United States District Court, D. Hawaii
ORDER NUMBER ONE ON PRETRIAL MOTIONS
Sheila Harris is charged in the First Superseding Indictment
with eleven counts of wire fraud, two counts of aggravated
identity theft, and four counts of making a false statement
with regards to health care.
is charged with devising a scheme and artifice to defraud and
obtain money from Tricare, a health care program of the
United States Department of Defense Military Health System.
The Government contends that the "full scope of the
scheme involved approximately 5, 259 falsified speech therapy
sessions included 2, 328 false claims submitted to Tricare,
and over 90 minor beneficiaries." (Gov't Motion in
Limine To Admit Summary Charts at p. 4, ECF No. 56).
Government IS PERMITTED to Seek Admission of Summary
Rule of Evidence 1006 provides that summary charts are
admissible in lieu of voluminous writings, recordings, or
Government's Motion in Limine To Admit Summary Charts
(ECF No. 56) seeks to introduce into evidence a number of
Rule of Evidence 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.
Fed. R. Evid. 1006.
underlying materials that provide the content for the
summaries or charts need not be separately admitted into
evidence. United States v. Meyers, 847 F.2d 1408,
1411-12 (9th Cir. 1988); United States v.
Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006). A chart
summarizing voluminous or complex information can itself be
evidence under Rule 1006, as long as a party seeking to
introduce the chart has laid a foundation for the underlying
materials. United States v. Hemphill, 514 F.3d 1350,
1358-59 (D.C. Cir. 2008) .
1006 provides that the summary itself constitutes substantive
evidence. United States v. White, 737 F.3d 1121,
1134-35 (7th Cir. 2013); United States v. Bray, 139
F.3d 1104, 1109-10 (6th Cir. 1998). Rule 1006 summaries are
distinguishable from summaries or charts that are used as
"pedagogical devices" which organize or aid the
jury's examination of testimony or documents that
themselves were admitted into evidence. United
States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991).
admissible as substantive evidence under Rule 1006, the chart
must summarize the underlying materials "accurately,
correctly, and in a nonmisleading manner."
Bray, 139 F.3d at 1110, 1112; United States v.
Janati, 374 F.3d 263, 273 (4th Cir. 2004) .
case before the Court involves voluminous materials regarding
complicated health care billing and coding. The Government
contends that the scheme involved thousands of falsified
claims. Summary charts evidence will assist the jury and
provide a practicable means of summarizing voluminous,
Government has not yet demonstrated the admissibility of the
underlying evidence that it intends to present in its summary
charts. The Court is unable to determine the admissibility of
the charts until the Court rules on the admissibility of the
has been afforded the opportunity to review all of the
underlying materials and must object to any of the evidence
that was used to create the charts if the Defense believes it
is inadmissible. A summary chart will not be admitted into
evidence if the underlying evidence is not admitted or deemed
Government is permitted to introduce summary charts as
substantive evidence as long as it lays a proper foundation
and either admits or demonstrates the admissibility
of the underlying materials provided in the summary charts.
The Government must also demonstrate that the charts
summarize the admissible evidence "accurately,
correctly, and in a non-misleading manner."
Government IS PERMITTED to Present Testimony By Case Agent
Laura Salazar As A Summary Witness
Government may present its case agent, Federal Bureau
of Investigation ("FBI")
Special Agent Laura Salazar, as a summary
Ninth Circuit Court of Appeals permits the use of summary
witnesses in order to "help the jury organize and
evaluate evidence which is factually complex and fragmentally
revealed in the testimony of the multitude of
witnesses." United States v. Shirley, 884 F.2d
1130, 1133 (9th Cir. 1989) (quoting United States v.
Lemire, 720 F.2d 1327, 1348 (D.C. Cir. 1983)).
agents from the Federal Bureau of Investigation, Drug
Enforcement Administration, or Internal Revenue Service are
regularly permitted to testify as summary witnesses to
summarize voluminous records and witness testimony.
United States v. Marchini, 797 F.2d 759, 765-66 (9th
Cir. 1986) (finding district court did not err in admitting
the summary testimony of Internal Revenue Service agent);
Goldberg v. United States, 789 F.2d 1341, 1343 (9th
Cir. 1986); United States v. Meyers, 847 F.2d 1408,
1412 (9th Cir. 1988) (approving use of FBI special agents to
testify as summary ...