Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 1 of 6
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`Christopher J. Morvillo
`Celeste L.M. Koeleveld
`Daniel S. Silver
`(Admitted Pro Hac Vice)
`Clifford Chance US LLP
`31 West 52nd Street
`New York, NY 10019
`Telephone: (212) 878-3437
`christopher.morvillo@cliffordchance.com
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`Attorneys for Defendant
`Michael Richard Lynch
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`Jonathan Matthew Baum (SBN: 303469)
`Steptoe LLP
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`One Market Street
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`Steuart Tower, Suite 1070
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`San Francisco, CA 94105
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`Telephone: (510) 735-4558
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`jbaum@steptoe.com
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`Reid H. Weingarten
`Brian M. Heberlig
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`Michelle L. Levin
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`Nicholas P. Silverman
`Dwight J. Draughon
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`Drew C. Harris
`(Admitted Pro Hac Vice)
`Steptoe LLP
`1114 Avenue of the Americas
`New York, NY 10036
`Telephone: (212) 506-3900
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`UNITED STATES DISTRICT COURT
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` NORTHERN DISTRICT OF CALIFORNIA
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`Plaintiff,
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`vs.
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`UNITED STATES OF AMERICA,
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`MICHAEL RICHARD LYNCH and
`STEPHEN KEITH CHAMBERLAIN,
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`Defendants.
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` Case No.: 3:18-cr-00577-CRB
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`Judge: Hon. Charles Breyer
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`DEFENDANT MICHAEL RICHARD
`LYNCH'S OPPOSITION TO THE UNITED
`STATES' MOTION IN LIMINE NO. 6 TO
`ADMIT STATEMENTS OF AGENTS AND
`CO-CONSPIRATORS
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`(Government MIL No. 6)
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`Date: February 21, 2024 at 2 p.m.
`Court: Courtroom 6 – 17th Floor
`Date Filed: January 31, 2024
`Trial Date: March 18, 2024
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`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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`Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 2 of 6
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`I.
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`INTRODUCTION
`In its sixth motion in limine, the government seeks to introduce statements by former
`Autonomy employees as statements made within the course of their employment, under Federal
`Rule of Evidence 801(d)(2)(D), and statements by alleged co-conspirators, including former
`Autonomy employees, under Federal Rule of Evidence 801(d)(2)(E). ECF No. 301 (G. MIL No.
`6) at 1–2. The government does not specify which employee statements it seeks to admit but
`rather seeks a categorial order that all statements by all Autonomy employees between 2009 and
`2011—thousands of employees in 35 offices around the world—are admissible against Dr.
`Lynch. In addition, the government seeks a categorical order that all statements of co-
`conspirators in furtherance of the conspiracy to commit wire fraud are admissible. Finally, the
`government makes the unremarkable assertion that Rule 801(d)(2), which is limited to
`statements of party-opponents, does not allow Dr. Lynch to offer statements of Autonomy
`employees and statements of alleged co-conspirators.
`The government provides no particulars as to whose statements it seeks to admit, when or
`to whom they were made, or the substance of those statements. More importantly, the
`government's motion is devoid of any of the threshold analyses required to admit statements
`under Rules 801(d)(2)(D) and 801(d)(2)(E). As a result, the government's motion amounts to
`little more than an abstract lesson in the Federal Rules of Evidence regarding non-hearsay
`admissions of party-opponents and their agents, employees, and co-conspirators, with a
`gratuitous "factual background" section that makes irrelevant references to the U.K. civil
`judgment.1 The motion is impermissibly vague and premature and should be denied.
`
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`1 The government's factual background section has nothing to do with its motion. Rather than
`identify the specific employees and their statements, and the co-conspirators and their
`statements, that the government seeks to admit at trial—a necessary prerequisite to a ruling on
`the admissibility of those statements—the government quotes the U.K. civil judgment's
`characterizations of Dr. Lynch's position at Autonomy and how he carried out his role as CEO.
