Professional Documents
Culture Documents
The United States offers the following points and authorities to assist the Court in
what the Government believes will be legal issues during the trial of this case.
Title 18, United States Code, Section 1343, provides in pertinent part, “Whoever,
having devised or intending to devise any scheme or artifice to defraud, or for obtaining
in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the
purpose of executing such scheme or artifice, shall be fined under this title or imprisoned
“In order to sustain a conviction for aiding and abetting wire fraud, the government
must prove [the defendant] willfully assisted the perpetrators of the wire fraud crimes, and
that he did so with the requisite intent to defraud. United States v. Rivera, 295 F.3d 461,
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466 (5th Cir. 2002).” United States v. Dazey, 403 F.3d 1147, 1163-64 (10th Cir. 2005).
1. Essential Elements
representations or promises;
representations, or promises that were material. Tenth Circuit Pattern Jury Instructions
2.57; United States v. Lake, 472 F.3d 1247, 1255 (10th Cir. 2007); Bancoklahoma
Mortgage Corp. v. Capital Title Co., 194 F.3d 1089, 1102 (10th Cir. 1999); United States
v. Smith, 133 F.3d 737, 742-43 (10th Cir. 1997); United States v. Galbraith, 20 F.3d 1054,
1056 (10th Cir. 1994); United States v. Drake, 932 F.2d 861, 863 (10th Cir. 1991).
2. Scheme to Defraud
scheme to deprive another of money, property or the intangible right of honest services.”
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Tenth Circuit law differentiates between a scheme to defraud that focuses on the
United States v. Cochran, 109 F.3d 660, 664 (10th Cir. 1997).
promises’ means an intent to deceive or cheat someone.” Tenth Circuit Pattern Jury
Instructions 2.57.
Because it is difficult to prove intent to defraud from direct evidence, a jury may
therefrom. Thus, “[i]ntent may be inferred from evidence that the defendant attempted to
profited or converted money to his own use.” Prows, 118 F.3d at 692 (quotation omitted).
Further, “[e]vidence of the schemer’s indifference to the truth of statements can amount
knowledge that the use of the wire facilities will follow in the ordinary course of business
or where such use can reasonably be foreseen.” Tenth Circuit Pattern Jury Instructions
2.57.
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constitutes a half truth, or effectively omits or conceals a material fact, provided it is made
Materiality must be decided by the jury in all mail fraud, wire fraud, and bank fraud
cases. Neder, 527 U.S. at 25. To establish a violation of the statute, the government need
not prove that the defendant made direct misrepresentations to the victim. See Kennedy,
pecuniary loss, Deters, 184 F.3d at 1258, or that the scheme to defraud was successful,
In the case at bar, the United States reasonably believes that the evidence will
establish that the defendants knew or were deliberately ignorant of the fact that many of
the items they were selling via wire transmissions on the e-Bay web site during the period
of the conspiracy were stolen. Rather then refuse to purchase the items or require receipts
to prove that the new items, most still in their original boxes, had come into the possession
of the sellers legally, the defendants chose to purchase them for far less than retail value
and to sell them on e-Bay without revealing to the purchasers that the items were stolen
refused to surrender items to law enforcement agents who came to them looking for stolen
property by falsely representing to the officers that they had not had any contact with the
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thief or had already sold the stolen property. This scheme to acquire property that lawfully
paying them the fair market value of the property and then selling the stolen items to
unsuspecting purchasers constituted a scheme to defraud the retailers and the ultimate
purchasers who risked losing the stolen items if the rightful owners located and demanded
Additionally, because the defendants sold the stolen items on the e-Bay internet
web site, they defrauded that organization by violating the policies and procedures of that
business by knowingly selling stolen items. Prominently displayed on the e-Bay web site
is a policy entitled “Stolen Property and Property with Removed Serial Numbers.” That
eBay strictly forbids the sale of stolen property, which violates state, federal
and international law....
***
Some Examples
“Stolen property and items with missing or altered serial numbers includes:
eBay urges its sellers and buyers to comply with all governmental laws and
regulations. Since the sale of stolen property is prohibited by law, or may
cause harm to eBay or its members, sellers are not permitted to list them on
eBay. State and federal law prohibit the knowing sale of stolen property, and
a majority of states in the U.S. prohibit the sale of consumer goods with
missing or altered serial numbers, therefore sellers are not permitted to list
such items on eBay.
