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`Case 2:18-cr-00422-SMB Document 1317 Filed 09/15/21 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-SMB
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`ORDER
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`Pending before the Court is the United States’ Motion Re Bank Records and
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`Summary Exhibits (Doc. 1223), to which Defendants have responded. (Doc. 1264.)
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`The Government seeks a ruling that the bank records, relating to the February 14,
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`2020 notice pursuant to Federal Rule of Evidence 902(11), have been authenticated
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`and are not excluded by the rule against hearsay. Rule 803(6). The Government
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`also seeks a ruling that nine summary exhibits are admissible pursuant to Federal
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`Rule of Evidence 1006.
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`As to the bank records, Defendants do not object to authenticity. Therefore,
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`Defendants will be precluded from raising any objection to the bank records under
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`Federal Rule of Evidence 902(11). Defendants’ right to object for other reasons is
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`preserved.
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`As to the summary exhibits, the Government has provided the exhibits along
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`with the documents used to create them. Defendants object to the motion but only
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`provide specific objections to three of the summary exhibits. Under Rule 1006, a
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`Case 2:18-cr-00422-SMB Document 1317 Filed 09/15/21 Page 2 of 3
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`“proponent may use a summary, chart, or calculation to prove the content of
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`voluminous writings, recordings, or photographs that cannot be conveniently
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`examined by the court.” Fed. R. Evid. 1006. The proponent is required to make the
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`originals or duplicates available to the opposing party for examination or copying at
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`a reasonable time and place. Fed. R. Evid. 1006. “A proponent of a summary exhibit
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`must establish a foundation that (1) the underlying materials on which the summary
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`exhibit is based are admissible into evidence, and (2) those underlying materials
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`were made available to the opposing party for inspection.” Amarel v. Connell, 102
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`F.3d 1494, 1516 (9th Cir. 1996), as amended (Jan. 15, 1997) (citing Paddack v. Dave
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`Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984)). The underlying materials
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`“must be admissible, but need not themselves be admitted into evidence.” United
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`States v. Rizk, 660 F.3d 1125, 1130 (9th Cir. 2011) (citing United States v. Meyers,
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`847 F.2d 1408, 1412 (9th Cir. 1988)). When considering the admissibility of these
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`kinds of exhibits, “‘it is critical to distinguish between charts or summaries as
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`evidence and charts or summaries as pedagogical devices.’” San Francisco
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`Baykeeper v. W. Bay Sanitary Dist., 791 F. Supp. 2d 719, 742 (N.D. Cal. 2011)
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`(quoting United States v. Woods, 943 F.2d 1048, 1053 (9th Cir. 1991)). “[S]uch
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`pedagogical devices should be used only as a testimonial aid, and should not be
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`admitted into evidence.” Woods, 943 F.2d at 1053. The Ninth Circuit has “long held
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`that such pedagogical devices should be used only as a testimonial aid, and should
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`not be admitted into evidence or otherwise be used by the jury during deliberations.”
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`Id. at 1053-54 (citations omitted).
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`First, Defendants object to Exhibit A by arguing that it is pedagogical and not
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`a true summary exhibit. Exhibit A is a series of flow charts purporting to summarize
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`money transfers supporting money laundering counts 53 – 100. This exhibit relies
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`upon bank records which have been authenticated and are admissible. Additionally,
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`the underlying materials were made available to Defendants during discovery. Each
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`flow chart merely relates which bank the money was coming from, how much was
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`Case 2:18-cr-00422-SMB Document 1317 Filed 09/15/21 Page 3 of 3
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`transferred, the date of the transfer, and where the money was received. The Court
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`finds that this is a summary exhibit that properly summarizes the transfer of money
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`and is admissible pursuant to Fed. R. Evid. 1006 subject to the Government laying
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`foundation as to how it was prepared. Defendants challenge the accuracy of the
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`numbers and should be allowed to cross-examine the preparer of the flow charts.
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`Defendants object to Exhibits B and C because they are based, in part, on
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`records prepared by Carl Ferrer. Defendants argue that because Ferrer is the
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`Government’s main cooperating witness, they must be afforded the opportunity to
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`cross-examine Ferrer about the records. The Court agrees, and because documents
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`prepared by Carl Ferrer may be subject to legitimate cross-examination, Exhibits B
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`and C may not be supported by admissible evidence. Thus, the Court cannot rule
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`that the two exhibits are admissible at this time.
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`As to Exhibits D through I, there was no specific objection by Defendants.
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`The Court has reviewed the exhibits and they are based on bank records which have
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`been authenticated, are admissible, and have been made available to Defendants
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`during discovery. Therefore, the Court finds that these are summary exhibits that
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`summarize payments to various Defendants and are admissible pursuant to Fed. R.
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`Evid. 1006 subject to the Government laying foundation as to how it was prepared.
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`IT IS ORDERED granting in part and denying in part the United States’
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`Motion Re Bank Records and Summary Exhibits (Doc. 1223) to the extent that the
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`Court finds: (1) the bank records have been authenticated and are not excluded by
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`the rule against hearsay, Rule 803(6) and (2) Summary exhibits A and D through I
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`are true summary exhibits admissible pursuant to Fed. R. Evid. 1006 subject to
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`foundational testimony. Exhibits B and C are not admissible at this time.
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`Dated this 15th day of September, 2021.
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