USA v. GORDON

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
) 	1:19-cr-00007-JAW
v. 	)
)
DOUGLAS GORDON 	)
ORDER ON GOVERNMENT’S MOTION IN LIMINE TO USE A SUMMARY
CHART AS ADMISSIBLE EVIDENCE DURING TRIAL
In anticipation of trial on charges of criminal copyright infringement and mail
fraud, the United States (Government) moves in limine for a pre-trial ruling on the
admissibility of a summary chart during trial under Federal Rules of Evidence 104
and 1006. Gov’t’s Mot. in Limine to Use a Summ. Chart as Admissible Evid. During
Trial (ECF No. 68) (Gov’t’s Mot.).
I. 	BACKGROUND
On July 30, 2019, the Government filed a motion in limine to use a summary
chart as admissible evidence during trial. 	Gov’t’s Mot. 	On August 16, 2019, Mr.
Gordon filed his response to the Government’s motion in limine. Def.’s Opp’n to the
Gov’t’s Mot. in Limine to Use a Summ. Chart as Admissible Evid. During Trial (ECF
No. 74) (Def.’s Opp’n). On August 22, 2019, the Government filed its reply, along with
an amended summary chart. 	Reply of the United States to the Def.’s Opp’n to the
Gov’t’s Mot. in Limine to Use a Summ. Chart as Admissible Evid. During Trial (ECF
No. 75) (Gov’t’s Reply).
II. 	THE PARTIES’ POSITIONS
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A. 	The Government’s Motion in Limine
The Government prepared a chart summarizing information obtained from
over forty-six thousand emails and lines of data, as well as hard copies of the three
websites in question in this case. Gov’t’s Mot. at 2, 11. The chart shows the number
of DVD copies of movies that were ordered from each website, the number of different
movies offered on each website, and the total amounts of proceeds received through
operation of each website. 	Id. 	The Government asks the Court to issue a pre-trial
ruling permitting the use of the summary chart “because organizing, presenting and
analyzing the underlying records pertaining to approximately forty-six thousand
online sales of DVD movies would otherwise be extremely time-consuming and
extraordinarily difficult.” 	Id. at 1. 	The Government specifically requests the
admittance of the chart into evidence because “[a]bsent such summary charts, the
jury will be awash in disparate documents and spreadsheets, with little assistance in
synthesizing the records or understanding the scope of the fraud or how particular
records fit with other records and/or witness testimony.” Id. at 10.
The Government argues that the summary chart meets “all of the conditions
precedent to admission under Rule 1006.” 	Id. at 7. 	First, the Government asserts
that “the underlying documents—the three websites, the emails obtained from
Yahoo! Inc. and the spreadsheets obtained from Kunaki and Weebly—are admissible”
because “[t]he summary is based on ordinary business records that satisfy the
hearsay exception in Federal Rule of Evidence 803(6)” and the email orders “are also
adoptive admissions under Rule 801(d).” Id. at 7-8. “Investigators and several of the
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Defendant’s former employees will provide a foundation for admission of hard copies
of the websites into evidence.” Id. at 7.
Second, the Government asserts that “these [underlying] records are clearly
too voluminous for convenient in-court review by the jury.” Id. at 9. “Any attempt to
introduce approximately 23,080 emails and approximately 23,253 lines of data from
spreadsheets would be extraordinarily time consuming and impractical,” and “[t]he
summary 	chart 	will 	substantially 	reduce 	the 	jurors’ 	burden 	of 	analyzing 	the
underlying online order documents at trial.” 	Id. (citing United States v. Bray, 139
F.3d 1104, 1110 (6th Cir. 1998)).
Third, the Government states that “the chart should accurately reflect the
underlying documents.” 	Id. 	The Government asserts that “the chart was prepared
as a result of meticulous analysis and accurately summarizes the underlying online
order documents.” Id. The Government also notes that any inaccuracies discovered
in the chart can be cured with a limiting jury instruction, as was done in BD ex rel.
Jean Doe v. DeBuono, 193 F.R.D. 117, 128-30 (S.D.N.Y. 2000). 	Gov’t’s Mot. at 9-10
n.8. 	The Government adds that the chart “is merely a compilation of DVD movies
ordered by customers,” and thus “accurately reflects the information contained
therein.” Id. at 11.
Fourth, the Government explains that “[t]he United States months ago met its
obligations to make the underlying documents available” by “provid[ing] the defense
with copies of the underlying records by means of FedEx delivery on March 22, 2019,”
making the summarized data “available to defense counsel six months before the
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scheduled trial date,” and providing the defense with the actual summary chart on
July 26, 2019. Id. at 10.
