     Case: 14-40845       Document: 00513025575         Page: 1     Date Filed: 04/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40845
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             April 30, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff – Appellee

v.

DAVID SAGUIL,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-55-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       David Saguil was convicted of two counts of production of child
pornography, in violation of 18 U.S.C. § 2251(a) and (e).                     At trial, the
Government offered in evidence a Sony video camera seized during a search of
Saguil’s residence. On a label affixed to the bottom of the camera was an
inscription:    “Made in Japan”.         Saguil objected to the introduction of the
inscription, claiming it was hearsay. The district court overruled Saguil’s


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 14-40845

objection, ruling the inscription was admissible under Federal Rule of
Evidence 807, the residual exception to the hearsay rule, to prove the video
camera traveled in, or affected, interstate or foreign commerce. See 18 U.S.C.
§ 2251(a).
      For his only issue on appeal, Saguil claims the court abused its discretion
by admitting the inscription in evidence. Evidentiary rulings are reviewed for
abuse of discretion. E.g., United States v. Boyd, 773 F.3d 637, 643 (5th Cir.
2014), petition for cert. filed, (31 Mar. 2015) (No. 14-9121). In applying the
residual exception to the hearsay rule, district courts have “considerable
discretion”, and this court “will not disturb the . . . application of the exception
absent a definite and firm conviction that the court made a clear error of
judgment” in weighing the relevant factors, discussed infra. United States v.
Loalzo-Vasquez, 735 F.2d 153, 157 (5th Cir. 1984) (citation and internal
quotation marks omitted).
      Under Rule 807, hearsay statements are admissible if they have
circumstantial guarantees of trustworthiness similar to the other hearsay
exceptions and the district court determines the statements are material,
probative, and in the interests of justice. Fed. R. Evid. 807; see also United
States v. El-Mezain, 664 F.3d 467, 497 (5th Cir. 2011). Although Rule 807
contemplates the consideration of multiple factors, the “lodestar of the residual
hearsay exception analysis” is on the “equivalent circumstantial guarantees of
trustworthiness” requirement.       El-Mezain, 664 F.3d at 498 (citation and
internal quotation marks omitted); see also United States v. Walker, 410 F.3d
754, 758 (5th Cir. 2005). “The determination of trustworthiness is drawn from
the totality of the circumstances surrounding the making of the statement”,
but “cannot stem from other corroborating evidence”. El-Mezain, 664 F.3d at
498 (citation and internal quotation marks omitted). The evidence “must be at



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least as reliable as evidence admitted under a firmly rooted hearsay exception”
and “must similarly be so trustworthy that adversarial testing would add little
to its reliability”. Id. (citation and internal quotation marks omitted).
      Three circuits have rejected the claim that a manufacturer’s inscription
on a product is inadmissible hearsay. E.g., United States v. Koch, 625 F.3d
470, 480 (8th Cir. 2010); United States v. Alvarez, 972 F.2d 1000, 1004 (9th Cir.
1992), overruled on other grounds by Kawashima v. Mukasey, 530 F.3d 1111,
1116 (9th Cir. 2008) (“An inscription placed on a firearm by the manufacturer
is . . . a mechanical trace and not a statement for purposes of [Rule 801(c)
(definition of hearsay)]”.); United States v. Thody, 978 F.2d 625, 630-31 (10th
Cir. 1992) (manufacturer’s imprint in the gun is not hearsay). Another circuit,
in a case similar to the one at hand, “accept[ed] for purposes of analysis” that
inscriptions describing the country of origin are hearsay, and thus admissible
only if an exception to the hearsay rule applies. United States v. Burdulis, 753
F.3d 255, 263 (1st Cir. 2014), cert. denied, 135 S. Ct. 467 (2014). Whether the
manufacturer’s inscription is a hearsay statement or merely circumstantial
physical evidence need not be decided, because, under either theory, the court
did not abuse its discretion.
      Assuming, as the district court did, that the inscription is a hearsay
statement, the inscription satisfies the residual exception. It has “equivalent
guarantees of trustworthiness” as the guarantees of Federal Rules of Evidence
803 and 804 because such inscriptions are required by law, 19 U.S.C. § 1304(a),
and false designations of origin give rise to civil liability, 15 U.S.C. § 1125.
Therefore, the inscription bears significant similarity to other forms of
evidence admissible under the enumerated hearsay exceptions. E.g., United
States v. Towns, 718 F.3d 404, 408 (5th Cir. 2013) (“[F]irearm records that gun
shops were forced to maintain by law were business records [because] a



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company could lose corporate privileges for failing to maintain them
properly”.).    In addition, under Federal Rule of Evidence 902(7), “[a]n
inscription, sign, tag, or label purporting to have been affixed in the course of
business      and   indicating   origin”   is   self-authenticating.    Thus,    the
manufacturer’s inscription statement (“Made in Japan”) is self-authenticating
and requires no extrinsic evidence of authenticity to be admitted.
      The remaining factors likewise favor admission of the manufacturer’s
inscription. It was offered as evidence of a material fact: to prove an element
of the offense. See 18 U.S.C. § 2251(a). The inscription was also more probative
on the issue of whether the video camera traveled in interstate or foreign
commerce than any other evidence that could have been obtained through
reasonable efforts. E.g., Loalza-Vasquez, 735 F.2d at 158. Last, the admission
of the inscription served the purposes of the Rules of Evidence and the interests
of justice.    See Fed. R. Evid. 102 (construe Federal Rules of Evidence to
eliminate unjustifiable expense and delay); see also Dartez v. Fibreboard Corp.,
765 F.2d 456, 462 (5th Cir. 1985) (noting Congress provided the exception “to
protect the integrity of the specifically enumerated exceptions by providing the
courts with the flexibility necessary to address unanticipated situations and to
facilitate the basic purpose of the Rules: ascertainment of the truth and fair
adjudication of controversies”).
      In the alternative, and as noted supra, even if the inscription were
circumstantial physical evidence and not subject to the hearsay rule, the
manufacturer’s inscription would be sufficient to show the requisite nexus with
interstate commerce. Considering the evidence adduced at trial, combined
with the inscription on the video camera and the self-authenticating nature of
the evidence, a reasonable factfinder could have found Saguil produced the




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pornographic images using materials that traveled in interstate or foreign
commerce. E.g., United States v. Pierson, 139 F.3d 501, 504 (5th Cir. 1998).
      AFFIRMED.




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