United States District Court, D. Maine
ORDER ON GOVERNMENT'S SUPPLEMENTAL MOTION IN
LIMINE FOR DETERMINATION THAT EXHIBITS 17, 17A, AND 17B
QUALIFY AS ADMISSIBLE RECORDS UNDER RULE 803(6)
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 certain trial exhibits under Federal Rule of Evidence
803(6). The Court concludes that one of the proffered
exhibits is authentic and admissible, but it defers judgment
on two other exhibits because the record does not reflect who
made the exhibits.
3, 2019, the Government filed a motion in limine to determine
whether certain exhibits qualify as admissible records under
Rule 803 of the Federal Rules of Evidence.
Gov't's Mot. in Limine for Determination
that Exs. Qualify as Admissible Rs. Under Rule 803 (ECF
No. 59) (Gov't's Mot.); Gov't's
Mot., Attachs., Exs. 1-10; Additional Attachs.,
Attachs., Exs. 11-18 (ECF No. 60); Additional
Attachs., Attachs., Exs. 19-28 (ECF No. 61). On June 28,
2019, Douglas Gordon filed his response to the
Government's motion in limine. Def.'s Resp. to
Gov't's Mot. in Limine that Exs. Qualify as
Admissible Rs. Under Rule 803 (ECF No. 62)
(Def.'s Opp'n). On July 12, 2019,
the Government filed its reply. Reply of United States to
Def.'s Resp. to Gov't's Mot. in Limine
for Determination that Exs. Qualify as Admissible
Rs. (ECF No. 65) (Gov't's Reply).
Court ruled on the Government's motion on September 11,
2019. Order on Gov't's Mot. in Limine for
Determination that Exs. Qualify as Admissible Rs. Under Rule
803 (ECF No. 86) (Order). In the order, the
Court reserved judgment on Exhibits Seventeen-A and
Seventeen-B due to Federal Rule of Evidence 803(6)(E)
trustworthiness concerns. Id. at 32. During the
final pretrial conference on September 23, 2019, the
Government noted that it had inadvertently failed to supply
the Court with Exhibit Seventeen in its original motion in
limine. See Final Pretrial Order at 3 (ECF No. 115).
The Government filed Exhibit Seventeen, along with a
supplemental motion in limine, on September 27, 2019.
Gov't's Suppl. Mot. in Limine for
Determination that Exs. 17, 17A and 17B Qualify as Admissible
Rs. Under Rule 803(6) (ECF No. 114) (Gov't's
Suppl. Mot.); Gov't's Suppl. Mot.,
Attach., Ex. 17. Mr. Gordon filed a response to the
supplemental motion on September 30, 2019. Def.'s
Resp. to Gov't's Suppl. Mot. in Limine for
Determination that Ex. 17, 17A, and 17B Qualify as Admissible
Rs. Under Rule 803(6) (ECF No. 120) (Def.'s
Government argues that “Exhibit Numbers 17, 17A and 17B
are authentic and are, subject to determinations of
relevance, admissible evidence at trial within the meaning of
the Federal Rule of Evidence 803(6) hearsay rule
exception.” Gov't's Suppl. Mot. at 1.
The Government explains that Exhibit Seventeen is “a
disk produced by Stripe, Inc. on March 10, 2017 which
includes subscriber information and payment information in
the form of Excel spreadsheets.” Id.
“Stripe, Inc. is a software and credit card
processing company used by the Defendant to receive payments
over the Internet for purchases of DVD movies.”
Id. The Government further explains that
“Exhibits 17A and 17B are parts of the payment
information spreadsheet which show DVD orders from July, 2016
to December, 2016 for the movies Babes in Toyland
and The Night They Saved Christmas in support of
Count 2.” Id. It is the Government's
position that by providing the disk containing “the
entire spreadsheets certified as authentic by the Stripe,
Inc. custodian” that was missing from the original
motion in limine, “it has satisfied the requirements of
establishing that Exhibit Numbers 17A and 17B were made by
Stripe, Inc. in the course of its regularly conduced business
activity.” Id. at 2. Thus, according to the
Government, “the certificate of authenticity [obtained
from Stripe, Inc.] previously submitted to the Court meets
the Rule 803(6) requirements” and Exhibits Seventeen,
Seventeen-A, and Seventeen-B should be admissible.
Id. at 2-3.
Gordon “requests the Court refrain from ruling on the
[supplemental motion in limine] until sufficient foundation
is provided by the Government.” Def.'s
Resp. at 1. He argues that “[i]t remains unclear .
. . whether Exhibit 17A and 17B were made by Stripe or if
they were compiled by the Government based upon the records
received from Stripe.” Id. at 2. Due to this
uncertainty, Mr. Gordon asserts, “the Court should hear
further foundational testimony before admitt[ing] these
records into evidence to the extent these were provided by
Stripe.” Id. If the Government “compiled
[the spreadsheets] based on what Square has provided to
the Government, ” Mr. Gordon argues, “the
Government should be forced to offer Exhibit 17A and 17B as
summary charts.” Id.
Court concludes that Exhibit Seventeen is authentic and
admissible under Federal Rule of Evidence 803(6), subject to
a determination of relevance. The Court is now satisfied that
the spreadsheets in Exhibits Seventeen-A and Seventeen-B are
parts of the payment information contained in Exhibit
Seventeen. However, it remains unclear whether Stripe, Inc.
or the Government compiled the spreadsheets in Exhibits
Seventeen-A and Seventeen-B. The exhibits are spreadsheets
containing rows of data selected because of their alleged
link to two movies-Babes in Toyland and The
Night They Saved Christmas-rather than entire pages of
the original payment spreadsheet. There is no
evidence that Stripe, Inc. created the exhibits, and even if
it did, there is no evidence that it did so in the course of
its regularly conducted business.
Court determines that it is possible, without further
information about the creation of the spreadsheets in
Exhibits Seventeen-A and Seventeen-B, that the Government
will need to submit the exhibits as summary charts.
See Fed. R. Evid. 1006. In fact, Mr. Gordon suggests
that Exhibits Seventeen-A and Seventeen-B might be admissible
under Rule 1006. Def.'s Resp. at 2 (“[A]s
Exhibit 17A and 17B appear to be summary exhibits and they
summarize what's contained in Exhibit 17, the Government
should be forced to offer Exhibit 17A and 17B as summary
charts”). However, the Government has not proffered
these exhibits as summary charts under the rule.
Court reserves final judgment on the authenticity and
admissibility of Exhibits Seventeen-A and Seventeen-B.
Court GRANTS the Government's Supplemental Motion in
Limine for Determination that Exhibits 17, 17A and 17B
Qualify as Admissible Records Under Rule 803(6) (ECF No. 114)
as to Exhibit Seventeen and DEFERS ...