Court filing
OPPOSITION to MOTION in Limine to Preclude Summary Witness 451 filed by Plaintiff… — USA v. Ayvazyan et al (Dkt. 504)
Record facts
| Court | U.S. District Court for the Central District of California |
|---|---|
| Filed | 2021-06-11 |
U.S. District Court for the Central District of California · No. 2:20-cr-00579-SVW · Doc. 504 · 2021-06-11 · Docket on CourtListener
Summary
The government's opposition to defendant Richard Ayvazyan's motion in limine to preclude a summary witness (ECF 451) in USA v. Ayvazyan et al, No. 2:20-cr-00579-SVW, in the U.S. District Court for the Central District of California, filed June 11, 2021 as Doc. 504. It argues that summary chart exhibits tracing the flow of loan funds and comparing PPP and EIDL applications are admissible under Federal Rule of Evidence 1006, and that the underlying bank records and loan files were produced in discovery. The government says a managing director of Stout Risius Ross, LLC, retained to assist its investigation, will testify as a lay summary witness under Rules 602 and 701, not as an expert. It states the charts rest on records for around 24 accounts and around 27 loans, plus loan files for approximately 60 loans. The 28-page filing carries the /s/ signature of Scott Paetty.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
SCOTT PAETTY (Cal. Bar No. 274719)
CATHERINE AHN (Cal. Bar No. 248286)
BRIAN FAERSTEIN (Cal. Bar No. 274850)
Assistant United States Attorneys
Major Frauds/Environmental and Community Safety Crimes Sections
1100/1300 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-6527/2424/3819
Facsimile: (213) 894-6269/0141
E-mail:
Scott.Paetty@usdoj.gov
Catherine.S.Ahn@usdoj.gov
Brian.Faerstein@usdoj.gov
DANIEL S. KAHN
Acting Chief, Fraud Section
Criminal Division, U.S. Department of Justice
CHRISTOPHER FENTON
Trial Attorney, Fraud Section
Criminal Division, U.S. Department of Justice
1400 New York Avenue NW, 3rd Floor
Washington, DC 20530
Telephone: (202) 320-0539
Facsimile: (202) 514-0152
E-mail:
Christopher.Fenton@usdoj.gov
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
RICHARD AYVAZYAN,
aka “Richard Avazian” and
“Iuliia Zhadko,”
MARIETTA TERABELIAN,
aka “Marietta Abelian” and
“Viktoria Kauichko,”
ARTUR AYVAZYAN,
aka “Arthur Ayvazyan,” and
TAMARA DADYAN,
MANUK GRIGORYAN,
aka “Mike Grigoryan,” and
“Anton Kudiumov,”
ARMAN HAYRAPETYAN,
EDVARD PARONYAN,
aka “Edvard Paronian” and
“Edward Paronyan,” and
VAHE DADYAN,
No. CR 20-579-SVW-2
GOVERNMENT’S OPPOSITION TO
DEFENDANT RICHARD AYVAZYAN’S
MOTION IN LIMINE TO PRECLUDE
SUMMARY WITNESS (ECF 451);
MEMORANDUM OF POINTS AND
AUTHORITIES
Hearing Date: June 14, 2021
Hearing Time: 1:30 p.m.
Trial Date: June 15, 2021
Location: Courtroom of the
Hon. Stephen V.
Wilson
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 1 of 28 Page ID
#:6100
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendants.
Plaintiff United States of America, by and through its counsel
of record, the Acting United States Attorney for the Central District
of California, Assistant United States Attorneys Scott Paetty,
Catherine S. Ahn, and Brian Faerstein, and Department of Justice
Trial Attorney Christopher Fenton, hereby files its opposition to
defendant Richard Ayvazyan’s motion in limine to preclude summary
witness. (ECF 451.) This opposition is based upon the attached
memorandum of points and authorities, the files and records in this
case, and such further evidence and argument as the Court may permit.
Dated: June 11, 2021
Respectfully submitted,
TRACY L. WILKISON
Acting United States Attorney
SCOTT M. GARRINGER
Assistant United States Attorney
Chief, Criminal Division
/s/
SCOTT PAETTY
CATHERINE AHN
BRIAN FAERSTEIN
Assistant United States Attorneys
CHRISTOPHER FENTON
Department of Justice Trial Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 2 of 28 Page ID
#:6101
i
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
DESCRIPTION
PAGE
TABLE OF AUTHORITIES...............................................ii
MEMORANDUM OF POINTS AND AUTHORITIES................................1
I.
INTRODUCTION...................................................1
II.
STATEMENT OF FACTS.............................................2
A.
Describing the Flow of Funds..............................2
B.
Comparing the Many PPP and EIDL Loan Applications.........3
C.
The Summary Chart Exhibits Were Produced in a Form
that Allowed the Defense to Prepare to Cross-Examine
Summary Witnesses at Trial................................4
III. ARGUMENT.......................................................5
A.
The Summary Chart Exhibits Are Admissible Under
Federal Rule of Evidence 1006.............................5
1.
The Materials Underlying the Summary Chart
Exhibits Are Admissible and Were Made Available
to Defendants........................................6
2.
The Materials Underlying the Summary Chart
Exhibits Are Voluminous..............................9
B.
Ms. Robinson Will Testify Appropriately as a Lay
Witness Under Federal Rules of Evidence 602 and 701......11
C.
Neither Ms. Robinson’s Testimony Nor the Summary Chart
Exhibits Should Be Precluded Under Federal Rule of
Evidence 403.............................................15
1.
Ms. Robinson’s Testimony Should Not Be Precluded
Under Rule 403......................................15
2.
The Summary Chart Exhibits Should Not Be
Precluded Under Rule 403............................17
D.
