In bribery prosecution, summary charts and testimony were admissible under FRE 1006 because the underlying bank records tracing fund transfers between defendants were not only voluminous and inconvenient to use if not summarized, but the summary evidence would not simply "allow the Government to repeat its entire case-in-chief shortly before jury deliberations," in United States v. Whitfield, 590 F.3d 325 (5th Cir. Dec. 11, 2009) (No. 07-60748)
Summary evidence is often indispensable at trial. In providing for the admission of summary evidence, FRE 1006 attempts to minimize or reduce the burden of physically producing voluminous materials and of organizing these materials. In a recent Fifth Circuit case, the court found no abuse of discretion in the judge's application of the requirements of the rule that the underlying record be voluminous and that its use in other than summary form be inconvenient to the fact finder. The circuit seemed to suggest that one matter the trial judge should employ in assessing these factors is whether allowing summary evidence allows its proponent to repeat its entire case before the jury begins deliberations.
In the case, defendants Minor, an attorney, and Whitfield, a state judge, were charged with arranging and conspiring in a loan pay off scheme. It involved payments made by defendant Minor to defendant Whitfield, that “corruptly influence[d] the outcome of cases” filed by Minor in Whitfield’s court. At trial, the government introduced evidence of numerous financial transactions between the defendants and banks involving illegal transfers of funds and attempts to conceal the purposes of the transfers. In addition, evidence was adduced of a variety of corrupt actions, such as that “shortly after Minor arranged the loans for Whitfield … Minor's law firm filed a potentially lucrative personal injury suit, Marks v. Diamond Offshore Management” in the State of Mississippi’s Second Circuit court, of which Whitfield was a judge.
In the Marks case:
“Marks was injured while working on an off-shore oil rig, and he hired Minor & Associates on a contingent-fee basis to represent him in the ensuing Jones Act suit against his employer. Although plaintiffs seeking personal injury damages generally prefer to try their cases before a jury, Minor's firm made the unusual request for a bench trial. Normally, the [Mississippi] Second Circuit Court followed a procedure whereby cases were randomly assigned among the four Second Circuit judges after the defendant had filed an answer. However, immediately upon filing their complaint, Minor's firm circumvented this process by filing a motion with Judge Whitfield seeking an expedited hearing to set a trial date, purportedly so that Marks could obtain funds to cover his medical expenses as soon as possible. On February 10, 1999, twelve days before [Jones Act defendant] Diamond Offshore had even received a summons (and thus had yet to file an answer triggering the random assignment procedure), Whitfield issued a “Fiat” requiring the parties to appear before him in a hearing on the motion to set a trial date. At the hearing Whitfield set the case for trial in his own court, thereby effectively assigning the case to himself.”Whitfield, 590 F.3d at 337.
Eighteen months later, “the case was tried before Whitfield” and the judge “ruled in favor of Marks and awarded him $3.75 million in damages.” In its review of the Marks case, the Mississippi Supreme Court “affirmed the finding of liability” because “the trial court had ample material in the record to justify a high award of damages,” although it reduced compensatory damages to $1 million (leaving a total award of $1.64 million). The scheme soon began to fall apart and federal investigators were eventually able to indict the defendants based on various corrupt transactions, such as the
As the Fifth Circuit noted, one ground that defendant Whitfield pursued on appeal involved his allegation that the federal trial court improperly admitted “charts summarizing the financial transactions at issue in the case and by allowing Kim Mitchell, a summary witness for the Government, to explain those charts to the jury.” Whitfield, 590 F.3d at 364.
The circuit concluded no error was involved in the admission of this evidence under FRE 1006. The rule provided, in part that “contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” FRE 1006. In the Fifth Circuit the test for admission of evidence under FRE 1006 involved a two-part showing that:
- "Evidence previously admitted is voluminous, and
- Review by the jury would be inconvenient”
The circuit also noted several qualifications of these two standards. It noted that:
- The “summary may include only evidence favoring one party, so long as the witness does not represent to the jury that he is summarizing all the evidence in the case.
- The summary evidence “must have an adequate foundation in evidence that is already admitted,” and
- The summary evidence “should be accompanied by a cautionary jury instruction” because “[f]ull cross-examination and admonitions to the jury minimize the risk of prejudice.”
Using this test, the circuit concluded:
“[T]he testimony of Mitchell and the admission of summary charts was neither cumulative nor prejudicial. The information presented to the jury synthesized bank records and checks that were properly admitted, in order to explain the voluminous records supporting the transfer of money from Minor to Whitfield…. Appellants were permitted to cross-examine Mitchell fully. Whitfield does not contend that the charts were incorrect or misleading…. In addition, the district court properly instructed the jury as to the limited purposes of the summary charts, minimizing any risk of prejudice.”Whitfield, 590 F.3d at 365 (citing United States v. Fullwood, 342 F.3d 409, 413-14 (5th Cir.2003)).
One important caution to all this was raised by the Fifth Circuit. That caution was the need of the trial court to affirmatively ensure that under FRE 1006, summary evidence was not admitted that “simply … allow[s] the Government to repeat its entire case-in-chief shortly before jury deliberations.” Whitfield, 590 F.3d at 364. This concern should involve a certain “reluctance” to admit summary evidence that does not fully satisfy the need for a summary. In Whitfield, for example, the Circuit review of the record rendered it fully satisfied that “the exhibits and testimony were not a summary of the Government's case; instead, they summarized complex records and documents for the benefit of the jury.” Whitfield, 590 F.3d at 365. As a result, its admission was not erroneous.
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