`Putting aside the fact that the U.K. civil judgment is irrelevant to this motion in limine, the
`government has agreed in meet-and-confers with the defense that the U.K. civil judgment is not
`admissible in these proceedings. It is therefore unclear why the government sees the need to
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`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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`Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 3 of 6
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`II.
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`ARGUMENT
`The government's motion tries to short-circuit the requisite fact-based inquiries necessary
`for admission under Rules 801(d)(2)(D) and 801(d)(2)(E) and should be rejected as improper and
`premature.
`A.
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`The Request to Admit Employee Statements is Premature and Should be
`Denied
`The Ninth Circuit has routinely held that admission under Rule 801(d)(2)(D) requires "a
`fact-based inquiry applying common law principles of agency" to determine whether an
`employee is an agent of an employer. United States v. Bonds, 608 F.3d 495, 504 (9th Cir. 2010)
`(quoting NLRB v. Friendly Cab Co., Inc., 512 F.3d 1090, 1096 (9th Cir. 2008)). "Rule
`801(d)(2)(D) requires the proffering party to lay a foundation to show that an otherwise
`excludible statement relates to a matter within the scope of the agent's employment." Breneman
`v. Kennecott Corp., 799 F.2d 470, 473 (9th Cir. 1986) (citation omitted). Moreover, an
`employee may be an agent of a corporate employer without being an agent of the CEO or other
`company executives. See United States v. Holmes, No. 5:18-CR-00258-EJD-1, 2021 WL
`2044470, at *57 (N.D. Cal. May 22, 2021). Thus, while it is true that statements of employees
`may sometimes be admissible when offered against an employer by a party-opponent, see Rule
`801(d)(2)(D); United States v. Gibson, 690 F.2d 697, 700–01 (9th Cir. 1982); United States v.
`Kirk, 844 F.2d 660, 663 (9th Cir. 1988), a court must first find that an agency relationship exists
`and that the statement at issue was within the scope of that relationship.2 Specifically, a court
`must determine that the employee "act[ed] on the principal's behalf and subject to the principal's
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`quote from the judgment here and in other motions in limine. See also ECF No. 296 (G. MIL
`No. 2) at 1.
`2 Notably, in both Kirk and Gibson, the government argued, and the courts accepted, that the
`statements at issue were not hearsay because they were not being offered for their truth, but only
`to establish the existence of an alleged scheme or conspiracy. See Gibson, 690 F.2d at 700–01;
`Kirk, 844 F.2d at 663. Thus, the statements were not offered to establish the defendant's
`membership in the scheme, nor were the statements attributable to the defendant as if he had
`made the statements himself.
`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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`Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 4 of 6
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`control" and that both the principal and the employee manifested assent to the principal's right to
`control the employee. See Holmes, 2021 WL 2044470, at *57 (citing Bonds, 608 F.3d at 506).
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`A recent case from the Northern District of California highlighted the distinction between
`admitting statements of employees against a corporation as opposed to the CEO of that
`corporation. In Holmes, a wire fraud case against Elizabeth Holmes, the founder and CEO of
`Theranos, the government sought to admit against Holmes statements by "Theranos agents and
`employees on matters within the scope of that relationship and while it existed" under Rule
`801(d)(2)(D). Id. at *56. Although the court recognized that "Kirk and Gibson support the
`Government's position," it held that it was "premature . . . to issue a categorical ruling admitting
`any and all testimony of Theranos agents and employees" because the government had failed to
`show that an agency relationship existed between the defendant and "all of the hundreds of
`Theranos employees." Id. at *57. The court further observed that "[u]nder general agency
`principles, Theranos employees were not Holmes' agents; they were Theranos' agents," and noted
`that the "[t]he Government does not cite, and this Court is unaware of, any case supporting the
`admission of the statements of hundreds of employees to a corporate CEO under Rule
`801(d)(2)(D)." Id. Instead, the court cited the Ninth Circuit's instruction in Bonds that a fact-
`based inquiry applying agency principles was required to determine if a statement is admissible
`under Rule 801(d)(2)(D), and accordingly deferred decision pending such an inquiry. Id. at *57–
`58.