Defendant’s Proposed Restrictions on Ms. Robinson’s
Testimony and the Summary Chart Exhibits Should Be
Rejected.................................................21
IV.
CONCLUSION....................................................23
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 3 of 28 Page ID
#:6102
ii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
DESCRIPTION
PAGE
CASES
Barsky v. United States, 339 F.2d 180 (9th Cir. 1964)..............20
Diamond Shamrock Corp. v. Lumbermens Mut. Cas. Co., 466 F.2d 722
(7th Cir. 1972)...............................................13
Goldberg v. United States, 789 F.2d 1341 (9th Cir. 1986)...........13
United States v. Abbas, 504 F.2d 123 (9th Cir. 1974)...........22, 23
United States v. Aubrey, 800 F.3d 1115 (9th Cir. 2015).11, 13, 15, 23
United States v. Boesen, 541 F.3d 838 (8th Cir. 2008)..............21
United States v. Fullwood, 342 F.3d 409 (5th Cir. 2003)........... 16
United States v. George, 160 F. App’x 450 (6th Cir. 2005)..........19
United States v. Keplinger, 776 F.2d 678 (7th Cir. 1985)............6
United States v. Lemire, 720 F.2d 1327 (D.C. Cir. 1983)............19
United States v. Leon-Reyes, 177 F.3d 816 (9th Cir. 1999)..........21
United States v. Montgomery, 384 F.3d 1050 (9th Cir. 2004).9, 11, 21,
23
United States v. Pree, 408 F.3d 855 (7th Cir. 2005)................13
United States v. Rizk, 660 F.3d 1125 (9th Cir. 2011)...........passim
United States v. Robinson, 774 F.2d 261 (8th Cir. 1985).............9
United States v. Scholl, 166 F.3d 964 (9th Cir. 1999)...............6
United States v. Vázquez-Soto, 939 F.3d 365 (1st Cir. 2019).........8
OTHER AUTHORITIES
Ninth Circuit Manual of Model Criminal Jury Instruction, No.
4.17 .....................................................20, 22
Ninth Circuit Manual of Model Criminal Jury Instructions, No.
3.9 .....................................................15, 22
RULES
Federal Rule of Evidence 403...................................15, 17
Federal Rule of Evidence 602...............................11, 12, 15
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 4 of 28 Page ID
#:6103
TABLE OF AUTHORITIES (CONTINUED)
DESCRIPTION
PAGE
iii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Federal Rule of Evidence 701...................................11, 15
Federal Rule of Evidence 803(6).....................................6
Federal Rule of Evidence 902(11)....................................6
Federal Rule of Evidence 1006.......................................5
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 5 of 28 Page ID
#:6104
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government intends to have a witness describe the flow of
fraudulently obtained funds using summary chart exhibits based on
documents produced in discovery. Defendants have moved to preclude
this testimony and these exhibits based on arguments already rejected
by this Court and misrepresentations of the facts. (ECF 451.)
Defendant’s motion is untethered to the facts of this case or
governing law, and should be denied for the following reasons.
First, the summary charts the government seeks to admit, which
synthesize voluminous information from bank records and COVID-19
disaster relief loan files, are admissible as summary exhibits under
Rule 1006. The government produced in discovery all of the bank
records and loan file information – months before its more recent
courtesy production of electronic copies of its trial exhibits to
defendants – and these underlying materials are admissible as self-
authenticating business records under Rules 803(6) and 902(11).
Second, contrary to defendant’s unfounded assumptions, Ms.
Robinson will appropriately be testifying as a lay, not expert,
witness. The government retained Ms. Robinson and the consulting
firm for which she works (Stout Risius Ross, LLC) to assist in the
government’s underlying investigation in this case, not to provide
expert witness testimony. Ms. Robinson will be testifying as a
summary witness based on her personal knowledge of the investigation
and the materials underlying the summary charts.
Third, Ms. Robinson’s anticipated testimony and the summary
charts are highly probative of defendant’s and his coconspirators’
guilt for the charged offenses in the superseding indictment. The
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 6 of 28 Page ID
#:6105
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
high probative value of this evidence is not substantially outweighed
by any danger of unfair prejudice, including the purported grounds
for prejudice defendant raises in his motion.
Finally, the limitations defendant proposes in the alternative
on Ms. Robinson’s testimony and the use of the summary charts at
trial are unnecessary and not supported by law or the facts of this
case, and should be rejected.
II.
STATEMENT OF FACTS
A.
Describing the Flow of Funds
The government retained Stout Risius Ross, LLC (“Stout”),
including Managing Director Marylee Robinson, to assist in its
investigation of defendants’ extensive fraudulent activities. In
sum, Stout helped the government follow the money. Having reviewed
volumes of loan files and bank records, the Stout team assisted by
describing the flow of funds from start to finish, including
explaining how the fraudulently-obtained funds were used.
Although not required to do so, one month before trial, the
government provided written notice to defendants of its intention to
call a member of the Stout team – namely Ms. Robinson - to testify at
trial. The government disclosed the nature of Ms. Robinson’s
testimony, including that she would speak to the specific financial
transactions referenced in the First Superseding Indictment:
Ms. Robinson will identify the accounts at various banks and
brokerages used by the defendants and their co-conspirators,
including the bank and brokerage accounts referenced in the
First Superseding Indictment. She will describe flows of funds
into, out of, and between these and other accounts, including to
trace the use of Paycheck Protection Program (PPP) and Economic
Injury Disaster Loan (EIDL) loan proceeds that were deposited or
transferred into these and other accounts.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 7 of 28 Page ID
#:6106
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(ECF 451-3.) The government further disclosed the basis of Ms.
Robinson’s testimony, including her “review of bank and brokerage
account records, as well as accounting and other business records
from escrow companies and vendors, which previously have been
provided to the defendants in discovery.” (Id.)