Clearly, the defendants’ conduct was designed to defraud eBay by failing to disclose to
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eBay or the purchasers of the stolen property the true nature of the items they advertised
The government’s evidence will establish that the defendants engaged in a scheme
and artifice to defraud retailers, persons who purchased the property from them and the
eBay business organization by purchasing and selling stolen property without disclosing
the true nature and source of that property, thereby establishing the crime of wire fraud.
November 29, 2005, the defendant, Carrie Neighbors purchased items from an undercover
Lawrence, Kansas, Police Officer, Mickey Rantz. Each of those meetings was recorded,
Lawrence, Kansas, Police Officer, Michael McAtee, on the telephone about his Yellow
House business operations in Topeka, Kansas. On March 3, 2006, the same undercover
officer met with Guy Neighbors in person ostensibly to discuss the purchase of that
On June 14, June 16 and June 23, 2006, the defendant, Carrie Neighbors,
purchased items from Joey Cadenhead and those transactions were voluntarily recorded
by Cadenhead. On June 20, 2006, a Lawrence, Kansas Police Officer contacted the
description who had been stealing property from local retailers. The defendant denied any
knowledge of the individual but was recorded on June 23rd, telling Cadenhead about the
contact with the police department and making excuses for why she did not disclose her
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previous contacts with Cadenhead to the officer during the June 20th contact with the
officer. After her contact with the police officer which caused her to believe that
Cadenhead was being sought by law enforcement authorities for the theft of property, the
defendant purchased other items from him on June 23rd. This evidence will be offered to
establish the defendant’s willingness to purchase stolen property and to hide the identity
of her suppliers from members of the law enforcement community, thereby establishing her
The United States intends to play each of these recorded statements for the jury
during the trial of this case, each of which is admissible under Fed.R.Evid. 801(d)(2) as
statements of a party opponent. The government also intends to inquire of the witnesses
what the witness heard the defendant say during each conversation.
are admissible when seven foundational requirements have been met. United States v.
McMillin, 508 F.2d 101, 104 (8th Cir.), cert. denied, 421 U.S. 916 (1975). These are: (1)
the recording device was capable of taping the conversations; (2) the operator was
competent to operate the device; (3) the recording is authentic and correct; (4) no changes,
additions or deletions have been made in the recording; (5) the recording is shown to have
been preserved; (6) speakers are identified; and (7) the elicited conversation was made
without inducement. United States v. Green, 175 F.3d 822, 830, n. 3 (10th Cir. 1999); see
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hearing the voice at any other time under circumstances connecting it with the alleged
speaker.”; see also United States v. Kandiel, 865 F.2d 967, 973-74 (8th Cir. 1989). The
identity of all the speakers is not required; tentative and circumstantial identifications of
some of the speakers is sufficient and can be based on a witness's personal familiarity with
the voices of the identified speakers. United States v. O'Connell, 841 F.2d at 1421.
District courts are allowed “wide latitude in determining if a proponent of tape recordings
had laid an adequate foundation from which the jury reasonably could have concluded that
the recordings were authentic and, therefore, properly admitted.” United States v. Branch,
970 F.2d 1368, 1372 (4th Cir. 1992) (“The jury ultimately resolves whether evidence
Consent “is not necessarily involuntary just because that individual’s [the cooperator]
United States v. Kelly, 708 F.2d 121, 125 (3d Cir. 1983).
“It is well settled in this circuit that the admissibility of tape recordings that are
partially inaudible lies within the sound discretion of the trial court. United States v.
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The trial judge can find a proper chain of custody and admit
evidence if “there is a reasonable probability that the evidence
has not been altered in any material respect.” United States
v Jackson, 649 F.2d 967, 973 (3d Cir. 1970). To show a lack
of material alteration, the Government only needs to show it
took reasonable steps to prevent tampering, it need not
exclude all possibilities of tampering. United States v.
Santiago, 534 F.2d 768 (7th Cir. 1976)
At trial, the United States will have the original audio tapes available but intends to
offer accurate reproductions of the conversations recorded on separate tapes, six for
conversations between Carrie Neighbors and Officer Mickey Rantz, two for conversations
between Guy Neighbors and and three for conversations between Carrie Neighbors and
Joey Cadenhead. These exhibits are admissible under Fed. R. Evid. 1001(4) as duplicate
originals when the United States establishes the foundation for the admissibility of the
original recordings and the accuracy of the duplicate recordings. See United States v.