Fifth, the Government contends that the summary chart will be properly
introduced because “the summary charts will be presented by Special Agent Loren
Thresher—the lead case agent—who produced the charts and will be on hand for
defense counsel to question during the trial.” 	Id. (citing United States v. Gaitan-
Acevedo, 148 F.3d 577, 587 (6th Cir.), cert. denied, 525 U.S. 998 (1998); United States
v. Grajales-Montoya, 117 F.3d 356, 361 (8th Cir.), cert. denied, 522 U.S. 983 (1997)).
B. 	Douglas Gordon’s Opposition
Mr. 	Gordon 	focuses 	his 	opposition 	on 	the 	Government’s 	third and fifth
arguments. Def.’s Opp’n at 2-3.
He first argues that “the summary chart is neither accurate nor reliable, and
contains on its face, nearly one-hundred erroneous entries and misleading entries . .
..” Id. at 1. Mr. Gordon points out a paragraph in the Government’s motion in which
the Government describes the purpose of the chart as “show[ing] the number of DVD
copies of movies that were ordered from the three websites” and lists the underlying
sources for the chart as only the online orders and email orders. Id. at 1-2 (emphasis
added by Defendant) (quoting Gov’t’s Mot. at 2). 	He argues that the Government’s
summary chart is inaccurate, unreliable, and prejudicial because it “was supposedly
created from online orders, but contains 88 movies that were not ordered; contains
three titles that were not listed on any of the three websites [and were not ordered];
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and contains 21 titles that were not listed on any of the three websites but which had
many online orders.” Id. at 6.
Mr. Gordon also argues that there is insufficient foundation to admit the chart
at this time “because Special Agent Thresher has not yet provided foundational
testimony to support its admission and to explain his research, process, findings, and
how the chart itself was created.” 	Id. 	He asks the Court to deny the Government’s
motion or refrain from ruling on it until it has heard Special Agent Thresher’s
foundational testimony because “[t]he Government’s Motion seeks to sidestep this
[foundation] 	requirement 	by 	obtaining 	a 	preliminary 	ruling 	on 	the 	chart’s
admissibility.” Id. at 7.
Mr. Gordon does not address the first, second, or fourth conditions precedent
to admission under Rule 1006.
C. 	The Government’s Reply
The Government reiterates its position that the summary chart should be
admitted under Rule 1006:
In the absence of a summary chart, jurors would be required to examine
hundreds 	of 	pages 	of 	website 	advertisements 	as 	well 	as 	an
incomprehensible 	number 	of 	email 	confirmations 	and 	pages 	of
spreadsheets without any means of seeing the total numbers of movies
offered for sale, identifying which movies were offered for sale on more
than one website or determining the number of orders received for each
movie.
Gov’t’s Reply at 2.
In response to Mr. Gordon’s claim that the summary chart is neither accurate
nor reliable, the Government made “several minor changes to the chart.” 	Id. at 3.
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First, the date in Column F of the chart was edited from January 30, 2017, to January
27, 2017, to reflect the actual date the Lostmoviesfound (LMF) website was copied.
Id. 	Second, one movie—Eyes of Fire—was moved to the final page of the summary
chart because it was not advertised on one of the websites but was ordered several
times. 	Id. 	Third, the Government deleted four movie titles from the list, including
the three identified by Mr. Gordon, because they were not listed on the three websites
and were not ordered. Id.
The Government argues that all other movies are an accurate summary of the
underlying documents and should remain on the list. Id. Specifically addressing the
movies listed on at least one website but never ordered, the Government asserts that
“[t]he Defendant’s advertisement of such large numbers of movies as available for
purchase on his websites provided customers with a false sense of the legitimacy of
the ‘On-Line’ operation” because they “understandably reasoned the likelihood that
a vendor would make false representations and material omissions regarding such
large numbers of DVD movies was less likely.” Id. at 3-4. The Government adds that
giving jurors the ability to “comprehend the scope of the Defendant’s alleged copyright
infringement and mail fraud” will make them “more likely to return correct verdicts”
but “does not amount to unfair prejudice.” Id. at 4 n.5.
Finally, the Government clarifies that it is asking the Court “to decide the
preliminary question about whether the summary chart will be admissible pursuant
to Federal Rule of Evidence 104(a) and (b),” not to sidestep the preliminary ruling.
Gov’t’s Reply at 5. “[T]he Government understands the Court’s ruling will be subject
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to fulfillment of a condition of fact.” Id. Here, the condition is “that a foundation for
the chart will later be introduced at trial.” Id.