Pursuant to the Court’s order, on June 1, 2021, two weeks before
trial, the government provided defendants with a copy of the summary
chart exhibits that it anticipates Ms. Robinson will use as part of
her trial testimony. (See ECF 451-8.) This set of summary chart
exhibits (hereinafter referred to as the “Flow of Funds Summary
Charts”), describe the flow of fraudulently-obtained loan funds –
i.e., the exhibits follow the money – based on Ms. Robinson’s review
of bank records for around 24 accounts and files for around 27 loans,
which is voluminous. (See ECF 451-6.) Consistent with the
government’s prior written notice, most of this information
specifically ties back to the accounts and loans referenced in the
First Superseding Indictment. All of the information has been
previously produced in discovery and is admissible.
B.
Comparing the Many PPP and EIDL Loan Applications
Pursuant to the Court’s order, on June 1, 2021, two weeks before
trial, the government also provided defendants with a copy of a set
of summary chart exhibits summarizing information from the many
COVID-19 disaster relief loan applications submitted (or caused to be
submitted) by defendants (hereinafter the “Loan Summary Charts” and,
together with the “Flow of Funds Summary Charts,” the “Summary Chart
Exhibits”). The Loan Summary Charts are based on voluminous loan
files for approximately 60 loans alleged to be within the scope of
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 8 of 28 Page ID
#:6107
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the conspiracy. (See ECF 451-7.) The government anticipates that a
case agent will testify about the Loan Summary Charts at trial.1
C.
The Summary Chart Exhibits Were Produced in a Form that
Allowed the Defense to Prepare to Cross-Examine Summary
Witnesses at Trial
The Summary Chart Exhibits provided to defendants on June 1 were
in near-final form. In the cover email attaching the Summary Chart
Exhibits, the government explained that it reserved certain rights,
including: (i) “the right to change layout/presentment as needed for
technology or other presentation purposes but underlying content
remains the same”; (ii) “the right to remove information from summary
exhibits or correct information, as needed”; and (iii) “the right to
not seek admission of all the information in the list.” (ECF 451-8.)
Accordingly, the government marked the Summary Chart Exhibits
“draft”. (See ECF 451-6, 451-7.) None of these reserved rights,
however, potentially affect the content of the Summary Chart Exhibits
such that they would result in a substantive change that would hinder
the defense’s ability to effectively prepare to cross-examine Ms.
Robinson or a case agent at trial.2
1 The government does not anticipate that Ms. Robinson will use
the Loan Summary Charts as part of her trial testimony.
2 In the course of their review of the Summary Chart Exhibits,
counsel for defendant R. Ayvazyan flagged that the exhibits cited to
certain government exhibit numbers that were not on the government’s
trial exhibit list. (See ECF 451-9.) The government explained that
this was a citation error caused by the fact that some of the
government exhibit numbers changed between the time when the
government provided the summary chart exhibits and the trial exhibit
list to the defendants. (See id.) The detailed descriptions of the
government exhibits on which the summary chart relied (i.e., name of
account holder, bank, and last four digits of account number)
remained the same. Defendants therefore had notice of the documents
on which the summary chart exhibits rely and, with the aid of the
detailed index the government had provided in discovery, can easily
locate these documents (which had been previously produced to
defendants in discovery).
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 9 of 28 Page ID
#:6108
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. ARGUMENT
A.
The Summary Chart Exhibits Are Admissible Under Federal
Rule of Evidence 1006
Defendant contends that the “Summary Charts should be excluded
because the government has not met either [Rule 1006’s] or the Ninth
Circuit’s basic prerequisites for admitting summary charts.” (ECF
451 at 4-5.) Defendant is wrong.
Federal Rule of Evidence 1006 provides:
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.
Fed. R. Evid. 1006. The Advisory Committee Notes to Rule 1006 add
that, “[t]he admission of summaries of voluminous books, records, or
documents offers the only practicable means of making their contents
available to judge and jury. The rule recognizes this practice, with
appropriate safeguards.” Fed. R. Evid. 1006, 1972 Advisory Committee
Notes; see also United States v. Rizk, 660 F.3d 1125, 1130 (9th Cir.
2011) (“The purpose of the rule is to allow the use of summaries when
the documents are unmanageable or when the summaries would be useful
to the judge and jury.”) (citation omitted).
The Ninth Circuit has explained that, “[a] proponent of summary
evidence must establish that the underlying materials upon which the
summary is based (1) are admissible in evidence and (2) were made
available to the opposing party for inspection.” Rizk, 660 F.3d at
1130. While the underlying materials “must be admissible, [they]
need not themselves be admitted into evidence.” Id. With respect to
the contents of the summary charts, any contention that the chart may
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 10 of 28 Page ID
#:6109
6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
contain inaccuracies or omissions goes to the weight of the evidence,
not its admissibility. Rizk, 660 F.3d at 1131 at n.2; see also
United States v. Scholl, 166 F.3d 964, 978 (9th Cir. 1999)
(“‘Generally, objections that an exhibit may contain inaccuracies,
ambiguities, or omissions go to the weight and not the admissibility
of the evidence.’” (quoting United States v. Keplinger, 776 F.2d 678,
694 (7th Cir. 1985))). All of these criteria are met here.
1.
The Materials Underlying the Summary Chart Exhibits
Are Admissible and Were Made Available to Defendants
Defendant argues that the government “has not established the
admissibility of the evidence underlying” the Summary Chart Exhibits,
claiming the charts “rely on exhibits that the government has yet to
produce to defendants.” (ECF 451 at 5.) This is false.
The government produced in discovery all of the underlying
information reflected in the Summary Exhibit Charts. That
information consists of bank records and loan files, along with
certifications from the business entities that provided the records.