Wagoner, 713 F.2d 1371, 1377 (8th Cir. 1983) (records shown to be accurate
reproductions of originals are admissible to same extent as the originals); see also United
States v. Devous, 764 F.2d at 1353. (“Once the proper foundation is laid, ... the tapes [are]
defendant’s] post hoc and factually unsupported allegation that the original cassette had
time of trial, the tape recordings of the conversations between either of them and the
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defendant, Carrie Neighbors will still be admissible because the defendant’s statements
Fed.R.Evid., and the government will not offer the statements of Officer Rantz, Det.
McAtee or Joey Cadenhead for the truth of the matters asserted but to “provide context for
[the defendant’s] end of the conversation.” United States v. Williams, 608 F2d 1102, 1108
a witness who was unavailable at the time of trial was affirmed in United States v. Murray,
618 F.2d 892, 900 (2d Cir. 1980). In the Murray case, a conversation had been tape
recorded between a person cooperating with the Drug Enforcement Agency, James Parrot,
and the defendant, Paul Leahey, but the cooperator was unavailable for trial. On appeal
from his conviction, the defendant claimed that his Sixth Amendment right to confrontation
had been abridged by the admission into evidence of the tape recording. Rejecting that
United States v. Murray, supra, 618 F. 2d at 900; see also United States v. Cheramie, 51
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F.3d, 538, 540 (5th Cir. 1995) (Trial court’s reliance on holding in Murray.)
for non-hearsay purposes does not raise Confrontation Clause concerns. See Crawford
v. Washington, 541 U.S. 36, 60 n. 9, 124 S. Ct. 1354, 158 L.Ed.2d 77 (2004) (“The
[Confrontation] Clause ... does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.”); see also Tennessee v. Street, 417
U.S. 409, 414, 105 S. Ct. 2078, 85 L.Ed. 2d 425 (1985). “Testimonial statements are
admissible without prior cross-examination if they are not offered for their truth.” United
States v. Lore, 430 F.3d 190, 209 (3d. Cir. 2005). In this case, should one of the law
enforcement agents or the cooperator be unavailable, the government will not offer any of
their statements for the truth of the matters asserted. Rather, the statements will be
offered to give meaning to and to put into proper context the admissions of the party
Testimony from a law enforcement officer, without the testimony of the confidential
informant establishing that the tape recording was made voluntarily, is sufficient to
establish that prerequisite for purposes of admissibility. See United States v. Johnson
2005 WL 488371 (D.De,), United States v. Perez, 1996 WL 4080 (E.D. Pa.)
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United States v. Tirado-Triado, 563 F.3d 117, 123 (5th Cir. 2009) (emphasis in the original).
“Crawford did not change the definition of “unavailability” for Confrontation Clause
purposes; pre- Crawford cases on this point remain good law.” Id. at 123, n. 3.
As stated above, admissions of a party opponent are exceptions to the rule against
hearsay and are admissible under Fed.R.Evid. 801(d)(2). In addition to the playing of the
tape recordings to prove the contents of the each recording, the government will elicit
testimony from law enforcement officers who either participated in the conversations or
conversations that are not clearly audible. Because the testimony of those witnesses will
be offered to prove the content of the conversations rather than the content of the tapes,
In United States v. Howard, 953 F.2d 6120 (11th Cir. 1992), the defendant argued
on appeal that one of the law enforcement agents should not have been permitted to testify
about inaudible portions of recorded statements made by the defendant which the agent
overheard. The trial court admitted the monitoring agent, over objection, to testify as to the
contents of a partially audible taped conversation with the defendant. The Eleventh Circuit
Id. at 612; see also United Sates v. Fagan, 821 F.2d 1002, 1008 n. 1 (5th Cir. 1987); United
States v. Rose, 590 F.2d 232, 237 (7th Cir. 1978); United States v. Gonzales-Benitez, 537
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United States v. Ortiz 966 F.2d 707, 713 (1st Cir. 1992). Moreover,
United States v. Knohl, 379 F.2d 427, 440 (2d Cir. 1967)
Because only short sections of the recorded conversations are inaudible, the cds
containing the conversations and the transcripts are admissible once the government lays
the proper foundations for each1. Thereafter, the government is entitled to present both
the defendants’ recorded conversations and the testimony of the monitoring agent and of
the agents and the witness who participated in the conversations to clarify any inaudible
1
“The admission of transcripts to assist the trier of fact ... lies within the
discretion of the trial court.” United States v. Devous, 764 F.2d 1349, 1354 (10th Cir.