III. 	THE LEGAL STANDARD
The Government “request[s] a preliminary determination, as authorized by
Federal Rule of Evidence 104, that the attached summary chart will be admissible
evidence during trial” and that “[t]he attached summary chart prepared by the
Government’s case agent satisfies the requirements of Rule 1006.” Gov’t’s Mot. at 1
(citing F ED. R. EVID. 104, 1006).
A. 	Federal Rule of Evidence 104
Rule 104(a) states, “[t]he court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible. 	In so
deciding, the court is not bound by evidence rules, except those on privilege.” F ED. R.
EVID. 104(a). 	Under Rule 104(a), the Court acts as a gatekeeper, United States v.
Poulin, 	592 	F. 	Supp. 	2d 	132, 	136 	(D. 	Me. 	2008), 	as 	it 	determines 	“whether
foundational facts have been established (and, thus, whether particular pieces of
evidence are eligible for admission).” 	Blake v. Pellegrino, 329 F.3d 43, 48 (1st Cir.
2003). 	Foundational 	facts 	are 	those 	facts 	which 	dictate 	whether 	evidence 	is
admissible, which includes “the genuineness of a document or statement, the maker's
personal knowledge, and the like.” 	Id. 	The proponent must establish these
foundational facts by a preponderance. United States v. Campbell, 268 F.3d 1, 4 (1st
Cir. 2001) (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)).
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Rule 104(b) states, “[w]hen the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a finding that the fact does exist.
The court may admit the proposed evidence on the condition that the proof be
introduced later.” 	F ED. R. EVID. 104(b). 	Unlike in Rule 104(a), “[i]n determining
whether the Government has introduced sufficient evidence to meet Rule 104(b), the
trial court neither weighs credibility nor makes a finding that the Government has
proved the conditional fact by a preponderance of the evidence.” Huddleston v. United
States, 485 U.S. 681, 690 (1988). 	Rather, “[t]he court simply examines all the
evidence in the case and decides whether the jury could reasonably find the
conditional fact . . . by a preponderance of the evidence.” Id.
“Authentication is . . . treated as a matter of ‘conditional relevancy’ governed
by Rule 104(b). 	The question of authenticity is ultimately one for the jury, and the
court must determine only whether the jury could reasonably find the proffered
evidence authentic.” 	United States v. Rosado-Cancel, Crim. No. 13-0731, 2015 WL
1968508 (DRD), at *6 (D.P.R. May 1, 2015).
B. 	Federal Rule of Evidence 1006
Rule 1006, entitled “Summaries to Prove Content,” states:
The proponent 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.
F ED. R. EVID. 1006. 	Rule 1006 “creates an exception to Rule 1002, which requires
that originals be used to prove the contents of writings, recordings and photographs.”
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United States v. Milkiewicz, 470 F.3d 390, 396 (1st Cir. 2006). Summary charts used
in accordance with Rule 1006 may be fully admitted into evidence. United States v.
McElroy, 587 F.3d 73, 81-82 (1st Cir. 2009); Milkiewicz, 470 F.3d at 397-98.
The rule addresses situations in which a summary is the “only practicable
means of making [the] content available to judge and jury,” R & R Assocs. V. Visual
Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984) (quoting F ED. R. E VID. 1006 advisory
committee’s note on proposed rules), as well as situations in which an in-court
examination of the underlying records would be inconvenient. 	Colón-Fontánez v.
Mun. of San Juan, 660 F.3d 17, 29-30 (1st Cir. 2011) (stating that “summary charts
and graphs . . . consist[ing] of a condensed presentation” of an “extensive record” were
“an appropriate presentation of ‘voluminous writings’ that ‘cannot conveniently be
examined in court’” (quoting F ED. R. EVID. 1006)); United States v. Possick, 849 F.2d
332, 330 (8th Cir. 1988) (“Rule 1006 does not require that it be literally impossible to
examine all the underlying records, but only that in-court examination would be an
inconvenience”).
To satisfy Rule 1006, the proponent of the summary must show that (1) the
underlying source materials are “otherwise admissible,” (2) the source materials are
voluminous, (3) the source materials are “what the proponent claims them to be” and
“the summary accurately summarizes” them, and (4) the source materials were made
available to the other parties for inspection and copying at a reasonable time and
place. See Milkiewicz, 470 F.3d at 396 and n.12. The proponent must also (5) lay a
proper foundation for the admission of the summary chart. Colón-Fontánez, 660 F.3d
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at 31. 	“In the context of a summary exhibit, the proponent of the exhibit ‘should
present the testimony of the witness who supervised its preparation.’” 	Id. (quoting
United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998)).