As the government explains more fully in its motion in limine #4 to
admit self-authenticating business records, all of these materials
are admissible as business records and self-authenticating under
Federal Rules of Evidence 803(6) and 902(11). (See ECF 468.) In
short, the evidence underlying the Summary Chart Exhibits is both
admissible and has been made available to defendant for inspection.
Rizk, 660 F.3d at 1130.
Moreover, defendant’s contention that the “exhibits” themselves
have not yet been produced is factually inaccurate and misleading.
It is also wholly irrelevant. The government has clearly identified
for defendant the self-authenticating business records summarized in
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 11 of 28 Page ID
#:6110
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Summary Chart Exhibits. Specifically, the Summary Chart Exhibits
refer to exhibit numbers reflected in the exhibit list the government
provided to the defense on June 1, 2021, and the exhibit list in turn
refers to the Bates-numbers for all of the materials previously
produced to the defense. The Summary Exhibit Charts also describe
the records and loan files on which they rely. While not required to
do so, the government has endeavored to provide defendants with
electronic copies of all of the government’s trial exhibits in
advance of trial. (See ECF 473.) But, as this Court recognized in
its Order denying other defendants’ ex parte applications to continue
trial, “an electronic copy of each exhibit is not what allows an
attorney to meaningfully prepare for trial; rather, it is the
documents underlying those exhibits that allow meaningful
preparation.” (ECF 492 at 1 (emphasis in original).) Defendants
have had these documents for months.
Defendant also claims that the Summary Chart Exhibits “contain
images that have not been produced in discovery and that are not
admissible as evidence.” (ECF 451 at 6.) Defendant points only to
four photographs of residential properties sourced from Zillow.com,
claiming that because the government “has not disclosed how the
images were obtained, when, by whom, or what they purported to be,”
they are inadmissible. (Id.) This claim is false. The government
included on each slide the specific link to the Internet website
where the relevant pictures may be found. And defendant redacted it.
Defendant also argues that, because “the images were not
included on the government’s exhibit list,” they are therefore
inadmissible. This too is false. The images are part of the Summary
Chart Exhibits that were timely disclosed to defendant pursuant to
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 12 of 28 Page ID
#:6111
8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the Court’s order and were therefore timely disclosed to defendant.
Defendant’s claim that this timely disclosure provided insufficient
notice is frivolous and, quite frankly, a waste of the Court’s time –
particularly given that the Internet link to the pictures were
included alongside the pictures.
Moreover, during trial, case agents with personal knowledge of
the relevant properties will identify these images as reflecting
houses purchased by defendants in furtherance of the charged
conspiracies. There is no requirement that a witness have personally
taken a photograph being offered into evidence in order to
authenticate the photograph so long as they have personal knowledge
of what is depicted. See, e.g., United States v. Vázquez-Soto, 939
F.3d 365, 374 (1st Cir. 2019) (“A photograph’s contents, buttressed
by indirect or circumstantial evidence, can form a sufficient basis
for authentication even without the testimony of the photographer or
some other person who was present at the time it was taken.”)
(citation omitted). In any event, defendant’s claim that the four
photographs invalidate the admissibility of the Summary Chart
Exhibits as a whole is also frivolous and should be rejected.3
3 Defendant also argues that the Summary Chart Exhibits “rely on
exhibits that were not included on the government’s witness [sic]
list,” referring to the three exhibit numbers in the charts that were
not on the government’s trial exhibit list. Despite the government
explaining to defendant that the references to those exhibit numbers
were “citation errors,” not omissions (i.e., several incorrect
exhibit numbers were inadvertently listed in the charts), defendant
still raises this issue with the Court as a purported basis for
precluding the admissibility of the Summary Chart Exhibits
altogether. (See ECF 451-9.)
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 13 of 28 Page ID
#:6112
9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2.
The Materials Underlying the Summary Chart Exhibits
Are Voluminous
Defendant’s challenge to the voluminousness of the records
underlying the Summary Chart Exhibits similarly is without merit.
Defendant claims, erroneously, that the government’s recent motion to
redact the superseding indictment at trial with respect to the
allegation of 151 loans “limits the evidence the government must
present at trial to evidence related to the 17 loans actually charged
in the indictment.” (ECF 451 at 5.) That is not the law.
“The rule is well established that the government in a
conspiracy case may submit proof on the full scope of the conspiracy;
it is not limited in its proof to the overt acts alleged in the
indictment.” Rizk, 660 F.3d at 1131 (collecting cases within and
outside of Ninth Circuit). The defendant in Rizk argued that summary
charts reflecting 96 real estate transactions were “overbroad” where
the “overt acts and substantive counts of the indictment identified
only nine specific properties.” Id. at 1129, 1129 n.1. The court
rejected this argument, finding that the “real estate transactions
shown on the charts were ‘inextricably intertwined’ with the
conspiracy charge” and the “government offered the summary charts to
show the full scope of that conspiracy and as proof that the non-
specified transactions were not ‘other acts’ at all.” Id. at 1132.
See also United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.
2004) (summary exhibit admissible where all entries were
“‘inextricably intertwined’ with the conspiracy, and therefore not
subject to Rule 404(b), because each occurred within the temporal
scope of the conspiracy and comprised the conspiracy”); United States
v. Robinson, 774 F.2d 261, 276 (8th Cir. 1985) (“The summary properly
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 14 of 28 Page ID
#:6113
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
included all 105 applicants [rather than the 15 named in the
indictment], because information regarding all of these individuals
was relevant in delineating the enormous scope of the [loan fraud]
scheme.”).
The same reasoning applies here. The redacted superseding
indictment that will be submitted to the jury, following the Court’s
order granting the government’s motion to redact (ECF 478), alleges
broad conspiracies (Counts 1 and 26) among at least eight charged
coconspirators to submit fraudulent COVID-19 disaster relief loan
applications and launder the ill-gotten proceeds of those loans.
