Rule 803(6) and 902(11) Endorse Electronic Business Records as Self-Authenticating: United States v. Conde

Introduction

United States v. Conde (2nd Cir. Apr. 11, 2025) is a pivotal Second Circuit decision regarding the admission of electronically generated business records under Federal Rules of Evidence 803(6) and 902(11). Salifou Conde, a former courier for a private delivery company, was convicted of bank fraud, wire fraud, and conspiracy after misappropriating rent‐assistance checks intended for New York City Human Resources Administration (HRA) beneficiaries. On appeal, Conde challenged the admission of a one‐page record from his cable/internet provider (Optimum d/b/a Altice USA) showing that fraud proceeds funded three monthly payments on an account in his name. Conde argued that this document was neither a true business record nor properly self-authenticated, and that its admission violated his Sixth Amendment right to confront adverse witnesses. The Second Circuit rejected these contentions, clarifying how electronic data compilations satisfy the business-records exception and remain self-authenticating even when printed in response to litigation demands.

Summary of the Judgment

The Court of Appeals affirmed the district court’s ruling that:

The Optimum Payment Record qualified as a “record of an act, event, condition, opinion, or diagnosis” under Rule 803(6) because it was generated contemporaneously and maintained in the ordinary course of Optimum’s business.
The record was self-authenticating under Rule 902(11) via a custodian’s sworn declaration, eliminating any need for live testimony to establish foundation.
Printing or extracting data from an electronic database in response to a subpoena does not transform underlying business records into hearsay prepared “in anticipation of litigation.”
Because the record was properly admitted under the business-records exception, its introduction did not violate Conde’s Sixth Amendment Confrontation Clause rights.

Analysis

Precedents Cited

Potamkin Cadillac Corp. v. B.R.I. Coverage Corp. (2d Cir. 1994): Held that business records printed from an electronic archive may be admitted if they meet Rule 803(6) criteria.
United States v. Komasa (2d Cir. 2014): Confirmed the custodian need not have personal knowledge of every step in an electronic record’s creation, so long as the record is kept in the ordinary course.
United States v. D’Agostino (2d Cir. 2016): Upheld admission of IRS account transcripts produced shortly before trial as business records, emphasizing that the timing of a printout does not undermine the contemporaneous entry of data.
United States v. Nixon (6th Cir. 2012) and United States v. Fujii (7th Cir. 2002): Each recognized that electronic database query results are business records if underlying entries were made in the regular course.
United States v. Burgos-Montes (1st Cir. 2015): Held that data pulled from a company’s ordinary‐course database in response to a subpoena “falls under” Rule 803(6), even if the print‐out itself was created for litigation.

Legal Reasoning

The court’s analysis focused on three core elements:

Scope of “Record” under Rule 803(6) and Rule 101(b)(4). The Evidence Rules define “record” to include “data compilations, in any form,” and expressly encompass electronically stored information. Whether data reside in paper files or digital databases, entries made “at or near the time” by a person with knowledge and maintained in the ordinary course satisfy Rule 803(6)(A)–(C).
Self-Authentication under Rule 902(11). A properly worded custodian’s declaration, sworn under penalty of perjury, establishes that the proffered electronic document was made and kept in the ordinary course of business as a regular practice. Once certified, such a record “require[s] no extrinsic evidence of authenticity.”
Trustworthiness and Confrontation Clause. The opponent must show “lack of trustworthiness,” but mere inability to match certain older transactions (as noted on the bottom half of the Optimum printout) did not cast doubt on the reliability of the three payments at issue. Because the document fell within the hearsay exception, its admission did not trigger the Confrontation Clause.

Impact

United States v. Conde reinforces and clarifies the federal courts’ evolving practice of admitting business records in electronic form. Key takeaways include:

Courts will look to the regularity and contemporaneity of data entry, not the moment of retrieval or the format of printout.
Data compilations and electronic summaries are treated as original records if the underlying entries meet Rule 803(6) criteria.
Self-authentication via Rule 902(11) expedites trials by obviating the need for live foundation witnesses, reducing costs and logistical burdens.
The decision undercuts Confrontation Clause challenges where records are properly admitted as business records.

Complex Concepts Simplified

Hearsay: An out-of-court statement offered to prove the truth of its content. Generally inadmissible unless an exception applies.
Business-Records Exception (Rule 803(6)): Allows admission of records regularly made and kept in the ordinary course of a business. The rationale is that businesses rely on accurate recordkeeping in daily operations.
Self-Authentication (Rule 902(11)): Certain business records come with a sworn certification from a records custodian, making them admissible without further proof of authenticity.
Data Compilation: Any means of storing information—spreadsheets, databases, computer files—not limited to paper documents.
Confrontation Clause: The Sixth Amendment right of a criminal defendant to “confront” (cross-examine) the witnesses against them. It does not apply to non-testimonial records admitted under a hearsay exception.

Conclusion

United States v. Conde solidifies the principle that electronically stored business records—whether original entries or queried printouts—are admissible if they meet the foundational requirements of Rules 803(6) and 902(11). By endorsing data compilations as “records” and validating self-authentication procedures, the Second Circuit has modernized evidentiary practice for the digital age. This decision will streamline future prosecutions and civil litigations involving electronic records, ensuring reliability without sacrificing defendants’ constitutional rights.