Federal Evidence Review

In real estate developer’s trial for bribery of a local building permit official, admission of charts “summarizing [the defendant’s] telephone and bank records” which lacked a foundation for the underlying business records was harmless, in United States v. Oros, 578 F.3d 703 (7th Cir. Aug. 25, 2009) (No. 08-2511)

Occasionally the interplay of the federal rules of evidence “create[] much confusion at trial.” Oros, 578 F.3d at 708. The Seventh Circuit considered the confusion resulting from the interplay of FRE 1006 (summaries of voluminous evidence) and the requirements for admission of the underlying information that was actually summarized under the business records rule, FRE 803(6).

The problem occurred when the trial court accepted the testimony of an authenticating witness that the underlying records were of a type “commonly viewed as trustworthy.” The circuit noted that FRE 1006 permits the admission of a summary of underlying evidence that has not been introduced if the proponent of the summary can show that the underlying evidence would be admitted had it been proffered (here, under the business records exception in FRE 803(6)).

In the case, the defendant was charged with bribery and conspiracy to bribe after officers investigating suspected drug activity discovered that a planning department employee (Johnson) had a large amount of cash, which included $12,000 from defendant Oros and blueprints-architectural drawings for three properties. During the investigation, “Oros told the officers that he had paid Johnson the $12,000 to have his plans ‘expedited’ through the City’s rigorous approval process.” Oros, 578 F.3d at 705.

At trial, the defendant argued that the payments to Johnson “were not bribes because he thought Johnson was a legitimate ‘expediter.’” An expediter was a person allowed to “[s]hepherd[ ] one’s project through all three departments” concerning city planning which often “required a significant investment of time … so much so that some building owners were willing to pay expediters to help them navigate the process.”

The government produced evidence that the defendant was “involved in a conspiracy to obtain approval of his building projects by offering bribes to employees … and that he knew the people he paid were not expediters.” The evidence included “summary charts” of business records and telephone calls made “between Oros, Johnson, and other individuals whom Johnson claimed were involved in the bribery scheme.” Oros, 578 F.3d at 707. The jury convicted the defendant on the bribery charge, but acquitted him on the conspiracy charge. The defendant appealed, contending that “the district court erred in allowing the government to present charts to the jury summarizing telephone and bank records that were not properly admitted.” Oros, 578 F.3d at 707.

The Seventh Circuit agreed that the trial court abused its discretion in admitting the summary records. The circuit noted that at trial:

“the government informed the court that it intended to introduce summaries of voluminous bank and telephone records under Federal Rule of Evidence 1006. The parties then debated over whether the underlying records needed to be certified, or whether a custodian had to take the stand to lay the proper foundation for the records. The district court sided with the government, finding that because the government was only introducing the summary (and not the underlying records themselves), no certification or testimony from a custodian was required.”

The circuit noted in admitting summary records under FRE 1006 as “an end around to introducing evidence that would otherwise be inadmissible,” the proponent of the summary evidence was required “to demonstrate that the underlying records are accurate and would be admissible as evidence.” Oros, 578 F.3d at 708 (citing Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 382 (7th Cir. 2008) (citing United States v. Briscoe, 896 F.2d 1476, 1495 (7th Cir. 1990)). The circuit focused on the requirement that the underlying records be admissible, noting that it was this requirement “that created much confusion at trial.” Oros, 578 F.3d at 708.

The circuit concluded that the prosecutor failed to present sufficient evidence to show that the underlying records would have been admissible had they been proffered at trial:

“Inspector David Hodapp to testify as to how he obtained the records (via trial subpoena), and it believes that was sufficient to demonstrate admissibility. The government appears to argue that since it was not required to admit the records, the district court was within its discretion to determine, based on Inspector Hodapp’s testimony, that the records were of the type ‘commonly viewed as trustworthy’ that would have been admissible under the business records exception, Federal Rule of Evidence 803(6). The problem with this argument is that Inspector Hodapp’s testimony falls short of the requirements set by Rule 803(6).”

The foundation failed to “establish that the records were kept in the course of a regularly conducted business activity,” and because its witness was not the records custodian, it failed to provide the necessary certification. “Without these … the government could not have laid the foundation necessary to demonstrate the admissibility, under the business records exception, of the underlying records or the summaries of those records.” Oros, 578 F.3d at 708 (citing FRE 803(6) requirement (“if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the [record] ... all as shown by the testimony of a custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12) or a statute permitting certification....”) (emphasis as in original); United States v. Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999) (finding that the district court erred by allowing the government to admit summaries without “lay[ing] a foundation for application of the business records exception”)).

Because the trial court admitted the summaries without finding that the underlying evidence would have been admissible had it been offered, the requirements of FRE 1006 for admission of summary of evidence was not satisfied. Nonetheless, the circuit concluded the error was harmless. For example, one chart admitted under FRE 1006 “listed all of defendant’s properties” and was intended to prove that the defendant was an experienced property owner. Given that other evidence was properly admitted that the defendant had building permits for at least six of his properties this supported an inference that he was an experienced property owner and the admission of the summary chart to make the same point. The same was true regarding the summary of the defendant’s phone call records with alleged conspirators. The summary was provided as proof of the existence of the conspiracy. Because the defendant was acquitted of the conspiracy charge, he was not harmed by its admission.

It’s a basic point, but one apparently easily forgotten. FRE 1006 summaries, while providing a convenient shortcut to present evidence at trial, do not diminish the threshold evidentiary burden of the proponent. As Oros demonstrates, not only must the proponent show that the summary is necessary, but the proponent must also meet the same general foundation that it would have to establish had the proponent actually offered the underlying materials into evidence.