United States v. Irvin, 682 F.3d 1254 (10th Cir. 2012):

1. Admission of Exhibit 1-2

The testimony of cooperating defendant Sparks formed much of the government's case against Miller and Irvin. Over the course of four days, Sparks described the various forgeries, misrepresentations, and other fraudulent activities he allegedly engaged in with Vanatta to obtain financing for unqualified buyers. In all, Sparks related the particulars of twenty-two separate transactions involving Miller-built homes. During this testimony, continual reference was made to government Exhibit 1-2, a chart displayed before the jury that purported to summarize the relevant details of these transactions. This chart was entitled "Summary of Fraud for JEFF MILLER et al., Fraud That Can Be Identified By James Sparks." It included information identifying the date, location, and buyer for each transaction, as well as a column labeled "False Statements to Lenders," which listed the various specific fraudulent representations and actions described by Sparks.

Exhibit 1-2 was initially offered by the government under Fed. R. Evid. 1006 as a summary of several boxes of "loan files" pertaining to the allegedly fraudulent home sales. The defendants vigorously resisted the admission of the summary chart, filing a motion in limine and repeatedly objecting during trial. The district court ultimately agreed with the government and admitted Exhibit 1-2 under Rule 1006. Arguing the requirements of Rule 1006 were not satisfied and the loan files upon which Exhibit 1-2 was based constituted inadmissible hearsay, Miller and Irvin contend the district court's decision is reversible error. We review a district court's decision to admit summary charts under Rule 1006 for abuse of discretion. United States v. Thompson, 518 F.3d 832, 858 (10th Cir. 2008).

Rule 1006 provides, in relevant part: "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place." Fed. R. Evid. 1006. Although the materials upon which a Rule 1006 summary is based need not themselves be admitted into evidence, they must at least be admissible. United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999).

Miller and Irvin argue the loan files purportedly summarized in Exhibit 1-2 constituted hearsay that was not shown to qualify for any exception to the prohibition on hearsay evidence. When this same challenge was raised before the district court, the government attempted to show the loan files were admissible under the business records exception established by Fed. R. Evid. 803(6). Pursuant to Rule 803(6), business records are admissible despite their hearsay nature if the records' custodian, or another qualified witness, testifies the records (1) were prepared in the normal course of business; (2) were made at or near the time of the events recorded; (3) were based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) are not otherwise untrustworthy. United States v. Ary, 518 F.3d 775, 786 (10th Cir. 2008). The government offered Sparks as the witness qualified to make these foundational showings. Sparks, however, testified the loan files were largely maintained by various title companies for whom he had not worked and under circumstances of which he had no personal knowledge. Furthermore, Sparks could not state whether the loan files were made or kept by the title companies in the regular course of their businesses. He also indicated that various documents within the loan files had been removed, destroyed, or otherwise modified. His testimony, therefore, was insufficient to establish the admissibility of the loan files as business records.

Before ruling on the admissibility of Exhibit 1-2, the district court acknowledged the documents summarized by a Rule 1006 chart must themselves be admissible. Nevertheless, it reasoned that, while Sparks's testimony had not established admissibility of the loan files under Rule 803(6), neither had the defendants demonstrated the loan files would not satisfy the business records exception if the government presented testimony from the appropriate records custodians. Because it had "heard nothing that contradicts the idea that [the loan files] are business records and would meet the business records exception," the district court overruled the hearsay objection and received Exhibit 1-2. It reaffirmed this ruling several times throughout the trial. The district court abused its discretion by admitting Exhibit 1-2.

The materials summarized by Rule 1006 evidence must themselves be admissible because a contrary rule "would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay." Samaniego, 187 F.3d at 1224. Accordingly, just as the proponent of hearsay evidence bears the burden of establishing the applicability of a hearsay exception, Ary, 518 F.3d at 786, so too must the proponent of a Rule 1006 summary based on hearsay evidence establish that the materials summarized are admissible. Samaniego, 187 F.3d at 1224. Contrary to the district court's ruling, Miller and Irvin were under no obligation to affirmatively disprove the applicability of the business records exception. The burden was on the government alone. By not requiring the government to lay the foundation necessary under Rule 803(6), the district court erred as a matter of law. Id.

The government seeks to avoid this conclusion by explaining that, contrary to its representations before the district court, Exhibit 1-2 summarized not only the aforementioned loan files, but also the trial testimony of Sparks and other government witnesses.⁶ Therefore, the government reasons, Exhibit 1-2 constituted a "hybrid" summary chart, admissible under Fed. R. Evid. 611(a). The government's logic eludes the court, for the loan files remain inadmissible hearsay.

6   Rule 1006 permits the use of exhibits summarizing only "[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court." Fed. R. Evid. 1006. To the extent the government's revisionist assertions indicate Exhibit 1-2 summarized witness testimony, therefore, they further emphasize that the chart's admission under Rule 1006 was in error.

Rule 611(a) provides that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Fed. R. Evid. 611(a). This directive has in some circuits been read as authorizing the use of summary exhibits for pedagogical purposes, wholly apart from Rule 1006.  See, e.g., United States v. Milkiewicz, 470 F.3d 390, 397 (1st Cir. 2006); United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir. 1998); United States v. Johnson, 54 F.3d 1150, 1157-59 (4th Cir. 1995). Nothing in Rule 611(a) or the cases interpreting it, however, indicates that such pedagogical exhibits can be used to summarize otherwise inadmissible hearsay evidence, such as the loan files. Indeed, the cases discussing Rule 611(a) summaries typically require the summarized evidence to be affirmatively admitted into evidence. See Milkiewicz, 470 F.3d at 397 ("A summary chart used as a pedagogical device must be linked to evidence previously admitted . . . ."); Bray, 139 F.3d at 1111 (same). Such a requirement is consistent with the spirit of Rule 611(a), which, in discussing the presentation of evidence, presupposes the suitability of such evidence for presentation, as well as our existing Rule 611(a) jurisprudence. See United States v. Stiger, 413 F.3d 1185, 1198 (10th Cir. 2005) ("[A] party may only admit summary testimony under Fed. R. Evid. 611(a) if the District Court previously admitted at trial the evidence that forms the basis of the summary."). In short, resort to Rule 611(a) in no way resolves the hearsay problem that renders Exhibit 1-2 inadmissible.