USA v. Craigue

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-142-LM
Opinion No. 2021 DNH 094 P
Nathan Craigue
O R D E R
Defendant Nathan Craigue is charged in a superseding indictment with one
count of making a false statement to a federal agent in violation of 18 U.S.C.
§ 1001(a)(2). Presently before the court are two of Craigue’s motions in limine. See
doc. nos. 107, 109. The court resolves these motions as outlined below.
BACKGROUND1
As of August 28, 2018, Craigue was the owner and operator of Craigue &
Sons Home Exteriors. In the summer of 2018, the company was hired to perform
work on a property located in Concord, New Hampshire. Craigue tasked two
individuals, Kenneth McKenna and Nicholas Ford, with the project. On August 28,
2018, McKenna had an accident at the jobsite. He later died from his injuries. The
day of the accident, an officer from the Occupational Safety and Health
Administration (“OSHA”) visited the jobsite and spoke with Craigue. Craigue
1 To the extent the following facts are not alleged in the superseding
indictment, see doc. no. 79, they are drawn from the court’s prior order denying
Craigue’s motion to dismiss the original indictment on multiplicity grounds, see doc.
no. 27. These facts are not dispositive of the instant motions and are recited only to
provide context.
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allegedly told the officer that McKenna and Ford were subcontractors and were not
employees of Craigue or his business.
The superseding indictment alleges that, on or about August 28, 2018,
Craigue knowingly and willfully made a materially false, fictitious, and fraudulent
statement and representation in a matter within the jurisdiction of United States
government by stating to the OSHA officer that McKenna and Ford were
subcontractors and not employees.
DISCUSSION
I. Doc. no. 107
Craigue moves in limine to admit McKenna’s W-2 from “Kroger” for the year
2008 pursuant to the residual hearsay exception. See Fed. R. Ev. 807. The
government does not object to admission of this evidence. Because the government
does not object, the court grants doc. no. 107.
II. Doc. no. 109
Craigue has previously moved pursuant to Federal Rules of Evidence 401,
402, 403, and 404(b) to exclude evidence that McKenna suffered injuries in 2005
and 2017 while working for Craigue. See doc. nos. 65, 91. In considering these
challenges, the court has previously ruled that evidence of the fact that McKenna
sustained an injury while working for Craigue in 2005 and again in 2017 is
admissible, as is evidence that McKenna obtained a workers’ compensation
payment in connection with the 2005 injury but not the 2017 injury. See doc. nos.
70, 106. Craigue renews his relevance and Rule 403 challenges to evidence of
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McKenna’s prior injuries and attendant workers’ compensation payments. See doc.
no. 109. However, the court sees no grounds for revisiting its relevance
determinations or its Rule 403 balancing as to this evidence.
In addition to renewing his challenges that this evidence is irrelevant and
that any relevance is substantially outweighed by the danger of unfair prejudice,
Craigue argues—for the first time—that the evidence is hearsay. The court
considers Craigue’s hearsay challenges as to the 2005 and 2017 evidence separately
below.
A. The 2005 Injury and Subsequent Workers’ Compensation Payment
The government previously provided Craigue with notice that it “intends to
introduce evidence . . . showing that, in 2005, Mr. McKenna filed a claim for
workers’ compensation for an injury he sustained in the course of his work for
Craigue & Sons,” and that “Craigue & Sons paid Mr. McKenna’s claim.” Doc. no. 61
at 5; see also Fed. R. Ev. 404(b)(3). At a motion hearing on January 20, 2021, the
government proffered that “there is a state record of the worker’s comp payments so
. . . there is a labor record that documents that that [2005] payment occurred.” Doc.
no. 74 at 71. The government has now provided this record to the court, along with
the rest of its proposed exhibits. The record is marked, for identification purposes
only, as “Government Exhibit 103.”
Craigue argues that this record is hearsay. See Fed. R. Ev. 801(c). The
government responds that the record is not hearsay because Craigue filled it out
himself; therefore, the government says, it is a statement of a party-opponent. See
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Fed. R. Ev. 801(d)(2). In the alternative, the government contends that it will be
able to lay a sufficient foundation for the record’s admission under the business
record exception to the rule against hearsay. See Fed. R. Ev. 803(6).
The court does not have sufficient information at this time to determine
whether the record is admissible as a statement of a party-opponent, as a business
record, or under some other exception to the hearsay bar. Accordingly, the court
defers ruling on the admissibility of this record until trial. However, it must be
noted that, to the extent the government has independent evidence of the fact that
McKenna suffered an injury in 2005 while working for Craigue, evidence of that
injury is only relevant to explain why McKenna would have obtained a workers’
compensation award. If the court does not admit evidence that McKenna obtained a
workers’ compensation award in connection with his 2005 injury, the court will not
admit evidence of the fact that McKenna suffered an injury in 2005. The
government may wish to take up the admissibility of Government Exhibit 103 with
the court before it elicits other evidence that McKenna suffered an injury in 2005.