An accurate summary “fairly represent[s] the underlying documents” and is
“nonprejudicial.” 	Milkiewicz, 470 F.3d at 398 (quoting Bray, 139 F.3d at 1111). 	It
must 	“summarize[] 	the 	information 	contained 	in 	the 	underlying 	documents
accurately, correctly, and in a nonmisleading manner” with nothing “lost in the
translation.” Bray, 139 F.3d at 1110. Summaries admitted “in lieu of the underlying
documents” must not be “embellished by or annotated with the conclusions of or
inferences 	drawn 	by 	the 	proponent, 	whether 	in 	the 	form 	of 	labels, 	captions,
highlighting techniques, or otherwise.” 	Id. 	The goal is to prevent “a summary
containing elements of argumentation” from functioning as “a mini-summation by
the chart’s proponent every time the jurors look at it during their deliberations.” Id.
Summary 	charts 	admitted 	into 	evidence 	under 	Rule 	1006 	differ 	from
pedagogical devices used during trial under Rule 611(a)1 to aid counsel’s argument to
the jury. Gov’t’s Mot. at 3 n.2; see United States v. Milkiewicz, 470 F.3d 390, 395-400
(1st Cir. 2006). The key difference between the types of summary charts “appears to
be the purpose for which the summaries are offered.” 	Milkiewicz, 740 F.3d at 398.
Rule 1006 charts “are explicitly intended to reflect the contents of the documents they
summarize.” Id. Rule 611(a) summaries, on the other hand, “tend to be ‘more akin
1 	Rule 611(a) states, “[t]he court should exercise reasonable control over the mode and order of
examining witnesses and presenting evidence so as to: (1) make those procedures effective for
determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue
embarrassment.” FED. R. E VID. 611(a).
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to argument than evidence.’” 	Milkiewicz, 740 F.3d at 398 (citing 6 MARK S. BRODIN
ET AL ., WEINSTEIN’S F EDERAL EVIDENCE § 1006.08[4] (2d ed. 2019)) (noting also that
pedagogical aids allowed under Rule 611(a) to illustrate or clarify a party’s position
may reflect “the inferences and conclusions drawn from the underlying evidence by
the summary’s proponent” “through captions or other organizational devices or
descriptions”). 	The accuracy requirements for Rule 1006 described in Bray address
this distinction between reflection and argumentation. See 139 F.3d at 1110.
The category a summary chart fits into matters for how the proponent can use
the chart during trial. 	Milkiewicz, 740 F.3d at 395 (“[T]he basis for admission can
affect how a summary is used, including whether a jury may rely on it as primary
evidence and whether it is allowed in the jury room during deliberations”). Generally,
a Rule 1006 summary chart is secondary evidence used as a substitute for the
originals2 and thus can be used during jury deliberation, while a Rule 611(a)
summary chart “is not itself . . . evidence” and cannot replace the underlying
documents during jury deliberation because of its argumentative nature. Id. at 397
and n.14.3
C. 	Federal Rule of Evidence 403
2 	Materials “underlying the Rule 1006 summaries need not be admitted into evidence.” 	Air
Safety, Inc. v. Roman Catholic Archbishop of Bos., 94 F.3d 1, 7 n.14 (1st Cir. 1996) (citing United States
v. Bakker, 925 F.2d 728, 736-37 (4th Cir. 1991)). However, underlying documents being admitted into
evidence does not preclude the use of Rule 1006 because “[t]he fact that the underlying documents are
already in evidence does not mean that they can be conveniently examined in court.” Milkiewicz, 740
F.3d at 397 (alternation in original) (quoting United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir.
1985)).
3 	There are some exceptions to the general distinction between admissible and inadmissible
charts. See Milkiewicz, 740 F.3d at 398. However, they do not apply to the facts of this case.
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Rule 403 states, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” F ED. R. EVID. 403.
IV. 	DISCUSSION
The Court concludes that it is likely that the Government’s summary chart will
be admissible under Rule 1006. The chart attempts to improve a situation that would
be inconvenient and impractical for the jury: “examining hundreds of pages of website
advertisements as well as an incomprehensible number of email confirmations and
pages of spreadsheets” without any means of seeing total amounts of sales, profits, or
videos advertised or ordered. 	Gov’t’s Reply at 2. 	Moreover, the chart in its current
format satisfies the conditions of Rule 1006, as detailed below.