1985). Further, a jury may examine transcripts of tape recordings if the trial court
instructs the jury that the tapes and not the transcripts are the evidence and that the
transcripts are provided only to assist their understanding of the tapes. See United
States v. Davis, 929 F.2d 554, 559 (10th Cir. 1991).
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conversations between the defendants and cooperating witnesses and law enforcement
officers that have been synchronized meaning that video recordings of meetings between
Carrie Neighbors and the witnesses have been enhanced by the addition of the separately
but simultaneously recorded audio tapes of the conversation to make one composite
exhibit containing both audio and video evidence of the encounters. The parties to the
conversations and the technician who “married” the audio and video tapes to make a single
exhibit will testify that the synchronized evidence is a fair and accurate record of the
conversations between them and the defendant on each occasion. Finally, a transcript of
each conversation has been prepared and has been reviewed by the witness for accuracy
and superimposed on the exhibit to aid the jury in understanding what was being discussed
admissible once the government establishes the accuracy of the exhibits. See United
States v. Brown, 2008 W.L. 510126 *5 (M.D. Pa.(2008)) (Exhibits consisting of digitized
synchronized video tapes and enhanced audio tapes accompanied by transcripts properly
admitted at trial); United States v. Richman, 600 F.2d 286, 295 (1st Cir. 1979) (Admission
accompany the playing of tapes so long as court makes it clear that the tapes, not the
Among the instructions submitted by the United States is Tenth Circuit Jury
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Instruction No. 1.37, Knowingly -Deliberate Ignorance.2 The United States respectfully
submits that this instruction should be among those given to the jury at the close of the
This circuit has adopted an instruction which provides that the element of knowledge
may be shown by deliberate ignorance where “the Government presents evidence that the
defendant purposely contrived to avoid learning all of the facts in order to have a defense
to the event of prosecution.” United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th
Cir. 2000) (internal quotation marks omitted); see also, United States v. Jewell, 532 F.2d
697 (9th Cir.) (deliberate failure to investigate suspicious circumstances imputes guilty
knowledge);
The district court need not insist upon direct evidence of conscious
avoidance of a fact before tendering a deliberate ignorance instruction. To
establish a defendant’s “deliberate ignorance,” the Government is entitled
to rely on circumstantial evidence and the benefit of the favorable inferences
to be drawn therefrom.... The purpose of the instruction is to alert the jury
that the act of avoidance could be motivated by sufficient guilty knowledge
to satisfy the knowing element of the crime.
United States v. Delreal-Odones, 213 F.3d at 1268-69; see also United States v.
Manriquez Arbizo, 833 F.2d 244, 248 (10th Cir. 1987). “A deliberate indifference instruction
2
In its entirety, the government’s proposed instruction would read:
When the word “knowingly” is used in these instructions, it
means that the act was done voluntarily and intentionally,
and not because of mistake or accident. Although
knowledge on the part of the defendant cannot be
established merely by demonstrating that the defendant was
negligent, careless or foolish, knowledge can be inferred if
the defendant deliberately blinded himself to the existence of
a fact. Knowledge can be inferred if the defendant was
aware of a high probability of the existence of the fact that
they were buying stolen items for resale on eBay, unless the
defendant did not actually believe that the items were stolen.
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is used to inform the jury that a defendant’s actions, or failures to act, combined with other
circumstances may suffice to prove that a defendant had actual knowledge of a fact.”
United States v. Falcon, 477 F.3d 573, 578-79 (8th Cir. 2007) (citation omitted). The
deliberate ignorance instruction “may be given when the evidence points to deliberate
ignorance and conscious avoidance of actual knowledge” United States v. Glick, 710 F.2d
points solely to direct knowledge, where, as here, the evidence supports both actual
knowledge and deliberate ignorance, the instruction is properly given.” United States v.
