Self-Authenticating Electronic Business Records under Fed. R. Evid. 803(6) & 902(11): United States v. Conde

Introduction

United States v. Conde, 22-250 (2d Cir. Apr. 11, 2025), involves the admissibility of an electronically generated document from a cable and internet service provider’s database. The defendant, Salifou Conde, was convicted in the Southern District of New York of wire fraud (18 U.S.C. § 1343), bank fraud (18 U.S.C. § 1344), and conspiracy (18 U.S.C. § 1349) arising out of the misappropriation of rent‐assistance checks issued by New York City’s Human Resources Administration. The central issue on appeal was whether the “Optimum Payment Record”—a one‐page chart produced in response to a government subpoena and identifying three credit‐card payments on an account in Conde’s name—could be admitted as a self-authenticating business record under Fed. R. Evid. 803(6) and 902(11) without violating the Confrontation Clause.

Summary of the Judgment

The Second Circuit affirmed the district court’s decision to admit the Optimum Payment Record. The panel held that:

The document qualified as a “record” and “data compilation” under Rule 803(6), even though it was printed in response to a subpoena and not kept in paper form in the ordinary course of business.
The Rule 902(11) certification from the cable provider’s custodian, attesting that the data were made contemporaneously by someone with knowledge and maintained in the ordinary course, satisfied the self-authentication requirements.
Admission of the record did not violate the Confrontation Clause because properly authenticated business records are non‐testimonial.

Analysis

Precedents Cited

Fed. R. Evid. 803(6) & 902(11) (Business Records Exception & Self-Authentication): The rules authorize admission of routine business data without live testimony if the foundational criteria are met and a proper certification is provided.
Potamkin Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d 627 (2d Cir. 1994): Held that computerized records printed out in the ordinary course are admissible under Rule 803(6).
Komasa, 767 F.3d 151 (2d Cir. 2014): Reaffirmed that no witness needs personal knowledge of the original creation, so long as a custodian or qualified witness certifies compliance with the rule.
D’Agostino, 638 F. App’x 51 (2d Cir. 2016): Approved admission of IRS database transcripts printed pretrial, emphasizing that the critical focus is when the data were entered, not when they were printed.
Nixon, 694 F.3d 623 (6th Cir. 2012): Held that query results from an electronic database are business records even if created in response to litigation.

Legal Reasoning

The court applied the following principles:

Definition of “Record”: Under Rule 101(b)(4), “record” includes “data compilations” in any form, and electronically stored information is encompassed.
Rule 803(6)(A)–(C) Requirements: The Optimum data were made at or near the time of occurrence by someone with knowledge (payment‐processing system), kept in the regular course of business, and it was a regular practice to log payments against customer accounts.
Rule 803(6)(D) Foundation by Certification: The Altice USA custodian’s sworn declaration under Rule 902(11) attested that the chart was a true and correct compilation of the provider’s routine records and established authenticity without live witness testimony.
Rule 803(6)(E) Trustworthiness: The defendant’s argument—that Optimum’s inability to match two other payments undercut reliability—was unavailing, as the declaration and the record itself showed a routine, reliable database inquiry.
Confrontation Clause: Because properly authenticated business records are admissible hearsay under a firmly rooted exception, they are non‐testimonial and do not trigger Sixth Amendment concerns.

Impact

This decision clarifies and reinforces that:

Electronic database extracts and summaries generated in response to subpoenas may be treated as business records so long as they meet the core criteria of Rule 803(6).
Rule 902(11) certifications obviate the need for foundation witnesses in many electronic‐data contexts, reducing trial complexity.
The distinction between records “prepared for litigation” and routinely maintained data is real but turns on whether the underlying data entry occurred in the ordinary course of business.
Future cases involving digital transaction logs, telecommunications data, and other electronically stored business information can rely on this precedent to authenticate business records swiftly.

Complex Concepts Simplified

Hearsay vs. Business Records Exception
Hearsay is an out‐of‐court statement offered to prove its truth. Business records are an exception because they are presumed reliable when made routinely by people with knowledge.

Rule 803(6) Requirements
1. Made by a knowledgeable person at/near the time of the event.
2. Kept in the ordinary course of business.
3. Regular practice to make such a record.
4. Shown by testimony or a proper certification.
5. No indication of untrustworthiness.

Self-Authentication under Rule 902(11)
A written certification by a records custodian saying “this is how and when we routinely kept these records” lets the court admit the documents without calling the custodian to testify in person.

Confrontation Clause
The Sixth Amendment gives a criminal defendant the right to confront witnesses against them. Business records admitted under Rule 803(6) are non-testimonial, so they don’t require live witness confrontation.

Conclusion

United States v. Conde sets a clear precedent in the digital era: courts may admit electronic data compilations—such as subpoena‐generated payment charts from a cable provider—as self-authenticating business records under Fed. R. Evid. 803(6) and 902(11). This decision streamlines the admission of routine electronic records, underscores the breadth of the business-records exception, and affirms that such records do not implicate the Confrontation Clause. As businesses increasingly rely on electronic systems, Conde provides a vital framework for admitting data-stored‐in-database evidence with minimal foundation burden.