However, since the Court has not seen the version of the chart the Government
plans to use during trial, the Court cannot know whether the chart will be too
prejudicial, will mislead the jury, or will contain “elements of argumentation” that
make the chart otherwise inadmissible. 	See United States v. Bray, 139 F.3d 1104,
1110 (6th Cir. 1998). Thus, pursuant to Rules 403 and 1006, the Court cannot make
a final ruling on the admissibility of the chart until trial.
Mr. Gordon objects to the chart’s adherence to two of the conditions precedent
to admission under Rule 1006. 	The Court concludes that the summary chart in its
current format meets both conditions.
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A. 	The 	Summary 	Chart 	Accurately 	Summarizes 	the 	Source
Materials 	Pending 	Review 	of 	the 	Final 	Version 	Presented
During Trial
The parties’ disagreement as to whether the summary chart accurately
summarizes the source materials stems from whether the Government intends to
include the hard copies of the three websites as underlying source materials. 	The
intent is unclear from the Government’s initial motion. 	See, e.g., Gov’t’s Mot. at 1
(discussing the difficulty of “organizing, presenting and analyzing the underlying
records pertaining to approximately forty-six thousand online sales of DVD movies”
without mentioning the website pages); Gov’t’s Mot. at 9 (“[T]he chart was prepared
as a result of meticulous analysis and accurately summarizes the underlying online
order documents”); Gov’t’s Mot. at 11 (stating that the chart is “merely a compilation
of DVD movies ordered by customers”); but see Gov’t’s Mot. at 7 (listing “the three
websites” in the underlying documents and discussing the foundation of admission
for the hard copies of the websites). However, the Government’s reply clarifies that
it means to include the hard copies of the three websites in the underlying documents.
See Gov’t’s Reply at 3-5.
Considering the Government’s reply, the content included in the summary
chart is accurate and reliable. First, the eighty-eight movies contained on the chart
but not ordered are seemingly accurate portrayals of the information from the website
pages. Mr. Gordon does not argue that these movies were not listed on the website.
Second, the Government has deleted from the chart the three titles he states were
neither ordered nor listed on any of the three websites. Lastly, the twenty-one titles
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not listed on the websites that were the subject of online orders are accurate even
without the inclusion of the website pages.
The open question is whether the Government’s use of the summary chart
during trial will “contain[] elements of argumentation.” 	United States v. Bray, 139
F.3d 1104, 1110 (6th Cir. 1998). If so—such as through highlighting, size formatting,
or added captions—the chart might act as a “mini-summation by the [Government]
every time the jurors look at it during their deliberations.” 	Id. 	The Court is
encouraged by the Government’s assurance that the chart is “merely a compilation of
DVD movies ordered by customers” (though it also contains the movies listed on the
websites) and the Government’s acknowledgement of the distinction between Rule
1006 summary charts and Rule 611(a) summary charts. 	Gov’t’s Mot. at 3 n.2, 11.
However, until the Court has seen the version of the chart used during trial, it cannot
reach a final determination.
B. 	The Promised Testimony of Special Agent Thresher Satisfies the
Requirement that the Summary Chart Be Properly Introduced
on 	the 	Condition 	that 	the 	Foundation 	for 	the 	Chart 	Be
Introduced at Trial
Rule 104(b) applies to pre-trial determinations of authentication evidence. See
F ED. R. EVID. 104(b); United States v. Rosado-Cancel, Crim. No. 13-0731, 2015 WL
1968508, at *6 (D.P.R. May 1, 2015) (applying Rule 104(b) to authentication evidence
and requiring only that “the jury could reasonably find the proffered evidence
authentic”). 	Though Special Agent Thresher has not yet provided foundational
testimony, the Government attests that he will do so. 	Proper foundation for a
summary consists of “testimony of the witness who supervised its preparation.”
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United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998). Special Agent Thresher
produced the charts himself, Gov’t’s Mot. at 10, so a reasonable jury could find that
his testimony provides a proper foundation for the summary chart.
In filing this motion in limine, the Government is not “sidestep[ping]” laying a
proper 	foundation 	because 	Special 	Agent 	Thresher 	will 	still 	need 	to 	provide
foundational testimony during trial, and the admittance of the chart will depend on
the jury’s analysis of that testimony.
V. 	CONCLUSION
The Court DEFERS FINAL RULING on the Government’s Motion in Limine
to Use a Summary Chart as Admissible Evidence During Trial (ECF No. 68) until
trial.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 11th day of September, 2019
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