U.S. v. Johnson, s. 78-1656

Decision Date04 April 1979
Docket NumberNos. 78-1656,78-1696 and 78-1718,s. 78-1656
Parties, 4 Fed. R. Evid. Serv. 663 UNITED STATES of America, Plaintiff-Appellee, v. Lowell F. JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joe S. AGERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. W. Shelley RICHEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

James A. Shiner, Alex A. Gaynes, Gaynes, Lovell & Rockafellow, Ralph E. Seefeldt, Michael M. Neal, Sullivan & Seefeldt, Alex A. Gaynes (argued), William G. Walker (argued), Tucson, Ariz., for defendants-appellants.

Daniel G. Knauss, Asst. U. S. Atty., Tucson, Ariz., Joseph P. Covington, Atty., Dept. of Justice, Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL and CHOY, Circuit Judges, and BONSAL *, District Judge.

CHOY, Circuit Judge:

Johnson, Agers, and Richey appeal from their convictions for mail fraud in violation of 18 U.S.C. § 1341. We reverse and remand.

I. Statement of the Case

On September 8, 1977, a federal grand jury indicted appellants Johnson, Agers, and Richey, and two others, for mail fraud. Each appellant pleaded not guilty. At trial the Government sought to prove that the men had been involved in an elaborate land sale fraud involving Thunderbird Valley corporation, of which appellants were major stockholders, and other corporations controlled by one or more of the appellants. The Government maintained that Thunderbird Valley, through another corporation controlled by one of appellants, assigned spurious mortgages to third parties. It also used the same lots as security on two or more instruments without telling the creditors of other claims against the lots. At the same time, Thunderbird Valley itself paid assignees on some mortgages that were either spurious or upon which the mortgagor had defaulted, in order to encourage confidence in Thunderbird Valley operations. The Government also sought to show other similar fraudulent activities.

A jury found appellants guilty of all 24 counts of mail fraud charged. Each count represented a check mailed to an assignee of a spurious or defaulted mortgage. Each appellant was sentenced to four years in prison and fined $1000 on each count, with the prison sentences to run concurrently and the fines to be consecutive, thus totaling $24,000.

II. Foundation Requirements under Rule 1006
A. Requirement of Admissibility

In the court below appellants maintained that they were unaware of any improprieties. In particular, appellants contended that the 16 instances of double assignment revealed in the Government's case-in-chief were inadvertent. Mindful of this defense, the Assistant United States Attorney noted:

The main thrust of the rebuttal is that these gentlemen indicate that there was perhaps a few inadvertent double assignments. We are also prepared to offer other testimony through Mr. Harbert that there were a great number of such double mortgages and assignments to the point where it was beyond inadvertence.

Later, the Government began to question Mr. Harbert, a postal inspector, about a summary he had made of records seized from the offices of the Thunderbird Valley corporation. This summary purported to establish that Mr. Harbert found 80 double assignments out of 260 files of transactions perused. When this questioning began, defense counsel 1 immediately objected:

MR. GAYNES (Counsel for Richey): Your Honor, I'm going to object to this witness testifying about a box of information he got without showing there was any kind of business records of this corporation.

THE COURT: Yes, I think so.

MR. COVINGTON (Assistant U.S. Attorney): Your Honor, we've had this information available to the defense for some time.

THE COURT: It don't make any difference. There has to be something in evidence from which the lawyers are in a position to cross examine the witness on.

MR. COVINGTON: We're basing this on Rule 1,006 of the Federal Rules of Evidence on summary witnesses.

THE COURT: But it does relate to matters that are not in evidence.

MR. COVINGTON: I think that's the import of the Rule 1,006.

THE COURT: Yes.

The Government then observed that it had sent defense counsel notice of its intent to use summaries. The court ascertained that counsel for each defendant had received that notice. Then the following colloquy took place:

MR. GAYNES: . . . . My objection is based on the fact that the exhibits of what you're making summaries out of, you have to have some kind of foundation as to the trustworthiness of the documents, somehow, that they're business-related or business records and then you can make summaries of properly foundation if you show a proper foundation as to business records. We don't know whether these business records

THE COURT: You had an opportunity to look. That's the problem, though, and evidently you didn't. You didn't care to.