Ochoa-Fabian, 935 F.2d 1139, 1142 (10th Cir 1991) (emphasis added) (citing United States
v. Manriquez Arbizo, 833 F.2d 244, 249 (10th Cir. 1987); see also United States v. Parker,
364 F.3d 934, 946 (8th Cir. 2004) (no error submitting deliberate ignorance instruction
where there was evidence of both actual and constructive knowledge). “The evidence is
sufficient to support the instruction, if a reasonable jury could find beyond a reasonable
doubt that the defendant had either actual knowledge of the illegal activity or deliberately
failed to inquire about it before taking action to support it.” United States v. Florez, 368
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In United States v. Parker, 364 F.3d. 934, (8th Cir. 2004) the defendant argued on
appeal that the district court erred when it submitted a deliberate ignorance instruction to
the jury because the evidence showed actual, not constructive knowledge of the falsity of
certain sales and income projections made to potential investors in the defendant’s after-
market auto parts franchise business. At trial, there was direct evidence of the defendant’s
actual knowledge that the income projections in question were false which included
testimony that the defendant admitted to the special agent in an interview conducted during
the investigation that the most recent projections showed a decline in investors’ income
and his acknowledgment that the projections should have been updated with the new
information.
At the same time, however, there was also evidence that Parker remained
willfully blind to the inaccuracy of the data by not conducting any surveys
after the 1995 survey showed a decline in income for the second consecutive
year. Therefore, because the evidence viewed in the light most favorable to
the government showed that Parker intentionally remained ignorant of the
true facts that had actual knowledge, we will not disturb the district court’s
decision to submit the deliberate ignorance instruction to the jury.
Id. at 947.
may be given “when the Government presents evidence that the defendant
purposely contrived to avoid learning all of the facts in order to have a defense in the
event of prosecution. United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th
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Cir. 2000) (internal quotation marks omitted). If given, a similar deliberate ignorance
see also United States v. Glick, 710 F.2d 639, 643 (10th Cir. 1983). “The purpose
of the instruction is to alert the jury that the act of avoidance could be motivated by
Delreal-Ordones, 213 F.3d at 1268-69 (quotation marks and brackets omitted). “The
district court need not insist upon direct evidence of conscious avoidance of a fact
and the benefit of the favorable inferences to be drawn therefrom.” Id. at 1268
(citation omitted).
In the instant case, it is anticipated that the defendants will claim ignorance of
the fact that many of the items they purchased for resale were stolen. The United States
intends to present direct and circumstantial evidence of the defendants’ actual knowledge
of the fact that many of the items purchased by the Yellow House stores were stolen. For
example, witnesses will testify that on more than one occasion, Carrie Neighbors was told
that the items a seller presented for sale were stolen. Additionally, the government will
offer circumstantial evidence of guilty knowledge which will include, inter alia, that stickers
and tags which contained information about the retail establishments from where the items
were stolen were removed from the boxes containing the stolen items and discarded in the
defendants’ trash at their residence, raising the reasonable inference that the defendants
knew that the items had been stolen and wanted to remove any evidence that would allow
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a purchaser or law enforcement authorities to trace the item back to the victim retailer.
The United States will also offer direct and circumstantial evidence of the
defendants’ deliberate attempts to remain ignorant of the nature of the stolen property. For
example, the evidence will establish that when an undercover officer told the defendant,
Carrie Neighbors, that the items he brought to the Yellow House for sale were stolen, she
told him not to say that because if she knew that fact she would not be able to purchase
the property. There will also be circumstantial evidence of deliberate ignorance in the form
of business records and summaries that will establish that the nature of the items
purchased from several of the Yellow House customers and the frequency of those
purchases would have put a reasonable person on notice that additional inquiry should
have been made to ascertain how the sellers came into possession of the items in the
quantities reflected in the Yellow House sales records with the frequency reflected in those
records. Other circumstantial evidence will also establish that on another occasion, shortly
after police had been into the Yellow House store in Lawrence inquiring about a person
that had allegedly been stealing items from a local retailer, Carrie Neighbors told the thief
about the visit from the police and laughed off the information provided by the law
enforcement officer before purchasing another new item from that individual.
The United States respectfully submits that direct and circumstantial evidence at trial
will establish both actual knowledge and deliberate ignorance or conscious avoidance by
the defendants of the fact that many of the items purchased by Yellow House for resale
on e-Bay had been stolen. Under those circumstance, the deliberate ignorance instruction
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The government will make use of summary evidence during the trial in this case.