(See generally ECF 422-2.) With respect to the alleged overt acts,
the redacted superseding indictment specifies that defendants
“commit[ted] the following overt acts, among others,” in detailing
examples of how the charged conspiracy was carried out. (Id., ¶ 32.)
Thus, the alleged overt acts do not limit the breadth of the charged
conspiracies to 17 loans, as defendant contends. See Rizk, 660 F.3d
at 1129 n.1 (summary charts not overbroad where “the indictment
alleged that the defendants committed the enumerated overt acts,
‘among others,’ in furtherance of the conspiracy”).
Indeed, in granting the government’s motion to redact, the Court
found that the removal of the allegation about 151 loans being part
of the alleged conspiracies “does not in any way change the charged
offenses, the overt acts and objects of the conspiracy, or any of the
allegations in the indictment other than the total number of alleged
fraudulent loans and their value.” (ECF 478 at 22.) Redaction of
the superseding indictment allows the government to meet its burden
of proof without having to prove each of the 151 fraudulent loan
applications. But it does not alter the relevance of the numerous
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 15 of 28 Page ID
#:6114
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
fraudulent loan applications beyond the 17 described in the overt
acts – including multiple applications made on behalf of the same
companies identified in the overt acts - to the charged conspiracies.
Rizk, 660 F.3d at 1132; Montgomery, 384 F.3d at 1062.
The loan file and bank account records that underlie the Summary
Chart Exhibits pertain directly to the charged bank/wire fraud and
money laundering conspiracies. The Flow of Funds Summary Charts
summarize information deriving from around 24 separate bank accounts
and around 27 loan files. The Loan Summary Charts pertain to
approximately 60 separate loan files, including loan applications,
supporting documentation, loan agreements, and other information
considered by the lenders in connection with processing the loans.
Presentation of this voluminous evidence at trial would be
“unmanageable,” and use of the proposed Summary Chart Exhibits “would
be useful to the judge and jury.” Rizk, 660 F.3d at 1130 (underlying
records were “standard real estate records”); see also United States
v. Aubrey, 800 F.3d 1115, 1130 (9th Cir. 2015) (“Multiple bankers’
boxes of bank statements constitute the type of materials anticipated
by Rule 1006.”).
The Summary Chart Exhibits summarize admissible, voluminous
records that have been properly made available to defendant for his
review. They are therefore admissible under Federal Rule of Evidence
1006.
B.
Ms. Robinson Will Testify Appropriately as a Lay Witness
Under Federal Rules of Evidence 602 and 701
Defendant argues that “Ms. Robinson’s testimony should be
excluded because it will not be based on personal knowledge, as
required by Federal Rules of Evidence 602 and 701.” (ECF 451 at 6.)
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 16 of 28 Page ID
#:6115
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant makes a number of assumptions, without any factual basis,
about the role of Ms. Robinson and Stout in connection with the
government’s investigation. Among other things, defendant claims
that Ms. Robinson “has no independent knowledge of the facts at
issue” and “has assumed the role of an expert witness while dodging
the rigorous standards applied to expert testimony.” (Id. at 7.)
Defendant is mistaken on the facts and the law.
As a member of the Stout investigatory team, Ms. Robinson will
be testifying in a lay capacity under Rules 602 and 701, based on her
personal knowledge of the materials underlying the Flow of Funds
Summary Charts and role in the investigation. Ms. Robinson will
provide this foundation for her personal knowledge of the underlying
information during her direct examination. See Fed. R. Evid. 602
(“Evidence to prove personal knowledge may consist of the witness’s
own testimony.”). As explained, her testimony will be limited to
describing the flow of funds described in the Flow of Funds Summary
Charts (ECF 451-6), including identifying the bank and brokerage
accounts used by defendants to receive, transfer, and spend the
proceeds of the fraudulent PPP and EIDL loans. (ECF 451-3.)
Defendant recognizes that the “Ninth Circuit allows summary
witnesses to testify when those witnesses are summarizing their
personal knowledge gained by participating in their investigation of
a case.” (ECF 451 at 6-7 (citing United States v. Aubrey, 800 F.3d
1115 (9th Cir. 2015).) Indeed, in Aubrey, the Ninth Circuit
concluded that a forensic auditor from the United States Department
of Housing and Urban Development (“HUD”) serving as a summary witness
“was not required to be certified as an expert” even though he “might
have been eligible to be certified as an expert” and he made “two
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 17 of 28 Page ID
#:6116
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
passing references to the ‘last-in-first-out [accounting] method.”
Aubrey, 800 F.3d 1129. The HUD forensic auditor “introduced a series
of charts reflecting the movement of funds among [defendant’s]
business and personal accounts, following each [housing authority]
requisition payment between July 2003 and June 2004.” Id. at 1122.
The Ninth Circuit held that it was not error for the district court
to allow the HUD auditor to testify as a lay summary witness, where
the court “properly restricted his testimony to the areas in which he
had personal knowledge (the documents, investigation, and the methods
he used to prepare his summary) and prevented him from providing in-
depth analysis of various accounting methods.” Id. at 1129. See
also Goldberg v. United States, 789 F.2d 1341, 1343 (9th Cir. 1986)
(affirming district court’s determination that the testimony of “an
experienced revenue agent” as to summaries of voluminous tax records
did not include any expert opinions or conclusions); United States v.
Pree, 408 F.3d 855, 869 (7th Cir. 2005) (“When a summary witness
simply testifies as to what the government's evidence shows, he does
not testify as an expert witness.”).
The government expects Ms. Robinson will provide the same type
of testimony using the Flow of Funds Summary Charts, including
introducing and describing the “movement of funds” reflected in the
charts. While Ms. Robinson has worked with other Stout personnel in
connection with its investigative role, that fact does not undermine
her personal knowledge or ability to testify as a summary witness in
a lay capacity. See, e.g., Diamond Shamrock Corp. v. Lumbermens Mut.