The district court erred in not requiring the proponent of the summary to establish a foundation. It was incorrect to suggest that the opponents had the burden of determining that a foundation was lacking.

The Government invoked Fed.R.Evid. 1006, 2 which provides:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

We hold that under this Rule the proponent of the summary must establish that the underlying materials upon which the summary is based are admissible in evidence.

The purpose of Rule 1006 is to allow the use of summaries when the volume of documents being summarized is so large as to make their use impractical or impossible; summaries may also prove more meaningful to the judge and jury. See Note of Advisory Committee on Proposed Rules, Reprinted in 28 U.S.C.A. Federal Rules of Evidence at 783; S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 694 (2d ed. 1977); 5 J. Weinstein & M. Berger, Weinstein's Evidence P 1006(02) (1975). Such a rationale imports that instead of using a summary, the proponent of the summary could introduce the underlying documents upon which the summary is based. See United States v. Smyth, 556 F.2d 1179, 1184 & n.11 (5th Cir.), Cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977).

Moreover, requiring the proponent to show the admissibility of the underlying materials is necessary to protect the integrity of the Federal Rules. In the instant case, the Government argued that notification of opposing counsel obviated the need to show that the underlying materials fell within an exception to the hearsay rule. We do not believe that Congress intended that counsel could abrogate other restrictions on admissibility like the hearsay rule by the use of summaries; we cannot read Rule 1006 as preempting the other Rules.

Finally, Congress placed Rule 1006 not in the Article of the Federal Rules dealing with exceptions to the hearsay rule, Article VIII, but rather in the Article dealing with "Contents of Writings, Recordings and Photographs," Article X. While the Government argues that this Article X Rule abrogates the hearsay limitations of Article VIII, the Article X provisions more properly deal with the "best evidence" problems arising from the use of materials other than originals. See Fed.R.Evid. 1002. And when Congress intended to provide an exception to the hearsay rule for materials which it also exempted from the best evidence rule in Article X, it did so by a provision in Article VIII. For example, Rule 1005 provides that public records may be proved with other than the original under some circumstances. Rules 803(8), (9), and (10), however, provide the hearsay exception for various types of public records. Similarly, Rule 1007 allows the use of secondary materials to prove the contents of testimony or a written admission of a party. But Rule 801(d)(2) provides that admissions are not subject to the hearsay rule. In claiming that Rule 1006 provides an exception from both the "best evidence" rule for summaries and the hearsay rule for the underlying materials, the Government (and the district court) misapprehended this congressional scheme.

Commentators and other courts have agreed that Rule 1006 requires that the proponent of a summary establish that the underlying documents are admissible in evidence. For example, Judge Weinstein and Professor Berger write:

Before the chart, summary, or calculation may be admitted, it is necessary for the party offering the exhibit to lay a proper foundation for the admission of the original or duplicate materials on which the exhibit is based, or for the parties to stipulate to the admissibility of the materials. Charts, summaries, or calculations are inadmissible as evidence if, for any reason, the original or duplicate materials on which they are based are inadmissible. Thus, if the original materials contain hearsay and fail to qualify as admissible evidence under one of the exceptions to the hearsay rule, the chart, summary, or calculation based on that material is inadmissible.

5 Weinstein on Evidence P 1006(03), at 1006-5 to 1006-6 (footnotes omitted) 3; See 2 Jones on Evidence § 7:30 (Gard rev. 1972); Federal Rules of Evidence Manual 196 (1978 Supp.). 4 Similarly both the Second Circuit and the Fifth Circuit have concluded that Rule 1006 requires that the proponent establish the admissibility of the underlying materials. See Smyth, 556 F.2d at 1184 & n. 11 5; United States v. Conlin, 551 F.2d 534, 538 (2d Cir.), Cert. denied, 434 U.S. 831 98 S.Ct. 114, 54 L.Ed.2d 91 (1977) 6; But cf. Case & Co. v. Board of Trade, 523 F.2d 355, 361 (...

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