Opinion
Case No. 02-80813.
July 9, 2003.
ORDER GRANTING IN PART AND DEFERRING IN PART RULING ON DEFENDANTS' MOTION IN LIMINE
At a hearing held on July 8, 2003, this matter came before the Court on Defendants' motion in limine regarding several evidentiary issues. Being fully advised in the premises, having read the pleadings, and for the reasons stated on the record and below, this Court GRANTS IN PART AND DEFERS IN PART its ruling on Defendants' motion in limine.
I. Facts
In March of 1999, as part of a federal investigation of Mr. Eddie Martin's suspected involvement in a large-scale gambling operation, the government obtained the authority to electronically eavesdrop on Mr. Martin's conversations. Information gleaned from the wiretapped conversations along with other information learned during the investigation allowed government agents to obtain a search warrant for Mr. Martin's home in Detroit.
On April 28, 1999, the agents executed the warrant. During the search of Mr. Martin's residence, the agents seized a number of items, including a loaded .38 pistol, a large amount of money, and documents and tally sheets relating to Mr. Martin's numbers operation. Included in the seized documents were various receipts, canceled checks, and photographs, as well as handwritten notes and figures compiled by Mr. Martin. Some of the receipts, notes, and figures appeared to relate to prominent basketball players, many of whom had played for the University of Michigan. All of these items were taken into evidence by the agents and kept in government custody.
A grand jury then began an examination of Mr. Martin's illegal activities. As part of the grand jury's investigation, former Michigan basketball players, including Defendant Mayce Edward Christopher Webber III ("Chris Webber"), were subpoenaed to testify. On June 14, 2000, Mayce Webber, Jr., Chris Webber's father, testified before the grand jury. Chris Webber appeared to testify before the grand jury on August 2, 2000, accompanied by his agent, Fallasha Erwin, and his aunt, Charlene Johnson.
On September 9, 2002, the grand jury issued an indictment against Chris Webber, Mayce Webber, Jr., and Charlene Johnson, charging each with conspiracy to obstruct justice and making false declarations before a grand jury. On January 17, 2003, a First Superceding Indictment was issued. On May 30, 2003, the government dismissed the indictment against Charlene Johnson, and on June 12, 2003 the government dismissed Count One (conspiracy to obstruct justice) against both remaining Defendants.
On February 15, 2003, Eddie Martin died. Eddie Martin never testified before the grand jury nor gave any other sworn testimony regarding any of the events that are relevant to this case.
II. Analysis
A. The $280,000 Figure
Defendants move to exclude reference to the $280,000 figure, presumably the value of Eddie Martin's money and time he "loaned" to Defendants. The only evidence of $280,000 being "loaned" to Chris Webber consists of a few handwritten notes found in Martin's home and a recorded conversation between Martin and an unidentified person. Defendants argue that because both pieces of evidence are inadmissible, the government should be prohibited from mentioning the $280,000 figure. The Court examines the admissibility of the handwritten notes first and then the admissibility of the taped conversations.
1. Handwritten Notes
The government acknowledges that Martin's handwritten notes are hearsay and thus inadmissible unless they qualify under an exception to the hearsay rule. Accordingly, the government seeks to introduce Martin's handwritten notes, (Pl.'s Resp., Ex. A), as business records. For a record to be admitted pursuant to Fed.R.Evid. 803(6), the government must show that it was (1) made in the course of a regularly conducted business activity; (2) kept in the regular course of business; (3) a result of a "regular practice of the business" to create documents; and (4) made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. United States v. Laster, 258 F.3d 525 (6th Cir. 2001), cert. denied, 534 U.S. 1151 (2002). An unlawful activity can be considered a "business" for the purpose of this rule. United States v. Cooper, 868 F.2d 1505,1514 (6th Cir. 1989); United States v. Foster, 711 F.2d 871, 882 (9th Cir. 1983). The compiler of the records need not be the foundation witness, but a person familiar with the record keeping system must testify. United States v. Weinstock, 153 F.3d 272 (6th Cir. 1998). In United States v. Dakota, 197 F.3d 821, 827 (6th Cir. 1999), the Sixth Circuit reversed a district court's ruling to admit records pursuant to Rule 803(6) where the foundation witness was the special agent who was present when the documents were seized and who had analyzed them in preparing for the trial. The Dakota Court ruled that, because the special agent "did not have knowledge of the recordkeeping procedures of Gary Polinsky's business and was certainly not the custodian of those records for the business," the district court should not have admitted the records as business records. Id.
