
    The court reasoned that the purpose of introducing the evidence was not merely to affect Cepeda's credibility, but to resuscitate the government's evidence that Cepeda had admitted the crime and his motive in committing it.
  3. 428 F.2d 1033, 1038 (2d Cir.) (full-text), cert. denied, 400 U.S. 825 (1970).
  4. 575 F.2d 346 (2d Cir. 1978) (full-text).
  5. Fed. R. Evid., Rule 802(8)(B) & (C) provide:
    The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
    (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (B) matters 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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
  6. Fed. R. Evid., Rule 803(10) provides:
    The following are not excluded by the hearsay rule, even though the declarant is available 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 or nonexistence of a matter of which a record, report, statement, or data 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.

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