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United States v. Hofstetter

United States District Court, E.D. Tennessee

October 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SYLVIA HOFSTETTER, CYNTHIA CLEMONS, and COURTNEY NEWMAN, Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN, UNITED STATES DISTRICT JUDGE.

         Defendants have moved to exclude from evidence any and all DOMEX reports as non-qualifying summaries under Federal Rule of Evidence 1006 [Doc. 581]. Contrary to defendants' argument, summaries of subsets of data are admissible as summaries under Rule 1006. United States v. Bray, 139 F.3d 1104, 1109-10 (6th Cir. 1998); see also United States v. Sawyer, 85 F.3d 713, 740 (1st Cir. 1996). Defendants have also contended the Court should exclude the reports under Federal Rule of Evidence 403 as they risk confusing the issues, misleading the jury, and wasting time [Doc. 645]. Because the DOMEX reports satisfy the Sixth Circuit's Bray factors, Bray, 139 F.3d at 1109-10, governing admissibility of Rule 1006 summaries, and are admissible under Rule 403, defendants' motion in limine [Doc. 581] is DENIED.

         I. Background

         The Federal Bureau of Investigation seized 6, 300 patient files from pain clinics associated with defendants and located in and around Knoxville, Tennessee, on March 10, 2015 [Doc. 477 p. 3]. The Document and Media Exploitation Branch of the Drug Enforcement Administration's National Drug Intelligence Center (“DOMEX”) quantified and summarized data from 700 of these patient files [Doc. 477 p. 7-8]. The government selected 444 of those files based on criteria such as the location of the patient's death, claimed disability, indictment in a related case, status as an undercover agent, or a history of being discharged from one clinic and sent to an associated clinic [Id. at 8].[1] DOMEX selected the remaining 256 patient files by using a computerized random number generator [Id.]. The government did not ask DOMEX to perform an expert medical analysis of the files or to extrapolate data to the remaining 5, 400 files but only to summarize specific data points [Id.]. The following summaries constitute the DOMEX reports: Summary of Weights by Drug, Summary of Drug Weights by Provider, Location and Demographics of Patients, Provider Summary Tables, Payments and Referrals, and Drugs Prescribed by Provider [Id.]. The first two (2) of these six (6) DOMEX summaries did not rely on the 700 patient files [Doc. 628 p. 2 n.3] and are not the subject of defendants' motion in limine.[2] Consequently, for the purpose of this order, the “DOMEX reports” will refer only to the summaries of data from the 700 patient files.

         According to defendants, the DOMEX summaries' reliance on only 700 of the 6, 300 files in the government's possession renders them inadmissible because summaries of a subset of data are inadmissible under Federal Rule of Evidence 1006 and the Sixth Circuit's Bray factors [Doc. 581]. Defendants also contend in the supplement to their original motion that the DOMEX reports are inadmissible under Rule 403, and they move to exclude the reports as misleading and a waste of time [Doc. 645]. The government opposes defendants' motion in its original response and post-hearing brief [Docs. 628, 647].

         II. Legal Standard

         Federal Rule of Evidence 1006 governs the admissibility of summaries. The rule 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 Sixth Circuit in United States v. Bray, 139 F.3d 1104, 1109-10 (6th Cir. 1998), interpreted Rule 1006 to impose six preconditions to admitting a summary chart: (1) the documents must be so voluminous that they cannot conveniently be examined in court by the factfinder, but it is not necessary that the documents be so voluminous as to be literally impossible to examine; (2) the summary's proponent must have made the documents available for examination or copying by other parties at a reasonable time and place; (3) the summary's proponent must establish that the underlying documents are admissible, such that a summary based on documents that are inadmissible for irrelevancy, unfair prejudice, lack of authenticity, or some other reason would also be inadmissible; (4) the summary must be accurate and non-prejudicial, meaning that it summarizes the underlying data accurately, correctly, and in a nonmisleading way and does not contain conclusions or inferences; and (5) the summary must be properly introduced, meaning the proponent should present the testimony of the witness who supervised its preparation.[3] A summary chart admitted under Rule 1006, not the underlying documents, represents “evidence to be considered by the factfinder.” Id. at 1112. A court's discretion in admitting summaries under Rule 1006 “will be upheld absent an abuse of discretion.” Id. at 1109 (citation omitted).

         A Rule 1006 summary must also be admissible under Federal Rule of Evidence 403.[4] Rule 403 permits a court to exclude relevant evidence if its probative value is “substantially outweighed” by certain dangers, including unfair prejudice, confusing the issues, and misleading the jury. “The test is strongly weighted toward admission.” United States v. Asher, 910 F.3d 854, 860 (6th Cir. 2018). District courts enjoy “broad discretion” in performing the Rule 403 balancing. Id. (citation omitted).

         III. Analysis

         The DOMEX summaries are admissible under both Rule 1006 and Rule 403. The summaries satisfy the Bray factors, and their probative value is not substantially outweighed by the concerns identified in Rule 403.

         A. Admissibility under Rule 1006 and the Bray factors

         Defendants do not contest that the DOMEX reports satisfy the first, second, and fifth Bray factors, and the reports do appear to fulfill these requirements. First, the 700 patient files underlying the DOMEX reports are so voluminous that they cannot conveniently be examined in court by the factfinder.[5] Although it might be literally possible for the jury to examine each of the 700 files, including the prescriptions, personal data, test screens, and previous medical records contained therein, the inefficiency of such a procedure would present a significant inconvenience. Second, the government has made the patient files and the DOMEX reports available to defense counsel [Doc. 628 p. 8], and defendants have not objected that the government failed to do so at a reasonable time and place [Doc. 581]. As to the fifth factor, the government states that it plans to introduce the DOMEX reports through the testimony of Mr. Jon West and/or Mr. Logan Lake, both ...


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