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United States v. Harris

United States District Court, D. Hawaii

April 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SHEILA HARRIS, Defendant.

          ORDER NUMBER ONE ON PRETRIAL MOTIONS

         Defendant 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.

         Defendant 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).

         1. Government IS PERMITTED to Seek Admission of Summary Charts

         Federal Rule of Evidence 1006 provides that summary charts are admissible in lieu of voluminous writings, recordings, or photographs.

         The Government's Motion in Limine To Admit Summary Charts (ECF No. 56) seeks to introduce into evidence a number of summary charts.

         Federal 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.

         The 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) .

         Rule 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).

         To be 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) .

         The 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, complicated information.

         The 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 underlying information.

         Defendant 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 not admissible.

         The 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."

         2. Government IS PERMITTED to Present Testimony By Case Agent Laura Salazar As A Summary Witness

         The Government may present its case agent, Federal Bureau of Investigation ("FBI") Special Agent Laura Salazar, as a summary witness.

         The 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)).

         Case 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 ...


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