Federal Evidence Review

In health care fraud and conspiracy case, error in excluding three signed requests for power wheelchair replacements offered by the defendant under as FRE 613 as prior inconsistent statements by three witnesses who testified that they had never ordered the wheelchairs that the defendant provided under a government health equipment replacement program; evidence that the documents had been signed by the witness was sufficient to authenticate them under FRE 901(a) and any questions as to whether the signatures were true and knowing went to the weight of the evidence, not the admissibility; the error was harmless based on other evidence, in United States v. Isiwele, __ F.3d __ (5th Cir. March 7, 2011) (No. 10-40347)

Often the opportunity to take advantage of one evidence rule depends on whether that evidence can satisfy other rules of evidence as well. In a recent case, the Fifth Circuit explored the relation between the proffer of prior inconsistent statements under FRE 613 for impeachment purposes and the requirement of documentation authentication under FRE 901(a). While use of the documents for impeachment purposes posed little problem, the trial court erred in applying the authentication requirements of FRE 901 to exclude the proffered impeachment evidence because, ironically, it was inconsistent with the witness's testimony.

In the case, defendant Isiwele was charged with health care fraud and conspiracy in filing false claim reimbursement forms in a Medicare/Medicaid program for patients who has lost a wheelchair in the Hurricane Katrina tragedy. The government charged that the defendant fraudently submitted reimbursement forms, charging the government the cost of power wheelchairs that the patients did not order and who had not lost a wheelchair in the hurricane. Upon his conviction, the defendant appealed, contending that the trial judge improperly excluded evidence he proffered to impeach three of the witnesses against him.

The Fifth Circuit agreed with the defendant that exclusion of the impeachment evidence was erroneous. The defendant's cross-examination of three witnesses contrasted their current testimony with replacement request forms previously signed by the witnesses. The defendant was never able to impeach the witnesses with the forms ordering a wheelchair that the witnesses had apparently signed Each witness could identify his or her own signature on the documents, yet they also testified:

in direct contravention of [he forms] contents that they had not previously owned power wheelchairs that were lost in Hurricane Rita. [Government witness] Bass testified that he signed a paper that Isiwele gave him to sign, without looking at it. When shown the statement at trial, Bass said that he did not know what the document was, that he did not know 'how [his signature] got there,' and surmised that '[i]t could have been under something else and I signed and you got my name under there. [Government witness] DeGutis testified that the signature on the document bearing her name looked like her signature, but said the contents of the documents were not true. [Government witness] Brady identified his signature, but stated at trial that he 'didn't read the documents' and disagreed with the contents. The district court refused to admit these documents into evidence on the ground that they had not been properly authenticated because the witnesses did not absolutely adopt the substance of the documents.

Isiwele, _ F.3d at _ (footnote eliminated).

The trial court erred, noted the circuit, in finding the impeachment documents not admissible because of insufficient authentication. The trial judge's error was to “require conclusive proof of authenticity before allowing the admission of disputed evidence.” According to the circuit, FRE 901(a) “merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be.” (citing United States v. Watkins, 591 F.3d 780, 787 (5th Cir. 2009) (“It is well established that after a witness denies making a statement during cross examination, evidence may be introduced to prove the statement was made.” (citations omitted)).

A document signed by the witness could be used for impeachment. The circuit noted that “[p]roof that a document has been signed is sufficient to charge a signatory with its contents.” In holding that the document was sufficiently identified as authentic by identification of its signature page, the circuit noted that it had written before that:

A decision that a document is authentic and, therefore, admissible does not determine whether the evidence will be credited by the trier of fact. The opponent may then question whether the challenged document is the same or different from the one originally signed. As Weinstein's Evidence states, “Once the evidence is admitted the question becomes one of credibility and probative force and the trier may ultimately disbelieve the proponent's proof and entirely disregard or substantially discount the persuasive impact of the evidence admitted.

Isiwele, __ F.3d at __ (quoting United States v. Whittington, 783 F.2d 1210, 1215 (5th Cir. 1986) (“[p]roof that a document has been signed is sufficient to charge a signatory with its contents.”)

The circuit also rejected the government's argument that "witnesses' signatures [were] insufficient to establish the authenticity of the documents, given the other circumstances relevant to their authenticity." Even if, as appeared from the trial record, the witnesses were "elderly and/or mentally infirm ... these factors did not make a difference at the authentication stage," concluded the Circuit. Essentially this meant that the district court should have admitted the documents and allowed the government to present these arguments to the jury to show that the testimony of [witnesses] Bass, DeGutis, and Brady at trial should be believed rather than the impeaching statements they allegedly signed. Isiwele, __ F.3d at __ (noting Whittington, 783 F.2d at 1215 (“The defendants had ample opportunity to challenge the identity of the remainder of the document, to show how it came to be signed (as they did, at length, and to urge that, although signed, it was not intended to have legal effect.”)).

Having found that the impeachment evidence should not have been excluded, the circuit still found the defendant entitled to no relief because the error was harmless based on other evidence.