USA v. Stewart et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Criminal Case No. 21-cr-034-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
1. MICHAEL SHAWN STEWART, and
2. BRYANT EDWIN SEWALL,
Defendants.
ORDER GRANTING GOVERNMENT’S MOTION IN LIMINE
The Government charges Defendants Michael Shawn Stewart and Bryant Edwin
Sewall (jointly, “Defendants”) with fourteen counts of wire fraud, in violation of 18 U.S.C.
§ 1343, and one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. §
371. (ECF No. 1.) Currently before the Court is the Government’s Motion in Limine that
Summary Exhibits of Self-Authenticating Business Records Are Admissible Pursuant to
Federal Rule of Evidence 1006 (“Motion”). (ECF No. 190.) Defendants filed a joint
response in opposition (ECF No. 217), and with leave of the Court (ECF No. 234), the
Government filed a reply in support (ECF No. 239).
For the reasons explained below, the Motion is granted.
I. LEGAL STANDARD
Federal Rule of Evidence 1006 provides that the proponent of summary exhibits
to prove content
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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.
For summary exhibits of voluminous records to be admissible, the underlying evidence
must be admissible, though not necessarily admitted into evidence. United States v.
Irvin, 682 F.3d 1254, 1261 (10th Cir. 2012). Further, summaries proffered under Rule
1006 must in fact rely upon, United States v. Ray, 370 F.3d 1039, 1046 (10th Cir. 2004),
and accurately reflect, Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1468–69 (10th Cir.
1994), the contents of the admissible underlying, voluminous evidence.
II. ANALYSIS
A. Propriety of the Motion
The Government seeks a pretrial ruling on the admissibility of numerous exhibits
prepared by FBI Financial Analyst Lindsay Fryer (“Fryer”) summarizing voluminous
account statements. (ECF No. 190 at 3–4.) Defendants argue this is improper because
the Government seeks to confirm certain evidence is admissible, rather than exclude
evidence. (ECF No. 217 at 1–2.) Indeed, a strict reading of the undersigned’s Revised
Practice Standards supports this view. (See id. (citing WJM Revised Practice Standard
III.G.1).) Nevertheless, as the Government points out in the Motion, (ECF No. 190 at 4),
the undersigned has on occasion “analyze[d] the issues raised . . . [in “offensive”
motions in limine] to avoid extensive evidentiary disputes at trial.” E.g., United States v.
Lowe, 571 F. Supp. 3d 1208, 1213 n.1 (D. Colo. 2021) (Martínez, J.) In the Court’s
view this is one of those rare occasions in which consideration of an “offensive” limine
motion is appropriate.
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B. Expert or Lay Testimony
Defendants urge that the Government’s proffer of the summaries is an attempt to
admit expert testimony that was not properly disclosed. The Court has previously
rejected this argument and now rejects it again. (See ECF No. 248 at 8; ECF No. 253
at 13–16.)
C. The Summary Exhibits
The Court has reviewed the proffered summaries, which the Government
attaches to the Motion, as well as the parties’ arguments in support and against their
admission. (ECF Nos. 190, 190-1, 217, 239.) There is no dispute as to the authenticity
and admissibility of the underlying records under Rules 803(6), (8), (17), and 807. (ECF
Nos. 186, 187.)
The Court concludes the underlying records are clearly voluminous. The
summaries organize and summarize thousands of pages of bank and brokerage
account records. (See ECF No. 190 at 4.) The fact that two of the summaries draw
information from a relatively small number of those voluminous records does not
change this fact. (See ECF No. 217 at 9.) Fryer still had to examine a large number of
records to prepare the summaries, a task that cannot be conveniently accomplished
during trial.1 (See ECF No. 190 at 6, 8; Fed. R. Evid. 1006 (permitting summary exhibits
1 There is an analytical gap between a case such as Daniel v. Ben E. Keith Co., 97 F.3d
1329, 1334–35 (10th Cir. 1996), where the Tenth Circuit held that “eighteen one-page
pulmonary function test results . . . [were] not voluminous” for purposes of Rule 1006 and a case
involving 2800 one-page test results of which a summary exhibit selected eighteen.
In that second, hypothetical case, whoever prepared the summary would be subject to
cross-examination on why he or she included such a small sample in the summary, how the
sample set was selected, and whether the sample set is either particularly relevant or is
representative of the complete set. Unless these or similar lines of questioning reveal some
defect that makes the exhibits an inaccurate summary of the underlying evidence or show the
summaries do not in fact rely upon the underlying records, they go to weight rather than
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of voluminous records “that cannot be conveniently examined in court”).)
The Court further concludes that the records were made available to Defendants
at a reasonable time and place. Otherwise, it would have been impossible for the
parties to reach their stipulations as to the authenticity and admissibility of these
documents. (See ECF Nos. 186, 187.) Moreover, though it is the Government’s burden
to satisfy the Court that the summary exhibits meet the requirements of Rule 1006, it is
noteworthy that Defendants do not argue the underlying records were unavailable to
them. (See generally ECF No. 227.)
The majority of Defendants’ response brief is dedicated to arguing that the
summaries do not accurately reflect the underlying records and at times improperly
assume certain information (i.e., do not rely on the underlying records). (See id. at 5–
11.) They protest that the summaries were created using “an extensive trove of some
90+ spreadsheet tabs” and rely on Microsoft Excel formulae (id. at 5); a summary
relying on monthly account records performed currency conversions using end-of-month
rates (id. at 7; ECF No. 239 at 2); and some summaries have explanatory footnotes
identifying calculations based on incomplete data (ECF No. 227 at 7). In addition, they
argue that preparing the summaries required Fryer’s specialized knowledge as a
forensic accountant or including color coding transforms the summaries into either
expert opinion testimony or improper argument. (Id. at 2–3, 5–7, 10.)
admissibility.
Defendants’ specific objections to Exhibit 3 and Exhibit 16 relate instead to whether
seven selected pages of bank account statements are voluminous and whether a summary that
did not require math to produce will help the jury. These arguments go to the weight to be
appropriately attributed to this evidence.
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None of these arguments for exclusion are persuasive, though of course, they
may convince the jury to give the summaries considerably, or somewhat, less weight
than other evidence, or to discount them entirely. But that of course is for the jury to
decide. The Court rules that the Government’s proffered summary exhibits are
admissible at trial, subject to it laying an adequate foundation for them in conformity with
Rule 1006.
III. CONCLUSION
For the reasons set forth above, the Court ORDERS that the Government’s
Motion in Limine that Summary Exhibits of Self-Authenticating Business Records Are
Admissible Pursuant to Federal Rule of Evidence 1006 (ECF No. 190) is GRANTED.
Dated this 25th day of April, 2024.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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