United States District Court, D. Maine
ORDER ON GOVERNMENT'S MOTION IN LIMINE TO USE A
SUMMARY CHART AS ADMISSIBLE EVIDENCE DURING TRIAL
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
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
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).
THE PARTIES' POSITIONS
The Government's Motion in Limine
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.
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.
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)).
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.
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.
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
Douglas Gordon's Opposition
Gordon focuses his opposition on the Government's third
and fifth arguments. Def.'s Opp'n at 2-3.
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.
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.
Gordon does not address the first, second, or fourth
conditions precedent to admission under Rule 1006.