Cas. Co., 466 F.2d 722, 727 (7th Cir. 1972) (“It is not necessary . .
. that every person who assisted in the preparation of the original
records or the summaries be brought to the witness stand.”).
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 18 of 28 Page ID
#:6117
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant points to Ms. Robinson’s qualifications in her
professional bio on Stout’s website, including the fact that her
“list of license and designations includes Certified Public
Accountant (CPA), Certified in Financial Forensics (CFF) and
Certified Fraud Examiner (CFE).” (ECF 451 at 2.) But Ms. Robinson’s
impressive qualifications do not dictate the type of testimony (lay
or expert) she may or will provide at trial. Rather, the content of
her testimony does. Here, just as law enforcement agents often do in
connection with investigations for which they have assisted, Ms.
Robinson will be providing summary testimony about her personal
knowledge of the voluminous information developed as part of Stout’s
assistance in the government’s investigation. She is quite literally
following the money – that simply does not require her to form an
expert opinion; it is descriptive in nature.
In fact, as defendant acknowledges, Ms. Robinson’s Stout bio
reflects that she “specializes in providing expert testimony and
litigation consulting services, including . . . conducting fraud and
forensic accounting investigations.” (ECF 451 at 2 (citing
https//www.stout.com/en/professionals/marylee-robinson) (emphasis
added).) Her consulting services include “extensive experience
providing fraud and forensic accounting services in white collar
crime cases with an emphasis on matters involving the analysis of
voluminous documents and data” as well as providing “assistance to
the Department of Justice in a series of investigations of corporate
executives . . .” See https//www.stout.com/en/professionals/marylee-
robinson. Ms. Robinson, and the Stout team, have served in this
consulting, investigative role here, and she will testify
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 19 of 28 Page ID
#:6118
15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
appropriately as a lay, summary witness. Fed. R. Evid. 602, 701;
Aubrey, 800 F.3d 1129.
C.
Neither Ms. Robinson’s Testimony Nor the Summary Chart
Exhibits Should Be Precluded Under Federal Rule of Evidence
403
Defendant also challenges the admissibility of both Ms. Robinson
as a testifying summary witness and the Summary Chart Exhibits under
Rule 403. Defendant’s arguments on both grounds are without merit.
1.
Ms. Robinson’s Testimony Should Not Be Precluded Under
Rule 403
Defendant contends that “Ms. Robinson’s professional
qualifications and history of testifying as an expert on behalf of
the Department of Justice will improperly influence the jury’s view
of the evidence in the summary charts, unduly prejudicing the
defendants.” (ECF 451 at 8.) Defendant further claims that allowing
Ms. Robinson to testify “will place the imprimatur of a certified
public accountant on contested issues at trial.” (Id. at 9.)
Crediting defendant’s concerns about the qualifications of Ms.
Robinson as a driving basis to exclude her testimony as unfairly
prejudicial would effectively disqualify numerous witnesses who
testify on behalf of the government, including IRS and FBI agents who
similarly have accounting credentials and testify as lay witnesses.
In any event, defendant’s concerns are sufficiently mitigated by the
instruction the government expects the Court will provide to the jury
regarding the Credibility of Witnesses. See Ninth Circuit Manual of
Model Criminal Jury Instructions, No. 3.9. The jury can be trusted
to follow the Court’s instructions. In addition, defendant will have
a full opportunity to cross-examine Ms. Robinson regarding her
credentials, personal knowledge, and investigative findings, as well
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 20 of 28 Page ID
#:6119
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
as “the witness’s interest in the outcome of the case, if any” and
“the witness’s bias or prejudice, if any.” Id.; see also Rizk, 660
F.3d at 1134 (defendant had opportunity “to cross-examine the
government witnesses who prepared” summary charts).
Defendant also speculates as to the degree of prejudice that
purportedly could arise out of the order in which Ms. Robinson
testifies. According to defendant, Ms. Robinson should neither be
permitted to testify as an initial “overview witness” (citing law
outside the Ninth Circuit) or at the end of the government’s case
(citing United States v. Fullwood, 342 F.3d 409, 413 (5th Cir.
2003)).4 (ECF 451 at 9.) Wherever Ms. Robinson testifies within the
government’s case-in-chief, defendant still will have the mitigating
safeguards of the Court’s cautionary instruction to the jury and the
ability to cross-examine Ms. Robinson fully. In any event, the
government does not anticipate calling Ms. Robinson among its first
witnesses as an “overview witness” nor at the end of its case-in-
chief.
Balanced against any minimal risk of unfair prejudice, Ms.
Robinson’s anticipated testimony is highly probative as to the
evidence of defendants’ guilt. Ms. Robinson will aid the jury in its
consideration of voluminous bank records and loan files that would be
“unmanageable” without a summary witness or summary charts. Rizk,
660 F.3d at 1130. Ms. Robinson’s testimony will be particularly
probative as to the money laundering conspiracy charge, as she will
testify about the flow of funds from the fraudulent loans through the
4 Notably, Fullwood involved a summary witness who served as the
government’s “final rebuttal witness,” not just a witness during its
case-in-chief. Fullwood, 342 F.3d at 413.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 21 of 28 Page ID
#:6120
17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
various bank accounts defendants controlled and the expenditures made
with those loan proceeds. Ms. Robinson’s testimony will provide an
efficient vehicle, based on the underlying admissible bank records
and loan files, for the jury’s consideration of this evidence.
The high probative value of Ms. Robinson’s testimony thus is not
substantially outweighed by the danger of unfair prejudice, and she
should be permitted to testify at trial as a summary witness.
2.
