Commercial Litigation and Arbitration

Summary Evidence — When Is the Underlying Evidence Sufficiently Indigestible to Warrant a Summary Exhibit?

United States v. Appolon, 695 F.3d 44 (1st Cir. 2012):

1. The Summary Charts

Daniel and Haltiwanger argue that the district court erred by admitting into evidence four charts summarizing the reams of financial data in this case. As with other evidentiary rulings,  [**27] our review is for abuse of discretion. See United States v. McElroy, 587 F.3d 73, 80 (1st Cir. 2009); United States v. Stierhoff, 549 F.3d 19, 27 (1st Cir. 2008).

The government's final witness was Thomas Zappala, an auditor employed by the United States Attorney's Office. Through Zappala, the government introduced four charts that he created outlining the mechanics of appellants' scheme. The first chart depicted, for each of the twenty-one properties involved in the scheme, the buyer and seller, the difference between the actual sale price and the falsely-inflated price represented on the mortgage loan applications, and the proceeds laundered through Lindley's IOLTA. The second chart listed, for each property, the profits accruing to each conspirator. The third aligned the wire fraud counts in the indictment with the corresponding wire transfers and property sales. The fourth chart did the same for the money laundering counts.

The government argued that Zappala's charts were admissible under Federal Rules of Evidence 611 and 1006. Over objections from Daniel and Haltiwanger, the district court admitted the charts into evidence "under the rules and law relating to summaries" and made  [**28] them available to the jury. The court also denied requests for Daniel and Haltiwanger for contemporaneous limiting instructions, although it did provide a limiting instruction before jury deliberations, admonishing the jury that summaries should be scrutinized closely.

As we have explained, various summary tools may be used "to clarify complex testimony and evidence" for a jury. McElroy, 587 F.3d at 81; see also United States v. Milkiewicz, 470 F.3d 390, 396-98 (1st Cir. 2006); Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 67 (1st Cir. 2002). Of particular relevance, Federal Rule of Evidence 1006 provides that a party may summarize the contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court, so long as the summary is accurate, the underlying documents are made available to the other parties, and both the summary and the source materials are admissible. See Fed. R. Evid. 1006; see also Milkiewicz, 470 F.3d at 396-98. A Rule 1006 summary may be offered into evidence and made available to the jury. See 31 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 8044 (2000).

No precise test dictates when source materials are sufficiently indigestible to permit summarization under Rule 1006. Instead, district courts are advised to carefully weigh the volume and complexity of the materials. These two factors have an inversely proportionate relationship: as either the volume or complexity increases, relatively less is required of the other factor. See id. The ultimate question, of course, is whether summarization will remove logistic or cognitive barriers to the jury's discharge of its duties, see United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991); United States v. Johnson, 594 F.2d 1253, 1255 (9th Cir. 1979), and we are poorly positioned to second guess a district court's on-the-spot answer to this question, see Fraser, 284 F.3d at 67 ("It is hard to imagine an issue on which a trial judge enjoys more discretion than as to whether summary exhibits will be helpful.").

The summary evidence in this case obviated the need for the government to introduce, and the jury to sift through, mortgage and sale records for each of the twenty-one properties involved in appellants' scheme, and also facilitated tracing the scheme's proceeds through Lindley's IOLTA. As such, it comported with the purpose of Rule 1006.  See Bakker, 925 F.2d at 736 ("The purpose of Rule 1006 is to provide a practicable means of summarizing  [*62]  voluminous information.").

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