## Facts

- Lazaro Alexander Hernandez, a convicted felon, attended a family gathering where Shane Crofts was present.
- After the gathering, Crofts discovered a garage-door opener missing from his vehicle; his home was later found burglarized, and firearms and other items were stolen.
- Hernandez asked Kirk and Tracy Allen to hold a gun for him; later, he retrieved it.
- Renee Hernandez sought the gun’s serial number from Tracy Allen. Tracy asked Jacqueline Grant to write down the serial number from the gun; Grant created the original note.
- Later, Grant read the serial number from her note to Tracy, who wrote it down; Tracy then dictated the number to Renee, who also wrote it down.
- Hernandez later gave the gun and other property to Renee, who returned them to Crofts; Crofts contacted law enforcement.
- At trial, Tracy Allen, Jacqueline Grant, and Renee Hernandez testified they could not recall the serial number but asserted their earlier writing/recitation was accurate when made.
- The government introduced only Tracy Allen’s handwritten note (created from Grant’s oral reading of Grant’s note) over a hearsay objection.
- The serial number evidence was used to link the gun Hernandez possessed to Crofts’s stolen firearm and to establish the firearm’s interstate-commerce connection under 18 U.S.C. § 922(g)(1).

## Issues

1. Whether Tracy Allen’s handwritten serial-number note was admissible over a hearsay objection under Federal Rule of Evidence 803(5) (recorded recollection) despite being derived from another person’s observation and writing.
2. Whether the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Hernandez knowingly possessed a firearm and that the firearm traveled in or affected interstate commerce, as required by 18 U.S.C. § 922(g)(1).

## Decision

- The Tenth Circuit affirmed the conviction and sentence.
- The court held the district court erred by admitting Tracy Allen’s serial-number note under the hearsay rules, including Rule 803(5).
- The court concluded the evidentiary error was harmless because other properly admitted evidence supported the same contested elements.
- The court held the overall evidence was sufficient to support the § 922(g)(1) conviction.

## Legal Principles

- Rule 803(5) permits a recorded recollection only when the record reflects the testifying witness’s own prior knowledge, made or adopted when fresh, and accurately reflecting that knowledge; it does not readily cover a record created from another person’s observation through layered hearsay.
- When an exhibit contains multiple levels of out-of-court assertions, each level must be independently admissible or within an exception; otherwise the exhibit is inadmissible hearsay.
- Non-constitutional evidentiary error warrants reversal only if it had a substantial influence on the verdict or leaves grave doubt about the verdict’s validity; otherwise it is harmless.
- Sufficiency review asks whether, viewing the evidence in the light most favorable to the government, any rational juror could find each element of the offense beyond a reasonable doubt.
- For 18 U.S.C. § 922(g)(1), the government must prove felony status, knowing possession, and an interstate-commerce nexus for the firearm.

## Conclusion

The court affirmed Hernandez’s felon-in-possession conviction, holding that admitting a serial-number note derived from another person’s observation was hearsay error but harmless, and that the remaining evidence permitted a rational jury to find knowing possession and the required interstate-commerce connection beyond a reasonable doubt.


United States v. Hernandez, 333 F.3d 1168 (10th Cir. 2003)