This Court agrees with Defendants that the handwritten notes are not admissible under Rule 803(6). The notes can be separated into two categories. The first category consists of notes that appear to be to Martin reminding himself to call Chris Webber or memorializing conversations with Chris Webber. As admitted by the government at the hearing, this first category of notes are not records of regularly conducted business and thus are not admissible under Rule 803(6).
The second category consists of a one-page list of about 15 items with dollar values varying in amount from about $1,000 to $20,000 with no corresponding dates or places for each item. (Pl.'s Resp., Ex. A at 1.) It does not appear that this list was made contemporaneously with each listed item. Accordingly, this first page of Exhibit A is likewise inadmissible under Rule 803(6) because it does not satisfy the second or third foundational elements of Rule 803(6). Rather than being a record kept in the regular course of the business; i.e., a ledger, an account sheet, a balance sheet, this is just a list of items that was apparently generated after the fact and all at one time. The government likewise has not shown that it can satisfy the fourth foundational element of Rule 803(6) — that the list was made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. To be admissible, the government must have a foundation witness familiar with Martin's record-keeping system. See United States v. Weinstock; United States v. Dakota. Testimony from other University of Michigan athletes who were not contemporaries of Chris Webber about Martin's records as to them and not Webber do not satisfy this fourth requirement.
2. Audiotaped Statements
The government also seeks to introduce statements made by Eddie Martin, intercepted by a court-authorized electronic surveillance. Again, because these statements are hearsay, they are only admissible if they qualify for an exception to the hearsay rule. The government contends that at the time Martin made the statements, he was unaware that he was the subject of a government investigation. Thus, the government argues, these are statements against penal interest that are admissible under Fed.R.Evid. 804(b)(3). That rule provides that when a declarant is unavailable, the following is not excluded by the hearsay rule:
(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's positions would not have made the statement unless believing it to be true.
To determine whether statements qualify under this exception, the Court must consider
"(1) whether the declarant is unavailable; (2) whether, from the perspective of the average, reasonable person, the statements were truly adverse to the declarant's penal interest, and (3) whether corroborating circumstances truly establish the trustworthiness of the statement." United States v. Tocco, 200 F.3d 401, 414 (6th Cir. 2000). Moreover, the hearsay exception is unavailable "unless the declarant is aware at the time of making the statement that it is against his interest." Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir. 1985).
As to the first factor, Eddie Martin's death obviously renders him unavailable to testify. The second factor is more troublesome. The government has not yet provided the Court with the tapes or transcripts of the tapes that it seeks to introduce. Accordingly, the Court defers its ruling on this matter. The Court will consider the surrounding circumstances of Martin's statements to determine whether Martin knew his statements were against his penal interest at the time they were made. See Advisory Committee Notes to Fed.R.Evid. 804 ("Whether a statement is in fact against interest must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest . . . On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying.")
B. Evidence of Martin Lending Money to Other Athletes
The government contends that in order to establish that Defendants' allegedly false answers were material to the grand jury's investigation, it should be permitted to introduce evidence that "other college athletes were involved in a similar scheme with Mr. Martin." (Pl.'s Resp. at 3; Pl.'s Ex. B, Martin's handwritten ledgers regarding three other athletes.) The government further argues that the evidence is admissible under Fed.R.Evid. 404(b) to show a pattern of criminal activity. Defendants respond that the evidence is inadmissible because Rule 404(b) permits the admission of other acts evidence relating to the defendant, not evidence of other acts involving a deceased non-witness and three other non-party athletes who were not at the University of Michigan during the same time Chris Webber played there.
This Court concludes that the evidence of Martin lending money to other athletes is not admissible under Rule 404(b). That Rule provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Although the government claims the evidence is admissible under Rule 404(b) to show a common criminal pattern, it fails to make a critical distinction — whose pattern of criminal activity does the evidence establish. Eddie Martin is not on trial here for money laundering, rather the Defendants are on trial for allegedly lying to the grand jury. Evidence that Martin may have had a pattern of loaning money to other University of Michigan athletes does not suggest a pattern or practice on the part of Defendants for lying to the grand jury. Moreover, despite the use of the term "person" in Rule 404(b), its use is generally reserved to address conduct of the defendant.
