USA v. GORDON

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
) 	1:19-cr-00007-JAW
v. 	)
)
DOUGLAS GORDON 	)
SUPPLEMENTAL ORDER ON MOTION IN LIMINE
On September 11, 2019, the Court issued a comprehensive order on the
Government’s 	Motion 	in 	Limine 	for 	Determination 	that 	Exhibits 	Qualify 	as
Admissible Records Under Rule 803, granting in part and denying in part the motion.
Order on Gov’t’s Mot. in Limine for Determination that Exs. Qualify as Admissible Rs.
Under Rule 803 (ECF No. 86) (Order). 	When Mr. Gordon objected to Special Agent
Loren Thresher as an “other qualified witness” under Federal Rule of Evidence 803,
the Government proffered Special Agent Thresher as a qualified witness:
Agent Thresher can describe in general how Bancorp identifies each
customer’s 	account 	and 	how 	the 	company’s 	record-keeping 	system
makes entries noting deposits and expenditures within such accounts.
Reply 	of 	the 	United 	States 	to 	the 	Def.’s 	Resp. 	to 	Gov’t’s 	Mot. 	in 	Limine 	for
Determination that Exs. Qualify as Admissible Rs. at 9-10 (ECF No. 65). 	In its
September 11, 2019, order, the Court described the standard for Special Agent
Thresher to be permitted to testify as an “other qualified witness”:
A witness does not need to have personally participated in or observed
the creation of the record; the witness is qualified if he or she has enough
familiarity with the record-keeping system of the entity to understand
and explain how the record came into existence.
Order at 22.
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However, at the September 30, 2019, hearing, in addressing the Government’s
Exhibit One involving the transaction records of Bancorp, Special Agent Thresher
admitted that he had “no familiarity” with Bancorp’s recordkeeping system. 	After
some discussion, the Assistant United States Attorney acknowledged that Special
Agent Thresher’s testimony would be similar for each proffered business record.
Accordingly, the Court concludes that Special Agent Thresher is not an “other
qualified witness” for purposes of the admission of any of the exhibits subject to the
Government’s June 3, 2019, motion in limine.
As the Court indicated, if the Government wishes to admit business records,
the 	Rules 	of 	Evidence 	provide 	two 	ways 	to 	admit 	those 	records. 	First, 	the
Government may present a certificate of authenticity under Rule 902 and second, the
Government may present a “custodian or other qualified witness” under Rule 803.
Rule 902(11) provides:
The original or a copy of a domestic record that meets the requirements
of Rule 803(6)(A)-(C), as shown by a certification of the custodian or
another qualified person that complies with a federal statute or a rule
prescribed by the Supreme Court. 	Before the trial or hearing, the
proponent must give an adverse party reasonable written notice of the
intent to offer the record—and must make the record and certification
available for inspection—so that the party has a fair opportunity to
challenge them.
F ED. R. E VID. 902(11). In its motion, the Government produced several certificates of
authenticity and the Court reviewed them. 	See, e.g., Gov’t’s Mot. in Limine for
Determination that Exs. Qualify as Admissible Rs. under Rule 803, Attach. 2, Cert. of
Authenticity of Business Rs. (Pursuant to Maine Rules of Evid. 803(6) and 902(11)
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(ECF No. 59). 	The Court agrees with the Government that the certificates of
authenticity it attached to the exhibits to its motion comply with Rule 902(11).
This does not end the discussion. 	Even though the Government presented
certificates of authenticity that comply with Rule 902(11), the Rule requires that the
domestic record “meets the requirements of Rule 803(6)(A)-(C).” 	F ED. R. E VID.
902(11). 	To meet these requirements, the Government must demonstrate that the
standards of the Rule apply. 	F ED. R. EVID. 803(6)(A)-(C). 	From what has been
presented, the Court agrees with the Government that the proffered records facially
meet the requirements of Rule 803(6)(A)-(C). However, Rule 803(6) also provides that
the business record is admissible if:
the opponent does not show that the source of information or the method
or circumstances of preparation indicate a lack of trustworthiness.
F ED. R. E VID. 803(6)(E). Mr. Gordon objected to Exhibits Fifteen, Fifteen-A, Fifteen-
B, Seventeen-A, and Seventeen-B on the ground that they are creations of the
Government rather than what the certifications purport them to be. 	Def.’s Resp. to
Gov’t’s Mot. in Limine that Exhibits Qualify as Admissible Rs. Under Rule 802 at 8-
10 (ECF No. 62).1 As explained in the Court’s September 11, 2019, order, the Court
did not view Mr. Gordon’s objections to Exhibits Fifteen, Fifteen-A, or Fifteen-B as
1 	Mr. Gordon also objected to Exhibits Six, Twenty, Twenty-A, Twenty-Three, and Twenty-Four
on the ground that they contain subjective information that indicates a lack of trustworthiness
pursuant to Rule 803(6)(E). Id. at 3-4, 12-15. Given the Court’s instructions to the Government during
the pretrial conference on September 23, 2019, and the hearing on September 30, 2019, regarding
customer emails and complaints, the Court does not view these exhibits as raising issues of
trustworthiness, but reserves final judgment on the matter pending their introduction at trial.
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raising issues of trustworthiness. Order at 25-37. The Court reserved judgment on
Exhibits Seventeen-A and Seventeen-B based on Rule 803(6)(E) concerns, which will
be addressed separately in response to the Government’s supplemental motion.
Gov’t’s Suppl. Mot. in Limine for Determination that Exs. 17, 17A and 17B Qualify as
Admissible Rs. Under Rule 803(6) (ECF No. 114).
Although the federal prosecutor vociferously objected to the notion that Mr.
Gordon had a right to object to the admission of an exhibit at trial on a basis that he
could have raised, but did not, in response to the Government’s motion in limine, the
Government will have the burden to demonstrate that the Court should apply waiver
principles to Mr. Gordon’s failure to object to the motion in limine on whatever ground
he asserts at trial.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of October, 2019
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