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United States v. Gordon

United States District Court, D. Maine

September 11, 2019

UNITED STATES OF AMERICA
v.
DOUGLAS GORDON

          ORDER ON GOVERNMENT'S MOTION IN LIMINE TO USE A SUMMARY CHART AS ADMISSIBLE EVIDENCE DURING TRIAL

          JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

         In anticipation of trial on charges of criminal copyright infringement and mail fraud, the United States (Government) moves in limine for a pre-trial ruling on the admissibility of a summary chart during trial under Federal Rules of Evidence 104 and 1006. Gov't's Mot. in Limine to Use a Summ. Chart as Admissible Evid. During Trial (ECF No. 68) (Gov't's Mot.).

         I. BACKGROUND

         On July 30, 2019, the Government filed a motion in limine to use a summary chart as admissible evidence during trial. Gov't's Mot. On August 16, 2019, Mr. Gordon filed his response to the Government's motion in limine. Def.'s Opp'n to the Gov't's Mot. in Limine to Use a Summ. Chart as Admissible Evid. During Trial (ECF No. 74) (Def.'s Opp'n). On August 22, 2019, the Government filed its reply, along with an amended summary chart. Reply of the United States to the Def.'s Opp'n to the Gov't's Mot. in Limine to Use a Summ. Chart as Admissible Evid. During Trial (ECF No. 75) (Gov't's Reply).

         II. THE PARTIES' POSITIONS

         A. The Government's Motion in Limine

         The Government prepared a chart summarizing information obtained from over forty-six thousand emails and lines of data, as well as hard copies of the three websites in question in this case. Gov't's Mot. at 2, 11. The chart shows the number of DVD copies of movies that were ordered from each website, the number of different movies offered on each website, and the total amounts of proceeds received through operation of each website. Id. The Government asks the Court to issue a pre-trial ruling permitting the use of the summary chart “because organizing, presenting and analyzing the underlying records pertaining to approximately forty-six thousand online sales of DVD movies would otherwise be extremely time-consuming and extraordinarily difficult.” Id. at 1. The Government specifically requests the admittance of the chart into evidence because “[a]bsent such summary charts, the jury will be awash in disparate documents and spreadsheets, with little assistance in synthesizing the records or understanding the scope of the fraud or how particular records fit with other records and/or witness testimony.” Id. at 10.

         The Government argues that the summary chart meets “all of the conditions precedent to admission under Rule 1006.” Id. at 7. First, the Government asserts that “the underlying documents-the three websites, the emails obtained from Yahoo! Inc. and the spreadsheets obtained from Kunaki and Weebly-are admissible” because “[t]he summary is based on ordinary business records that satisfy the hearsay exception in Federal Rule of Evidence 803(6)” and the email orders “are also adoptive admissions under Rule 801(d).” Id. at 7-8. “Investigators and several of the Defendant's former employees will provide a foundation for admission of hard copies of the websites into evidence.” Id. at 7.

         Second, the Government asserts that “these [underlying] records are clearly too voluminous for convenient in-court review by the jury.” Id. at 9. “Any attempt to introduce approximately 23, 080 emails and approximately 23, 253 lines of data from spreadsheets would be extraordinarily time consuming and impractical, ” and “[t]he summary chart will substantially reduce the jurors' burden of analyzing the underlying online order documents at trial.” Id. (citing United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998)).

         Third, the Government states that “the chart should accurately reflect the underlying documents.” Id. The Government asserts that “the chart was prepared as a result of meticulous analysis and accurately summarizes the underlying online order documents.” Id. The Government also notes that any inaccuracies discovered in the chart can be cured with a limiting jury instruction, as was done in BD ex rel. Jean Doe v. DeBuono, 193 F.R.D. 117, 128-30 (S.D.N.Y. 2000). Gov't's Mot. at 9-10 n.8. The Government adds that the chart “is merely a compilation of DVD movies ordered by customers, ” and thus “accurately reflects the information contained therein.” Id. at 11.

         Fourth, the Government explains that “[t]he United States months ago met its obligations to make the underlying documents available” by “provid[ing] the defense with copies of the underlying records by means of FedEx delivery on March 22, 2019, ” making the summarized data “available to defense counsel six months before the scheduled trial date, ” and providing the defense with the actual summary chart on July 26, 2019. Id. at 10.

         Fifth, the Government contends that the summary chart will be properly introduced because “the summary charts will be presented by Special Agent Loren Thresher-the lead case agent-who produced the charts and will be on hand for defense counsel to question during the trial.” Id. (citing United States v. Gaitan-Acevedo, 148 F.3d 577, 587 (6th Cir.), cert. denied, 525 U.S. 998 (1998); United States v. Grajales-Montoya, 117 F.3d 356, 361 (8th Cir.), cert. denied, 522 U.S. 983 (1997)).

         B. Douglas Gordon's Opposition

         Mr. Gordon focuses his opposition on the Government's third and fifth arguments. Def.'s Opp'n at 2-3.

         He first argues that “the summary chart is neither accurate nor reliable, and contains on its face, nearly one-hundred erroneous entries and misleading entries . . ..” Id. at 1. Mr. Gordon points out a paragraph in the Government's motion in which the Government describes the purpose of the chart as “show[ing] the number of DVD copies of movies that were ordered from the three websites” and lists the underlying sources for the chart as only the online orders and email orders. Id. at 1-2 (emphasis added by Defendant) (quoting Gov't's Mot. at 2). He argues that the Government's summary chart is inaccurate, unreliable, and prejudicial because it “was supposedly created from online orders, but contains 88 movies that were not ordered; contains three titles that were not listed on any of the three websites [and were not ordered]; and contains 21 titles that were not listed on any of the three websites but which had many online orders.” Id. at 6.

         Mr. Gordon also argues that there is insufficient foundation to admit the chart at this time “because Special Agent Thresher has not yet provided foundational testimony to support its admission and to explain his research, process, findings, and how the chart itself was created.” Id. He asks the Court to deny the Government's motion or refrain from ruling on it until it has heard Special Agent Thresher's foundational testimony because “[t]he Government's Motion seeks to sidestep this [foundation] requirement by obtaining a preliminary ruling on the chart's admissibility.” Id. at 7.

         Mr. Gordon does not address the first, second, or fourth conditions precedent to admission under Rule 1006.

         C. The ...


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