The government also argues that it needs this evidence to establish the materiality element of Defendants' violations under 18 U.S.C. § 1623(a), providing that "[w]hoever under oath . . . in any proceeding before . . . any . . . court or grand jury of the United States knowingly makes any false material declaration . . ." shall be guilty of an offense against the United States. "The general test for determining whether a false statement is material is if it has a natural tendency to influence, or is capable of influencing, the decision of the fact finder." United States v. Flowers, 813 F.2d 1320, 1325 (4th Cir. 1987). The Court is not persuaded by the government's materiality argument. It is too great a leap in legal analysis to argue that Rule 404(b) evidence regarding Martin and three other athletes who were not at the University of Michigan at the same time as Chris Webber is relevant to show materiality as to statements Webber gave to the grand jury concerning his relationship with Martin during his years at the University. Moreover, the probative value, if any, of this evidence is substantially outweighed by the danger of unfair prejudice its introduction would create. Fed.R.Evid. 403.
C. Statements to the University of Michigan
At the hearing, Defendants clarified that they are moving to exclude any reference to a letter prepared by Fallasha Erwin and submitted to the University of Michigan in response to questions submitted to Defendants by the University. Fallasha Erwin is Chris Webber's agent as well as his lawyer. He also represented Mayce Webber Jr. when he testified before the grand jury. Accordingly, Defendants argue that the letter is protected by the attorney/client privilege, which they intend to assert. The government responds that it intends to introduce the letter to establish that Defendants had a motive to tailor their testimony to the grand jury so as to be consistent with facts asserted in the letter. It argues that the contents of the letter are party admissions that are not protected by the attorney/client privilege.
The government is to provide the Court with a copy this letter. Accordingly, the Court defers its evidentiary ruling on this matter until it has had an opportunity to examine the letter.
D. Third Party Records
The government will seek to introduce various receipts from various businesses, and argues that the receipts, accompanied by the proper foundational witnesses, should be admitted as business records under Fed.R.Evid. 803(6). Defendants want to reserve their right to object to the records on relevance, foundation, and 803(6) grounds once the receipts have been identified. This Court will allow Defendants to raise objections at the time the government seeks to introduce this evidence.
E. Reference to a Medical Procedure
Defendants move to suppress any reference to a "medical procedure" for a girlfriend of Chris Webber's, which was mentioned in the indictment. The government, in its response, agrees that it will not seek to introduce evidence of the "medical procedure" set forth in the indictment.
F. Rule 807
The government also argues that, even though the above-referenced evidence maybe found inadmissible for other reasons, Rule 807, the so-called residual exception to the hearsay rule, applies to make them admissible. This Court is not persuaded by the government's arguments. The government has not come forward with independent evidence of reliability to overcome the clear requirements of the other Rules of Evidence discussed above. Moreover, for the reasons stated on the record, this Court is not persuaded by the government's argument that Defendants obtained an unfair advantage because of Martin's death and the Court's adjournment of the trial in this matter. As the Court clarified at the hearing on this matter, the trial date was adjourned only once, for one week. Moreover, most of the lawyers in this case were involved in another lengthy trial until shortly before this one was scheduled to begin, so an earlier trial date would have been impossible. Furthermore, as to the government's claim that they are unfairly disadvantaged regarding Eddie Martin's death, the Court observed that Defendants requested on the record at an earlier hearing to depose Martin while he was still alive but the government declined that request.
G. All Other Statements
Defendants have moved to exclude all of Martin's statements as hearsay. Defendants explain that the statements are not identified because the government has not yet provided Defendants with the evidence the government will seek to introduce. The government responded at the hearing that it will alert Defendants before any Martin statements are introduced and will provide Defendants with the hearsay exception that applies to such statement. Accordingly, this Court defers its evidentiary ruling until the government seeks to introduce such evidence.
III. Conclusion
For the above-stated reasons, this Court GRANTS IN PART AND DEFERS IN PART its ruling on Defendants' motion in limine.