## Facts

- Charles Frederick Gerhart ended a subcontracting relationship on an apartment construction project and received a final settlement totaling $45,079.86, paid by two checks: one for $40,247.46 payable jointly to Gerhart and the IRS, and one for $4,822.40 payable to Gerhart.
- Gerhart later applied to First National Bank of Colfax, Iowa for a $56,011.10 loan and listed as an asset an account receivable of $50,000 from the apartment project.
- To support the application, Gerhart presented photocopies of the two settlement checks and an altered settlement agreement.
- The photocopy of the $4,822.40 check was altered or obscured to appear as $54,822.40, and Gerhart annotated the other check’s photocopy to state that the “other check” was for $54,822.40.
- Gerhart falsely told the bank the settlement total was $95,079.86 and that the $54,822.40 check had been mistakenly sent to the IRS.
- A bank officer contacted the IRS, learned it had not received such a check, and turned over Gerhart’s photocopies to a state special agent after making an additional set of photocopies for the bank’s records.
- The original photocopies provided by Gerhart were later lost while in state custody; at trial, the government offered the bank’s second-generation photocopy of the altered check.
- The bank officer and the state agent testified that the second-generation photocopy accurately reproduced the original photocopies they had viewed.
- Gerhart was convicted by a jury of knowingly making a materially false statement to influence a member bank of the Federal Reserve System, in violation of 18 U.S.C. § 1014, and was sentenced to one year in prison.

## Issues

1. Whether the district court violated the best-evidence rule by admitting a second-generation photocopy of a check when the original and first photocopy were unavailable.

## Decision

- The court of appeals affirmed the conviction.
- It held the district court did not err in admitting the second-generation photocopy.
- The exhibit was admissible as secondary evidence when the original was lost without bad faith, and it was also admissible as a duplicate where no genuine authenticity dispute or unfairness was shown.

## Legal Principles

- Under Federal Rule of Evidence 1004, when an original is lost or destroyed without bad faith by the proponent, other evidence of the contents of a writing is admissible; disputes about reliability generally go to weight, not admissibility.
- Federal Rules of Evidence 1001(4) and 1003 allow admission of a duplicate to the same extent as an original unless a genuine question is raised about authenticity or admission would be unfair.
- A sufficient foundation for admitting a copy may be established through witness testimony that the offered copy accurately reproduces the prior version examined.
- Appellate review of evidentiary rulings is deferential; reversal requires a showing that the trial court abused its discretion.

## Conclusion

The Eighth Circuit upheld the admission of a photocopy of a photocopy of an altered check because the original was lost without prosecutorial bad faith and witnesses established that the offered exhibit accurately reproduced the earlier copy, leaving remaining reliability disputes for the jury’s evaluation.


United States v. Gerhart, 538 F.2d 807 (8th Cir. 1976)