US v. Ugljesa Pantic

Filing 920090123

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4926

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. UGLJESA PANTIC, Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:06-cr-00479-NCT)

Argued:

October 29, 2008

Decided:

January 23, 2009

Before WILKINSON and DUNCAN, Circuit Judges, and Richard BENNETT, United States District Judge for the District Maryland, sitting by designation.

D. of

Affirmed by unpublished per curiam opinion.

ARGUED: K. E. Krispen Culbertson, Greensboro, North Carolina, for Appellant. Patrick Auld, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ugljesa Pantic appeals his conviction on charges of making materially false statements on his United States immigration

applications in violation of 18 U.S.C. § 1546(a), specifically failure to report his military service in the Army of the

Republika Srpska (the "VRS") during the Bosnian Civil War of 1992-1995. During pretrial hearing and trial, Pantic

unsuccessfully challenged the admissibility of military records that were seized from the Zvornik Brigade headquarters that

revealed his former military service in the VRS.

Because the

district court did not abuse its discretion in admitting the records as authenticated under Fed. R. Evid. 901 and within the Fed. R. Evid. 803(8) hearsay exception for public records, we affirm. 1

I. The International Criminal Tribunal for the Former

Yugoslavia (the "ICTY") in The Hague investigates alleged war crimes that occurred during the Bosnian Civil War. 180.)
1

(J.A. 35,

The ICTY investigated the July 1995 Srebrenica massacre,

The related case of United States v. Vidacak, No. 07-4904 (4th Cir. Jan. 23, 2009), concerns the same issue with respect to the admissibility of military documents seized from the Zvornik Brigade headquarters. 2

wherein Bratunac

elements

of

the

VRS, a

primarily United

from

the

Zvornik

and and

Brigades,

over-ran

Nations

safe-area

executed thousands of Bosnian Muslims.

In the spring of 1998,

ICTY agents executed a search warrant at the Zvornik Brigade headquarters and seized various military records. 201.) to (J.A. 43,

The ICTY provided a list of persons who served in the VRS Department and of Homeland Security's ("ICE"), Department to be of

the

Immigration

Customs

Enforcement

cross-

referenced against a database of refugees.

As a result of this

inquiry, it was determined that Pantic had served in the VRS. (J.A. 217.) On December 11, 2006, ICE agents located Pantic at his home and with the aid of an interpreter, Pantic waived his Miranda rights and admitted that he served in the VRS during the Bosnian Civil War and that he had knowingly falsified his U.S.

immigration applications to conceal that service. 307-14.) On exclude, April inter 4, 2007, alia, Pantic four filed exhibits a motion of

(J.A. 281-83,

in

limine

to

military

records (J.A.

indicating Pantic's military service during 1992-1995. 11-14.) with two

The district court held a pre-trial hearing jointly defendants in related cases to consider the issue.

(J.A. 16-173.)

The records were ultimately admitted at trial 3

over

Pantic's

objection. and

(J.A.

46-47.) with the

Richard ICTY,

Butler,

a to

military

analyst

researcher

testified

demonstrate the authenticity of the records and explained his involvement in the seizure, cataloguing, and storage of the

records from the Zvornik Brigade headquarters.

(J.A. 31, 176.)

At the close of trial, Pantic was found guilty and sentenced to time served with three years of supervised release and a special assessment of $100. (J.A. 341-46.)

II. This Court "review[s] decisions to admit evidence for abuse of discretion." Cir. 2005). United States v. Forrest, 429 F.3d 73, 79 (4th

Accord United States v. Bostian, 59 F.3d 474, 480

(4th Cir. 1995); United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992). "Under the abuse of discretion standard, this

Court may not substitute its judgment for that of the district court; court's rather, exercise [it] of must determine whether the the [district] and the

discretion,

considering

law

facts, was arbitrary or capricious." F.3d 1286, 1289 (4th Cir. 1995). A. Pantic contends that the

United States v. Mason, 52

district

court

abused

its

discretion in admitting the military records since they were improperly authenticated. He claims that the records are not 4

self-authenticating district court

under to

Fed make

R. a

Evid.

902(3), that

and the

that

the

failed

finding

purported

military records were "public documents."

In addition, Pantic

argues that the Government failed to show sufficient indications of reliability to meet the authentication requirements under

Fed. R. Evid. 901(a).