B. The 2017 Injury and Subsequent Lack of a Workers’ Compensation
Payment
The government previously notified Craigue of its intent to introduce
evidence and testimony from Christopher Erickson2 that, in the summer of 2017,
McKenna injured himself while working for Craigue and that, “[t]o Mr. Erickson’s
knowledge, Mr. McKenna never received workers’ compensation” in connection with
2 Erickson was another of Craigue’s workers.
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this injury. Doc. no. 61 at 4. At the January 20, 2021, motion hearing, the
government made the following proffer with respect to this evidence:
Mr. DAVIS: Erickson was present with McKenna at the jobsite in
Concord and was there when McKenna fell. McKenna drove himself to
the hospital, but Erickson went with him. Mr. Craigue was not on the
site, but he did come to the hospital within a couple of hours and they
were all three at the hospital for five to six hours. Mr. McKenna was
out for five to six weeks after that.
Mr. McKenna, according to Mr. Erickson, did not make any worker’s
comp claim arising from the accident. Mr. Erickson spoke to Mr.
McKenna about any conversations he might have had with Mr.
Craigue about getting compensation and Mr. McKenna told Mr.
Erickson that he talked to Mr. Craigue and Mr. Craigue said, basically,
you’re out of luck, and that no payment would be made.
Mr. Erickson would further say that he and McKenna talked about
McKenna making a worker’s comp claim, but because Mr. McKenna
was working under the table, he was not to bring it up, but I don’t
think Mr. Erickson witnessed that or overheard that.
Doc. no. 74 at 39-40. Craigue argues that any testimony from Erickson concerning
McKenna and Craigue’s conversation about workers’ compensation is hearsay.
The court notes that Craigue’s response to McKenna—that McKenna was out
of luck, that there would be no workers’ compensation payment, and that McKenna
was not to bring up the possibility of obtaining such a payment—is not hearsay
because it is a statement of a party-opponent. See Fed. R. Ev. 801(d)(2). However,
based on the government’s proffer, Erickson did not overhear Craigue’s response to
McKenna’s request. McKenna merely told him what Craigue said after the fact.
Thus, the government must show that McKenna’s conveyance of Craigue’s response
to Erickson does not contravene the bar on hearsay. Cf. Fed. R. Ev. 805 (“Hearsay
within hearsay is not excluded by the rule against hearsay if each part of the
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combined statements conforms with an exception to the rule.”). In addition, the
government must show that any request made by McKenna to Craigue for workers’
compensation does not run afoul of the rule against hearsay.
The government contends that neither McKenna’s request nor Craigue’s
response are being offered to prove the truth of the matter(s) asserted; rather, the
government says, “the conversation shows McKenna’s expectation of receiving
workers’ compensation from [Craigue], and [Craigue’s] knowledge of that
expectation.” Doc. no. 117 at 5 n.1. The government is correct that an out-of-court
statement is only hearsay if it is offered to prove the truth of the matter asserted in
the statement. See Fed. R. Ev. 801(c); United States v. Cruz-Diaz, 550 F.3d 169,
176 (1st Cir. 2008). “[A]n out-of-court statement may be admitted over a hearsay
objection if the statement is offered . . . merely to show that a party had knowledge
of a material fact or issue.” Echo Acceptance Corp. v. Household Retail Servs., Inc.,
267 F.3d 1068, 1090 (10th Cir. 2001). Here, evidence bearing on whether McKenna
or Craigue thought McKenna could obtain a workers’ compensation payment in
connection with his 2017 work injury is relevant to McKenna’s employment status.
See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992); Restatement
(Second) of Agency § 220(2)(i); Saenger Org., Inc. v. Nationwide Ins. Licensing
Assocs., Inc., 119 F.3d 55, 61 (1997). And, independent of the truth of the content of
their conversation—i.e., regardless of whether McKenna truly was “out of luck” with
respect to workers’ compensation—the mere fact that McKenna and Craigue had a
discussion about McKenna’s ability to obtain a workers’ compensation payment
sheds light on whether they thought McKenna could obtain such a payment.
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Thus, the court concludes—on a provisional basis—that Erickson’s testimony
regarding Craigue and McKenna’s conversation does not offend the rule against
hearsay if offered for the reasons put forth by the government. The court’s ruling is
subject to change based on how Erickson testifies at trial. To the extent the court’s
provisional ruling does not change, the court will instruct the jury regarding the
purposes for which it may consider Erickson’s testimony. And the court reiterates
that the relevance of evidence that McKenna suffered an injury in 2017 is tied to
evidence that Craigue and McKenna discussed McKenna’s ability to obtain a
workers’ compensation payment. If the conversation is ultimately inadmissible, so
too is evidence of the fact of McKenna’s 2017 injury.
CONCLUSION
Doc. no. 107 is granted. Doc. no. 109 is denied to the extent it seeks to
exclude evidence on relevance and Rule 403 grounds. It is also denied to the extent
it seeks to exclude evidence of McKenna’s 2017 injury and his conversation with
Craigue about obtaining a workers’ compensation payment on hearsay grounds.
The court defers ruling on doc. no. 109 to the extent it challenges the admissibility
of Government Exhibit 103 (ID) on hearsay grounds.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 3, 2021
cc: Counsel of Record
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