The evidence should be received for the jury's consideration. The government obtained
and executed search warrants to search the data and information contained in each of the
defendant’s cellular telephones. The government has prepared summary charts reflecting
the downloaded data which will aid the jury in understanding the telephone activity which
took place prior to the arrest of the defendants. The summary evidence in this case is
part analysis. 1) The underlying evidence must be admissible, although it need not
reflect the underlying evidence; 4) the summary evidence and the underlying evidence
should be made available for inspection prior to trial; and 5), the preparer of the summary
evidence should be available for examination by the party opponent at trial, if necessary.
evidence alone is received into evidence; the underlying evidence need not be offered as
evidence or reviewed by the jury. The only requirement is that the underlying evidence be
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admissible under some evidentiary theory. United States v. Osum, 943 F.2d 1394, 1405
under FRE 803(6) and medical records under FRE 803(4), are admissible without
admission of the underlying documents); Martin v. Funtime, Inc., 963 F.2d 110, 116 (6th
Cir. 1992) (summaries of personnel records, independently admissible under FRE 803(6),
Strissell, 920 F.2d 1162-63 (4th Cir. 1990) (plain language of FRE 1006 makes it clear that
admission of summaries).
The trial court may determine at its discretion whether underlying evidence, a
summary of which is being offered by a party, would be too voluminous for convenient in-
court review by a jury. United States v. Williams, 952 F.2d 1504, 1519 (6th Cir. 1991).
The summarized documents may be as limited as those contained in insurance files from
three automobile accidents (Osum, 943 F.2d at 1405), the telephone records relating to
just a few drug transactions (United States v. Possick, 849 F.2d 332, 339 (8th Cir. 1988)),
or a summary of limited but technical materials not readily understandable by the lay
reader (United States v. Campbell, 845 F.2d 1374, 1381 (6th Cir. 1988)). The important
analysis is whether the summary evidence would assist the jury with better understanding
the evidence without an undue waste of time and judicial resources. United States v.
Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983); United States v. Shirley, 884 F.2d 1130 (9th
Cir. 1989); United States v. Evans, 572 F.2d 455 (5th Cir. 1978).
It goes without saying that the summary evidence must accurately reflect the
underlying evidence (United States v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984) (court
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excluded summary evidence containing argumentative references until edited to omit the
inclusion of the infused argument)), although some assumptions are permissible in the
summaries if they are based on the evidence. (United States v. Norton, 867 F.2d 1354,
1362-63 (11th Cir. 1989)). The more important factor is that the opposing party have an
opportunity to examine the summary and underlying evidence in advance of trial, and then
have an opportunity to examine the preparer of the summary at trial, if necessary. United
States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988); United States v. Foley, 598 F.2d
1323, 1337-38 (4th Cir. 1979); Bertoli, 854 F. Supp. at 1051. In this way, the method of
preparing the summary can be tested on cross-examination so the jury can evaluate the
summary evidence as it would any other evidence. The government’s summary evidence
has been made available to the defendant’s counsel for his inspection prior to the start of
Summary evidence received by the court is to be treated by the jury as any other
evidence admitted during trial. If the summary evidence has been received under FRE
1006 in lieu of the underlying evidence, no special instruction need be given to the jury
relative to the summary evidence. Martin, 963 F.2d at 115-116; Osum, 943 F.2d at 1405
n.9; Possick, 849 F.2d at 339. On the other hand, it is within the court's sound discretion
to provide the jury with a special instruction relating to the summary evidence.3 United
States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir. 1986). Nevertheless, the summary
3
One proposed instruction for such circumstances: "The government has
presented exhibits in the form of charts and summaries. I decided to admit these charts
and summaries in place of the underlying documents that they represent in order to
save time and avoid unnecessary inconvenience. You should consider these charts
and summaries as you would any other evidence.” Sand, Siffert, Loughlin and Reiss,
Modern Federal Jury Instructions.
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evidence, as any evidence, may be taken by the jury to the jury room for examination
during deliberations. United States v. Pinto, 850 F.2d 927, 935 (2d Cir. 1988).
