U.S. v. Ganier
| Decision Date | 15 November 2006 |
| Docket Number | No. 05-6350.,05-6350. |
| Citation | 468 F.3d 920 |
| Parties | UNITED STATES of America, Plaintif-Appellant, v. Albert GANIER, III, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Eli Richardson, Assistant United States Attorney, Nashville, Tennessee, for Appellant. Thomas H. Dundon, Neal & Harwell, Nashville, Tennessee, for Appellee. ON BRIEF: Eli Richardson, Paul M. O'Brien, Assistant United States Attorneys, Nashville, Tennessee, for Appellant. Thomas H. Dundon, Aubrey B. Harwell, Jr., Neal & Harwell, Nashville, Tennessee, for Appellee.
Before BATCHELDER, MOORE, and BALDOCK, Circuit Judges.*
The United States appeals the district court's decision excluding certain evidence from the criminal trial of Defendant-Appellee Albert Ganier, III ("Ganier"). Ganier is charged with one count of endeavoring to obstruct justice in violation of 18 U.S.C. §§ 1503(a) and 2 and three counts of altering, destroying, or concealing documents in violation of 18 U.S.C. §§ 1519 and 2 for, among other acts, allegedly deleting certain computer files with intent to impede a federal investigation. On the morning on which Ganier's trial was to begin, Ganier filed a motion to exclude the proposed testimony of a government computer specialist, arguing that it was expert testimony for which the government had not provided a written summary as required by Federal Rule of Criminal Procedure 16(a)(1)(G). The district court granted the motion, bringing the proceedings to a halt while the government filed this interlocutory appeal. We agree that the proposed testimony was expert testimony for which a written summary should have been provided, but because less severe remedies were not given adequate consideration, we VACATE the decision of the district court excluding the evidence and REMAND the case for further proceedings consistent with this opinion.
According to the Superseding Indictment,1 Ganier was Chief Executive Officer, Chairman of the Board, a shareholder, and a founder of Education Networks of America, Inc. ("ENA") and its predecessor companies. Joint Appendix ("J.A.") at 23. In July 2002, a television station broadcast news stories discussing alleged relationships between Ganier, certain high-ranking Tennessee officials, and John Stamps, a lobbyist for ENA.2 The news stories included allegations of improprieties and favoritism in connection with contracts awarded to ENA by the State of Tennessee and solicitations of Tennessee and Texas officials for additional contracts.
In August 2002, a federal task force was formed and began a criminal investigation of the contracts and solicitations as well as various companies associated with John Stamps. Assisted by the federal task force, a federal grand jury began an investigation in September 2002, later transferred to a successive grand jury. Over the course of the next three months, the grand jury issued a number of subpoenas. In December 2002, after the grand jury issued subpoenas on various companies and state agencies, Ganier allegedly attempted to implement an email "retention" policy at ENA in which employees' emails would be set to delete after six months, deleted files relevant to the ongoing investigation from his laptop computer, deleted relevant files from his desktop computer, and deleted relevant files from an ENA employee's computer.
Ganier was ultimately indicted on one count of endeavoring to obstruct justice and three counts of altering, destroying, or concealing documents with intent to impede a federal investigation, and the case proceeded towards trial. As ordered by the district court, Ganier filed a summary of expected expert testimony on June 17, 2005, in which he indicated that he would offer evidence that the files in question were transferred to the recycle bin rather than deleted, and that approximately 225 duplicates and similar drafts of the allegedly deleted documents remained on the computers. J.A. at 159-61 (Summ. of Expert Test. at 4-6). He also indicated that he would offer evidence showing the following:
The computers in question each possessed "search" functions that, if utilized, would have located all or substantially all of the duplicates and similar drafts or versions of the allegedly "deleted" documents, thereby permitting a user intent on concealment to delete all or substantially all copies of particular documents on those computers.