The Summary Chart Exhibits Should Not Be Precluded
Under Rule 403
Defendant raises similar arguments in seeking to exclude the
highly probative Summary Chart Exhibits under Rule 403, all of which
should be rejected.
First, with respect to probative value, defendant contends the
charts “contain irrelevant information” based on the government’s
motion to redact the superseding indictment with respect to the
allegation about 151 loans. (ECF 451 at 10-11.) Defendant once
again claims that the government’s evidence at trial should be
arbitrarily limited to “the 17 loans included in the redacted
superseding indictment, and the other loan applications are
irrelevant.” (Id. at 11.) For the reasons previously discussed in
section III.A.2 above, defendant’s argument is contrary to the law of
conspiracy and the Federal Rules of Evidence, and belied by the
factual relevance of the loan files and bank records underlying the
Summary Chart Exhibits to the extensive fraudulent conduct charged in
this case. The additional loan applications reflected in the Summary
Chart Exhibits are directly relevant to the overall charged conduct –
and contrary to defendant’s claim that “allowing the summary witness
to testify about 60 loans” would be “wasting both the jury’s and
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 22 of 28 Page ID
#:6121
18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Court’s time,” (ECF 451 at 11), it would be an even more significant
waste of time to preclude this admissible and relevant evidence
coming in through the Summary Chart Exhibits.5
Second, with respect to supposed unfair prejudice, defendant
argues that the charts are “inflammatory” because the Flow of Funds
Summary Charts contain “inflammatory photos of homes” and
“unflattering photos of the named defendants.” (ECF 451 at 11.)
There is nothing inflammatory about these photos, and, in fact, they
are highly probative to the jury’s consideration of the charges
against defendants. The photos of the homes demonstrate the true and
accurate nature of the properties purchased using the millions of
dollars in fraudulent proceeds from defendants’ scheme, including an
aerial shot of defendant’s sprawling, $3.25 million mansion in
Tarzana. (See ECF 451-6 at 8.)
As for the photos of the defendants, the photos will be helpful
to the jury in tracking which of the numerous defendants (who will be
in court and visible to the jury) were responsible for each of the
financial transactions reflected in the summary charts. Defendant
5 Defendant also claims that two pages of the summary charts
“are misleadingly titled ‘Example Loans Applied for by Companies
Included in First Superseding Indictment,’ which implies that each of
the loans on those pages was charged in the indictment.” (ECF 451 at
10 (referring to ECF 451-7 at 4-5).) Defendant’s contention is that
the government is “attempting to have their cake and eat it too”
because “most of the loans on those two pages are not mentioned in
the indictment.” (Id.) There is nothing misleading about the title
or content of these pages. As the heading states, the multiple loan
applications reflected in the chart were made on behalf of companies
(or purported companies) that are identified in the superseding
indictment even if not all of the loans are similarly identified.
The fact that a number of these companies, at the direction of
defendant and his coconspirators, submitted multiple COVID-19
disaster relief loan applications in the span of just a few months’
time is highly probative of the fraudulent nature of the loan
applications.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 23 of 28 Page ID
#:6122
19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
cites an unpublished case from the Sixth Circuit, United States v.
George, 160 F. App’x 450 (6th Cir. 2005), for the proposition that a
“mug shot tends to make people believe that the person is ‘bad,’ and
therefore can be unfairly prejudicial.” (ECF 451 at 11-12.) But the
photographs in the Flow of Funds Summary Charts are not “mug shots.”
They are largely sourced from Department of Motor Vehicles
identification photographs that have been produced to defendants in
discovery, and do not carry the same potential prejudicial impact a
photo of someone in jail or in an orange jumpsuit might.6
Third, defendant also contends that the Summary Chart Exhibits
are “argumentative” because, for example, some are “titled ‘Use of
EIDL/PPP Funds’ and purport to show transfers of money between
entities that received loan funds and other businesses.” (ECF 451 at
12.) While defendant would prefer the government use the “underlying
images of bank records” to illustrate the use of funds and transfers,
the entire point of the summary exhibits is to synthesize voluminous
records that would be unmanageable to present to the jury. Defendant
does not appear to take issue with the accuracy of the underlying
information (though he could do so on cross-examination), and summary
charts need not contain defendant’s version of events. See United
States v. Lemire, 720 F.2d 1327, 1349 (D.C. Cir. 1983) (“A summary,
to be admissible, we think need not give effect to the contentions of
the accused.” (quoting Flemister v. United States, 260 F.2d 513, 517
(5th Cir. 1958))); Barsky v. United States, 339 F.2d 180, 181 (9th
6 In any event, although the government does not believe it
would be necessary or applicable under the circumstances, the Court
can give a limiting instruction regarding the photographs, or a
variation thereof, if necessary. See Ninth Circuit Manual of Model
Criminal Jury Instructions, No. 2.13 (“Photos of Defendant,
Mugshots”).
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 24 of 28 Page ID
#:6123
20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Cir. 1964) (rejecting defendant’s contention that “summary did not
contain [his] version of his [s]ource of the money and, therefore, it
was incomplete”).
Defendant further points to the Summary Chart Exhibits’
selection of “certain transactions to highlight devoid of any
qualifying information.” (ECF 451 at 12 (citing ECF 451-6 at 12).)
But there is nothing inherently misleading about the highlighting or
bolding of the line-items in the one page defendant identifies, or
the information that was selected for inclusion in the charts. See,
e.g., Rizk, 660 F.3d at 1125 (summary charts approved by court
included “color-coding”). And defendant will have the full
opportunity to cross-examine Ms. Robinson about these and other
aspects of the Flow of Funds Summary Charts. Id. at 1134.
Defendant’s final argument - that the “summary charts do not
contain straightforward presentation of facts” but instead “ultimate
conclusions the government intends to argue to the jury” – is not
supported by the actual content reflected in the summary charts,
which the Court has available for its review. (ECF 451-6, 451-7.)
