Federal Evidence Review

In a health care fraud prosecution, Fifth Circuit affirms the admission of an “organizational” summary chart as an illustrative aid to show the defendants’ participation in the conspiracy, in United States v. Ogba, 526 F.3d 214 (5th Cir. 2008)

A Fifth Circuit case explored the use of summary charts as illustrative aids. In the health care fraud case, three defendants were prosecuted for providing false Medicare claims concerning wheelchair patients. The defendants used recruiters to identify wheelchair recipients who were used to submit claims. At trial, a case agent used an “organizational” summary chart as a pedagogical device which showed the participation of the defendants in the conspiracy. The chart indicated “the dates of the doctors’ involvement in the scheme, … billing history, and total amounts of money transferred between the co-defendants and the doctor.” The chart “had dotted lines indicating agreements and money transfers between [defendant] Antoon and other co-defendants in the case.”

The agent used the chart during his testimony:

“This line indicates money going directly from Chuck Ogba to Doctor Antoon, as well as a handshake agreement . . . You have got the dotted line represented from Iffy Ogba and Doctor Antoon, and that represents basically the fact . . . the agreement that Doctor Antoon had was an agreement with Apex Medical Services . . . . You have got Rhonda Smith down here. . . . Rhonda Smith and Doctor Antoon had an agreement. . . . And then you have got the money line where Rhonda Smith paid money to Doctor Antoon.

Ogba, 526 F.3d at 225.

The trial court gave a cautionary instruction to the jury:

“Certain charts and summaries have been shown to you solely to help explain the facts disclosed by the books, records, and other documents which are evidence in this case. These charts and summaries are not evidence or proof of any facts. You should determine the facts from the evidence.”

Ogba, 526 F.3d at 225. The jury convicted the three defendants. On appeal, one challenged the use of the summary chart.

The Fifth Circuit affirmed the admission of the summary chart. As the circuit explained:

“‘[A]llowing the use of charts as “pedagogical” devices intended to present the government’s version of the case’ is within the bounds of the trial court’s discretion to control the presentation of evidence under Rule 611(a). Such demonstrative aids typically are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence.”

Ogba, 526 F.3d at 225 (quoting United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000)).

The summary chart could be admitted since it accurately reflected the records and evidence in the case. Ogba, 526 F.3d at 225 (citing United States v. Taylor, 210 F.3d 311, 315 (5th Cir. 2000) (“A necessary precondition to the admission of summary charts is that they accurately reflect the underlying records or testimony, particularly when they are based, in part, on the government’s factual assumptions.”) (footnote omitted)). Evidence supported the conspiracy included a recorded conversation. The circuit noted that the jury was given a limiting instruction on the role of the chart as a summary and the defense was allowed to challenge the accuracy of the chart during cross-examination.

The Ogba case demonstrates the use of summary charts under FRE 611(a). As a general matter, charts or summaries may be admitted as evidence under FRE 1006. FRE 611(a) is often used to introduce demonstrative summary evidence offered as “pedagogical devices” or illustrative aids and are normally not admitted as evidence. The Fifth Circuit has aptly summarized the distinction:

“The admission of organizational charts and summary evidence is governed by Federal Rules of Evidence 611(a) and 1006. We previously have stated that allowing the use of charts as ‘“pedagogical” devices intended to present the government’s version of the case’ is within the bounds of the trial court’s discretion to control the presentation of evidence under Rule 611(a). Such demonstrative aids typically are permissible to assist the jury in evaluating the evidence, provided the jury is forewarned that the charts are not independent evidence. Additionally, such charts are not admitted into evidence and should not go to the jury room absent consent of the parties. In contrast, Rule 1006 applies to summary charts based on evidence previously admitted but which is so voluminous that in-court review by the jury would be inconvenient.”

United States v. Taylor, 210 F.3d 311, 315 & n.14 (5th Cir. 2000) (admission of drug conspiracy organizational chart was not harmless where the chart did not accurately reflect the evidence) (citations and footnotes omitted).