According to the government, its forensic computer specialist, Special Agent Wallace Drueck of the IRS, decided to use forensic software to determine what searches were run on the three computers. J.A. at 386, 389-90 (Hr'g Tr. (AUSA Eli Richardson) at 8, 10-11). On August 1, 2005, the day before the date set for trial, Drueck determined from reports generated by the forensic software that searches had been run in December 2002 using search terms relevant to the grand jury investigation and the allegedly deleted files. J.A. at 348-62 (Attachs. to Def.'s Mot. to Exclude); J.A. at 386-87 (Hr'g Tr. (AUSA Richardson) at 8-9). The next morning, before the jury was impaneled, Ganier filed a motion to exclude the reports and related testimony, J.A. at 346 (Def.'s Mot. to Exclude), which the district court granted. The government timely appealed, and the district court stayed the trial pending the appeal.
Ganier first argues that we should review the district court's decision only for plain error because the government failed to make an offer of proof in accordance with Federal Rule of Evidence 103(a). Rule 103(a) states, in relevant part:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . .
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
FED. R. EVID. 103(a). A formal offer of proof is not required, but the substance of the evidence, what it will show, and the grounds for admissibility must be made known to the court or be apparent from the context. See United States v. Crockett, 435 F.3d 1305, 1311-12 (10th Cir.2006); United States v. Moore, 425 F.3d 1061, 1068 (7th Cir.2005); United States v. Jimenez, 256 F.3d 330, 343 (5th Cir.2001), cert. denied, 534 U.S. 1140, 122 S.Ct. 1090, 151 L.Ed.2d 989 (2002); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997), cert. denied, 523 U.S. 1012, 118 S.Ct. 1203, 140 L.Ed.2d 331 (1998); cf. Waltzer v. Transidyne Gen. Corp., 697 F.2d 130, 134 (6th Cir.1983) () (citation omitted).
It is undisputed that the government did not make a formal offer of proof in this case. The government would have been well advised to make a formal offer of proof, as the district court was left to discern the substance of Drueck's testimony from Ganier's written motion and the parties' arguments the next morning. Rule 103(a) does not require a formal offer of proof, however, and despite the shortcomings in the government's presentation, we conclude that it was adequate to warrant normal appellate review.
During the hearing on Ganier's motion to exclude, the government informed the court that Drueck would testify as to "what he found on the computers." J.A. at 387 (Hr'g Tr. (AUSA Richardson) at 9). The government explained that Drueck had run forensic software on the three computers to generate reports of a series of search terms, including examples of particular names and terms relevant to the case. The district court had before it copies of the reports generated by the forensic software. Defense counsel gave further details, stating that Drueck had run software revealing what searches had been run at particular dates and times. J.A. at 384 (Hr'g Tr. (Thomas Dundon) at 6). As the district court's Opinion and Order excluding the evidence confirms, that court was adequately aware of the substance of the proposed evidence and what it would show. See J.A. at 368-71, 373 (Dist. Ct. Op. & Order at 1-4, 6) (describing the reports and proposed testimony).
Furthermore, because Ganier's motion to exclude was based on an alleged violation of Federal Rule of Criminal Procedure 16(a)(1)(G), Ganier did not argue that the proposed testimony was not admissible under the Federal Rules of Evidence. Thus, the government adequately made the grounds for admissibility known to the court simply by arguing that it should not be excluded for failure to comply with Federal Rule of Criminal Procedure 16(a)(1)(G). Accordingly, the government satisfied the minimum requirements of Federal Rule of Evidence 103(a), and we do not apply the plain-error doctrine in reviewing the district court's order.
"We review the district court's admission or exclusion of evidence for an abuse of discretion." United States v. Perry, 438 F.3d 642, 647 (6th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2045, 164 L.Ed.2d 799 (2006). At the same time, "[i]n reviewing a trial court's evidentiary determinations, this court reviews de novo the court's conclusions of law and reviews for clear error the court's factual determinations that underpin its legal conclusions." United States v. Baker, 458 F.3d 513, 516 (6th Cir.2006) (internal quotation marks omitted). These standards "are not in fact inconsistent, because `it is an abuse of discretion to make errors of law or clear errors of factual determination.'" Id. at 517 (quoting United States v. McDaniel, 398 F.3d 540, 544 (6th Cir.2005)).
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