The Flow of Funds Summary Charts describe the flow of funds including
to show how the PPP and EIDL loan proceeds were used, and the Loan
Summary Charts list loan applications and related information that is
no doubt relevant. Nevertheless, the government has proposed in its
proposed jury instructions (ECF 373), and anticipates the Court will
provide, the Ninth Circuit’s model criminal instruction for “Charts
and Summaries Admitted Into Evidence,” which should provide adequate
safeguards that the jury will give the Summary Chart Exhibits “only
such weight as [the jurors] think the underlying material deserves.”
Ninth Circuit Manual of Model Criminal Jury Instructions, No. 4.17.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 25 of 28 Page ID
#:6124
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendant’s driving concern rests on his realization that the
voluminous records and facts summarized in the charts, drawn fairly
upon the underlying evidence obtained by the government, proves his
guilt. But “evidence is not unfairly prejudicial merely because it
tends to prove a defendant’s guilt.” United States v. Boesen, 541
F.3d 838, 848-49 (8th Cir. 2008) (finding summary charts not unfairly
prejudicial). The Ninth Circuit similarly has “previously rejected
403 challenges to the admission of summary evidence that was relevant
and not unfairly prejudicial,” and defendant presents no compelling
basis for a different conclusion here. See Rizk, 660 F.3d at 1133;
see also United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir.
2004) (“No unfair prejudice resulted, both because the district court
gave a limiting instruction and because defendants had notice of the
[summary] exhibit and an opportunity to cross-examine the agent about
her assumptions.”).7
D.
Defendant’s Proposed Restrictions on Ms. Robinson’s
Testimony and the Summary Chart Exhibits Should Be Rejected
Defendant alternatively proposes that certain limits be placed
on Ms. Robinson’s testimony if she is permitted to testify. The
Court should reject defendant’s proposed limitations.
7 Defendant relies several times on United States v. Leon-Reyes,
177 F.3d 816, 820 (9th Cir. 1999), including the Ninth Circuit’s
cautionary words that “[s]ummaries are normally prepared by an
interested party and therefore may not be completely accurate or may
be tainted with the preparing party’s bias.” Id. at 820. (See ECF
451 at 7, 8, 11.) However, Leon-Reyes pertained to the preparation
of “summaries of oral testimony” from a separate, prior trial, id. at
820 (emphasis added), a uniquely different scenario than summaries of
financial information reflected in business records. The court in
Leon-Reyes nonetheless affirmed the district court’s admission of
summary exhibits, endorsing the “numerous advantages” that summary
exhibits provide during trial. Id.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 26 of 28 Page ID
#:6125
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
First, consistent with his erroneous arguments described above,
defendant asserts that “Ms. Robinson’s testimony and the summary
charts she presents should be limited to loans charged in the
superseding indictment.” (ECF 451 at 14.) As previously explained,
testimony and evidence regarding numerous fraudulent loans and
attendant financial transactions beyond those identified in the overt
acts are directly relevant to the charged conspiracies in this case
and highly probative of defendant’s guilt. (See infra section
III.A.2.) Defendant’s arbitrary limitation on the government’s
evidence is neither supported in the law nor the facts of this case,
and should be rejected.
Second, defendant states that “limiting instructions must be
given during Ms. Robinson’s testimony to ensure that the jury
understands how to interpret Ms. Robinson’s testimony, and the weight
to ascribe that testimony.” (ECF 451 at 14.) A limiting instruction
at the time of Ms. Robinson’s testimony is unnecessary, as the
government expects that the jury will be instructed on the
credibility of witnesses as well as charts and summaries admitted
into evidence before the jury deliberates. See Ninth Circuit Manual
of Model Criminal Jury Instructions, Nos. 3.9, 4.17.
Third, defendant contends that the Summary Chart Exhibits
“should not be admitted into evidence and should not be given to the
jury during their deliberations.” (ECF 451 at 14.) Defendant cites
a Ninth Circuit case from 1974 for the proposition that “where charts
are used to aid witness testimony, they should not be submitted to
the jury.” (Id. (citing United States v. Abbas, 504 F.2d 123 (9th
Cir. 1974).) What defendant fails to mention, however, is that the
charts at issue in Abbas “summariz[ed] the testimony of the
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 27 of 28 Page ID
#:6126
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
witnesses” and were prepared by the government as “allegedly
demonstrative charts,” which “should not have gone to the jury for
use during their deliberations.” Abbas, 504 F.2d at 124, 125. That
factual scenario is inapposite and stands in stark contrast to the
other more recent Ninth Circuit cases discussed herein where the
court has approved of the use and admission of summary charts into
evidence. See, e.g., Rizk, 660 F.3d at 1134; United States v.
Aubrey, 800 F.3d 1115, 1130 (9th Cir. 2015); Montgomery, 384 F.3d at
1062. Indeed, the Ninth Circuit recognizes the appropriateness of
the admission of summary charts into evidence given its recommended
model criminal jury instruction for this very evidence.
IV.
CONCLUSION
For the foregoing reasons, the government respectfully requests
that this Court deny defendant’s motion to preclude summary witness
testimony, and permit the government to (i) call Marylee Robinson as
a summary witness at trial, and (ii) introduce into evidence the
Summary Chart Exhibits the government has produced to defendants.
Case 2:20-cr-00579-SVW Document 504 Filed 06/11/21 Page 28 of 28 Page ID
#:6127File and source
- File
- gov.uscourts.cacd.813904.504.0.pdf
- Size
- 251,535 bytes
- SHA-256
- 10a132810aa575744d435f1700afc76719de2608346b5665791a2deb3ebf9fc5
- Original
- PACER (login required)