Based upon the foregoing, it is clear that the government's summary evidence
should be admitted into evidence in addition to the underlying evidence because it will aid
The government will present transcribed video and audio recordings of various
undercover sales transactions between the defendant and a Lawrence Kansas Police
Officer and sound recordings of transactions between the defendant and a confidential
between the defendant and various law enforcement officers. These recordings have been
formatted on the computer to display the speakers and display English text simultaneous
The computer format will aid the jury, the Court and counsel by providing an efficient
presentation of evidence. Counsel for defense has been provided with copies of the
“The admission of transcripts to assist the trier of fact lies within the discretion of the
trial court.” United States v. Gomez, 67 F.3d 1515, 1526 (10th Cir. 1995). In United
States v. Gonzalez-Balderas, the jury was advised that when they listened to the tapes,
that if the speakers voices changed and the transcript did not so reflect, the jury should
disregard the transcript. 11 F.3d 1218, 1224 (5th Cir. 1994). With the proper foundation
and instructions on the use the jury may make of the recordings and the transcripts, the
United States submits that the dvd versions of the defendant’s statements are admissible.
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The government has learned that April 2, 1998, in Pulaski County, Arkansas,
Municipal Court, one of its witnesses was convicted of the misdemeanor of failure to
appear in case No. 19982470 and was sentenced to a sentence of ten (10) days in jail.
On April 14, 2009, the government disclosed the existence of that conviction to counsel for
the defendants and informed them that it was the government’s contention that this
conviction was not admissible impeachment evidence should the witness testify because
the crime of conviction was not punishable by a term of imprisonment of more than one
year (see Federal Rule of Evidence [Fed.R.Evid.] 609(a)(1)), did not involve an act of
dishonesty or false statement by the witness (see Fed.R.Evid 609(a)(2)) and because a
period of more than ten (10) years has elapsed since the date of conviction and the date
During the investigation of this case, many of the witnesses were interviewed and
those interviews were recorded. Should any of the witnesses become unavailable because
he or she does not now recall the details disclosed in the recorded interview, the United
States will seek to play for the jury the dvd recording of the witness’ interview under the
provisions of Rule 803(5) as a recorded recollection. That rule provides in pertinent part:
Id.
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Rule 803(5) of the F.R.E. creates an exception to the hearsay rule and is
based on the belief that as an event is distanced in the mind, accuracy of the
memory may decrease or be lost entirely. The supreme Court conveyed in
Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), that
to be admissible under the Confrontation Clause, hearsay evidence used to
convict a defendant must possess indicia of reliability by virtue of its inherent
trustworthiness at the time the statements were made and not by reference
to other evidence at trial. Id. at 822.The guarantee of trustworthiness can be
found in the reliability inherent in a record made while events were still fresh
in mind and accurately reflecting them. See, Hall v. State, 223 Md. 158, 162
A.2d 751 (1960). To utilize, a party must: (1) provide a memorandum or
record; (2) concerning a matter about which a witness once had knowledge;
(3) but now has insufficient recollection to enable the witness to testify fully
and accurately; (4) shown to have been made or adopted by the witness; (5)
when the matter was fresh in the witness’s memory; (6) and to reflect that
knowledge correctly. Rule 803(5) F.R.E. If admitted, the memorandum or
record may be read into evidence but may not itself be received as an exhibit
unless offered by an adverse party. Id.
In this case, it is anticipated that one of the government’s witnesses may testify that
she has no present recollection of stealing items from various businesses in the Lawrence
area and selling them to Carrie Neighbors during the period of the conspiracy. She gave
a recorded statement to a law enforcement officer in January, 2005, during the time the
conspiracy and wire fraud scheme was occurring about the events she now claims she
does not recall. If she persists in her claim of lack of recall, the United States will seek to
play the dvd recording of her prior statement, both to impeach her credibility and as a past
applicable in a situation ... where the witness on the stand made a record concerning a
matter about which the witness once had knowledge, but at the time of testifying is unable
to recall. Id. at *4. Under these circumstances, the government respectfully submits that
if the witness testifies in a manner inconsistent with the statements she made in January,
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2005, the dvd recording of that statement is admissible under Rule 803(5) and as
Respectfully submitted,
Barry R. Grissom
United States Attorney
Certificate of Service
I hereby certify that on the 9th day of September, the foregoing was electronically
filed with the clerk of the court by using the CM/ECF system which will send a notice of
electronic filing to the following:
John Duma
303 E. Poplar
Olathe, KS 66061
Attorney for Defendant Carrie Marie Neighbors
I further certify that on this date the foregoing document and the notice of electronic
filing were mailed by first-class mail to the following non-CM/ECF participants:
None
s/Marietta Parker
Assistant United States Attorney
26