United States v. Hoffman, 2015 U.S. Dist. LEXIS 42818 (E.D. La. April 1, 2015):

Before the Court are two motions: (1) the United States' motion in limine for pretrial determination of admissibility [*2]  of emails; and (2) the United States' motion to admit summary witness testimony and summary exhibits. For the reasons that follow, the motions are GRANTED.

Background

In this financial fraud case, Peter and Susan Hoffman and Michael Arata face wire/mail fraud and conspiracy charges, and Michael Arata faces false statements charges. These federal criminal charges arise out of the defendants' alleged scheme to defraud the State through their participation in the State of Louisiana's infrastructure tax credit program.

The parties have engaged in substantial motion practice as this case approaches its April 13, 2015 trial date. The government now seeks a pretrial determination as to the admissibility of (a) emails between the defendants and others in this case without the necessity of calling a custodian of records to authenticate each and every separate email at trial; and (b) summary witness testimony and summary exhibits.

I.

Rule 104 of the Federal Rules of Evidence obliges the Court to "decide any preliminary question about whether ... evidence is admissible." Fed. R. Evid. 104(a). In making this preliminary [*3]  determination, "the court is not bound by evidence rules, except those on privilege." Id.² Such pretrial determination advances the elimination-of-unjustifiable-expense-and-delay purpose of the Federal Rules of Evidence. See Fed. R. Evid. 102 ("These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.").

2 Subsection (b) of Rule 104 provides:

(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

A.

The government requests that the Court rule prior to trial that emails to, from, and between the defendants (1) meet the requirements of Rule 901 for authentication without the need to call a records custodian at trial; and (2) are admissible as substantive evidence. Neither Michael Arata nor Susan Hoffman oppose the government's motion. Indeed, apparently all counsel agreed to stipulate to the authenticity of these email records. And although [*4]  Peter Hoffman submits that he does not expect the government to offer evidence authenticating the technical source of the emails, and that he will stipulate to the authenticity of emails sent to him or received by him, he nevertheless advances a limited objection insofar as he "cannot ... stipulate to the authenticity of any emails authored, sent and/or received between third parties not involving Mr. Hoffman, and objects to the introduction of any such email without the laying of proper foundation." His objection is without merit.

In seeking a preliminary determination of admissibility of emails authored, sent, and received by the defendants, the government submits that it received these emails in response to grand jury subpoenas issued to several entities, including the auditors, the State, the creditors and vendors for 807 Esplanade, and the various entities related to Seven Arts. Because the described emails meet the authentication requirements of the Federal Rules of Evidence, and insofar as they will be offered in evidence as non-hearsay statements, the emails are admissible unless otherwise objectionable.

Rule 901 governs authenticating or identifying evidence:

(a) In General. To satisfy [*5]  the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only -- not a complete list -- of evidence that satisfies the requirement:...

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances....

There is sufficient evidence to support a finding by the jury that the emails authored, sent, and received by the defendants are what the government claims that they are. These emails contain distinctive characteristics: the names of the defendants and other employees of the various entities, computer server addresses associating the emails with the defendants and affiliated companies, and the dates on which the emails were sent and received. That these emails are authentic due to these distinctive characteristics is beyond dispute. Moreover, insofar as the government will offer such emails in evidence as statements of a party opponent (Rule 801(d)(2)(A)); adoptive admissions (Rule 801(d)(2)(B)); or coconspirator statements [*6]  (Rule 801(d)(2)(E)), it likewise appears beyond dispute that the emails will be admissible as substantive (non-hearsay) evidence.³ See United States v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006).

3 Of course, by this observation the Court does not now preempt any supported objections that defense counsel may offer at trial.

B.

The government also requests that the Court preliminarily rule on the admissibility of certain summary exhibits and supporting summary testimony pursuant to Federal Rule of Evidence 1006. The government anticipates calling FBI Financial Analyst Melanie Haggerty to summarize voluminous evidence of repeated transfers of large amounts of money in and out of multiple bank accounts related to corporate entities controlled by the accused defendants; through her testimony, the government anticipates introducing flow charts and financial summaries, which will be provided to the defendants prior to trial.⁴ The government also anticipates calling FBI Special Agent Robert Blythe to testify regarding his investigation and to connect the financial transactions and other trial evidence to the infrastructure expenditures submitted to the State by the defendants. The government submits that the voluminous documentary evidence and the complex nature of the related financial transactions [*7]  support its request to admit summary exhibits and testimony to assist the jury. The Court agrees.

4 The corresponding bank records evidently were made available to the defense in early 2014.

Rule 1006 provides:

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 1006, which is to be construed broadly, "requires only that the underlying records be voluminous and that in-court examination be inconvenient." United States v. Duncan, 919 F.2d 981, 988 (5th Cir. 1991)(citation omitted); United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001). The case literature instructs that summary charts are generally admissible when these four requirements are met:

(1) they are based on competent evidence already before the jury,
(2) the primary evidence used to construct the charts is available to the other side for comparison so that the correctness of the summary may be tested,
(3) the charter preparer is available for cross-examination, and
(4) the jury is properly instructed concerning use of the charts. [*8] 

Bishop, 264 F.3d at 547. Meeting these requirements minimizes any risk of prejudice. Id.

The summary evidence requirements appear to be met here sufficient to make a preliminary ruling that the summary evidence contemplated by the government (and provided to the defense) is authorized by Rule 1006 and Fifth Circuit case literature. That the underlying records are voluminous and in-court examination is inconvenient is beyond dispute. Furthermore, the defendants have in their possession the evidence used to construct the charts and they are entitled to cross-examine the summary witnesses.⁵ Nevertheless, although he "does not object in principle under Rule 1006 to the use of summary exhibits at trial in this case (with appropriate limiting instructions)[,]" Peter Hoffman opposes the government's request to admit "each of the twelve specific summaries proffered by the government."⁶ Mr. Hoffman submits seven objections on various grounds.

5 Because the government seeks to introduce its summaries not as mere demonstrative aids, but as evidence under Rule 1006, the applicable Fifth Circuit Pattern Jury Instruction is 1.44:

Certain charts and summaries have been received into evidence. You should give them only such weight as you think they deserve. [*9] 

The Note corresponding to 1.44 acknowledges that, if the proponent of summary evidence seeks its admission as evidence, "an instruction may not be necessary." Of course, defense counsel should propose any limiting instructions that might be supported by the evidence at trial.

6 Neither Susan Hoffman nor Michael Arata object to the government's proposed presentation of summary evidence