He notes that Government witness Richard

Butler did not testify as to how the records were created and their specific history prior to their seizure in 1998. To satisfy the burden of authentication under Fed. R. Evid. 901(a), a proponent need only present "evidence sufficient to support a finding that the matter in question is what the

proponent claims." 2

Fed. R. Evid. 901(a).

The district court

plays a gate-keeping role in assessing whether the proponent has established a suitable foundation from which the jury could

reasonably find that the evidence is authentic. v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992).

United States The proponent's

burden of authentication is slight--only a prima facie showing is required. See United States v. Goichman, 547 F.2d 778, 784

(3d Cir. 1976) ("There need only be a prima facie showing, to

Despite the attention provided by Pantic to the issue, the Government never contended that the military records qualified as self-authenticating documents under Fed. R. Evid. 902(3). Since we find that the records were sufficiently authenticated under Fed. R. Evid. 901, we need not address the issue with respect to Rule 902(3).

2

5

the

court,

of

authenticity, See also,

not

a

full

argument Evidence of

on § a

admissibility."). 901.02[3] (2008)

Weinstein's speaking,

Federal the

("Generally

proponent

proffered exhibit needs only to make a prima facie showing that the exhibit is what the proponent claims it to be."). The district court did not abuse its discretion in finding that the Government Butler's a prima satisfied its burden of authentication. sufficient to

Richard establish

testimony facie

was case

independently that the

military

documents

revealed Pantic's participation in the VRS during the Bosnian Civil War. Butler testified in detail about his involvement in

the seizure, cataloguing, and storage of the records from the Zvornik Brigade headquarters. Although he never accounted for

the history of the documents prior to their seizure, under Rule 901, a proponent need not establish a perfect chain of custody for documentary evidence to support their admissibility. States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. United 1989)

("deficiencies in the chain of custody go to the weight of the evidence, not its admissibility; once admitted, the jury

evaluates the defects, and based on its evaluation, may accept or disregard the evidence."). Indeed, sufficient indicia of

reliability existed to support the admissibility of the records. The documents were found where they would be expected to be found--the Zvornik Brigade headquarters 6 that was still

functioning

at

the

time

of

the

search.

They

bore

unique

indexing numbers that rendered them readily identifiable as VRS records from the Bosnian Civil War. Pantic, on the other hand,

has offered no basis for inferring that the records were forged or altered. B. Pantic also argues that the military records should have been excluded as inadmissible hearsay and that the exception set forth in Fed. R. Evid. 803(8) is not applicable under the facts of the case. However, we find that the records clearly fall

within the hearsay exception of Fed. R. Evid. 803(8) in that they constitute in "[r]ecords, any (A) form, the reports, or public statements, offices of the of or data

compilations, setting forth

agencies, office or

activities

agency . . . ." applicable constitute unsupported since "public and

Pantic contends that this exception is not the records at issue But cannot be said is to both

documents."

this

argument admit

unavailing--courts

regularly

foreign

records pursuant to this exception. Demjanjuk, 367 F.3d 623, 631 (6th

See, e.g., United States v. Cir. 2004) (Nazi German

Service Identity Card); United States v. Garland, 991 F.2d 328, 334-35 Grady, (6th 544 Cir. F.2d 1993) 598, (Ghanian 604 (2d judgment); Cir. 1976) United States v.

(Northern

Ireland

constabulary firearms report). 7

The

contents

of

the

military

records

themselves

confirm

that they are records of the activities of the VRS, and contrary to Pantic's suggestion, Rule 803(8) does not require a

sponsoring witness.

See, e.g., United States v. Doyle, 130 F.3d

523, 546 (2d Cir. 1997); United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997). Nonetheless, Butler's

testimony regarding the seizure, cataloguing, and storage of the records, their and his identification and of the documents based upon

indexing

numbers their

their

distinctive under

characteristics the Rule 808(8)

further

reinforced

qualification

hearsay exception.

III. The district court did not abuse its discretion in

admitting the military records revealing Pantic's involvement in the VRS. 3 Accordingly, we affirm. AFFIRMED

Pantic argues that because the foreign military documents were inadmissible, his confession was also inadmissible under the corpus delicti rule, as established in United States v. Sapperstein, 312 F.2d 694 (4th Cir. 1963). (Appellant Br. 25.) Under this rule a defendant's "extrajudicial confession must be corroborated as to the corpus delicti." Sapperstein, 312 F.2d at 696. However, because we hold that the district court did not err in admitting the VRS records, Pantic's corpus delicti claim is moot.

3

8