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`Here, the requirements to admit a statement under Rule 801(d)(2)(D) have not been met.
`Like in Holmes, the government seeks a categorical order admitting all statements of all
`Autonomy employees without a showing that an agency relationship existed between each
`employee and Dr. Lynch. The government's motion should be rejected as premature, just as it
`was in Holmes. Unless and until the government shows that a specific statement relates to a
`matter within a scope of employment, see Breneman, 799 F.2d at 473, and the Court determines
`that an agency relationship exists between a specific employee and Dr. Lynch, a blanket request
`to admit unspecified statements from unspecified employees who may or may not be agents of a
`CEO like Dr. Lynch must be rejected.
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`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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`Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 5 of 6
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`B.
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`The Request to Admit Co-conspirator Statements is Premature and Should
`be Denied
`Under Rule 801(d)(2)(E), the statement of a co-conspirator is admissible against the
`defendant if it was "made by the party's co-conspirator during and in furtherance of the
`conspiracy." Fed. R. Evid. 801(d)(2)(E). If a party seeks to admit a statement under Rule
`801(d)(2)(E) but the "parties dispute whether these two requirements of the rule have been met,
`'the offering party must prove them by a preponderance of the evidence.'" United States v.
`Saelee, 51 F.4th 327, 342 (9th Cir. 2022) (quoting Bourjaily v. United States, 483 U.S. 171, 176
`(1987)); see also United States v. Chen, 548 F. Supp. 3d 904, 905 (N.D. Cal. 2021) (holding that
`government had met its burden to admit statements under 801(d)(2)(E) because it provided
`exhibits and two appendices detailing the exact statements it intended to admit and offered
`emails, declarations, and other evidence to prove the defendants' participation in the conspiracy).
`Finally, Criminal Local Rule 16-1(c)(4) requires the government to provide "[a] summary of any
`statement the government intends to offer under F. R. Evid. 801(d)(2)(E) in sufficient detail that
`the Court may rule on the admissibility of the statement." Crim. L.R. 16-1(c)(4).
`Here, the requirements to admit a statement under Rule 801(d)(2)(E) have not been met
`because the government has failed to identify either the alleged co-conspirators or the specific
`statements it seeks to admit. Moreover, the government has fallen far short of its burden to
`prove, by a preponderance of the evidence, that a particular statement was made by a co-
`conspirator in furtherance of a conspiracy. The government's motion is instead replete with
`blanket assertions that unidentified statements by unidentified co-conspirators are admissible,
`and it asserts, somewhat incredibly, that the evidence of conspiracy that it is required to provide
`is "convenient[ly] summar[ized]" in this Court's decision denying motions for judgment of
`acquittal and a new trial in United States v. Hussain. ECF No. 301 at 5. The government cannot
`satisfy its burden to admit statements under Rule 801(d)(2)(E) by citing to a wholly different
`case involving a different defendant and claiming that the Court is already "familiar" with the
`evidence of conspiracy. Id. Because Dr. Lynch disputes that the requirements of Rule
`801(d)(2)(E) have been met, the government must prove that specific statements by specific co-
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`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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`Case 3:18-cr-00577-CRB Document 307 Filed 01/31/24 Page 6 of 6
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`conspirators were made in furtherance of the charged conspiracy in order for the statements to be
`admissible. Saelee, 51 F.4th at 342.
`III. CONCLUSION
`For these reasons, the Court should deny the government's motion in limine to admit any
`and all statements of Autonomy employees against Dr. Lynch pursuant to either Rule
`801(d)(2)(D) or Rule 801(d)(2)(E).
`Dated: January 31, 2024
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`Respectfully submitted,
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`By: _/s/ Christopher J. Morvillo_
`Christopher J. Morvillo
`Celeste L.M. Koeleveld
`Daniel S. Silver
`(Admitted Pro Hac Vice)
`CLIFFORD CHANCE US LLP
`31 West 52 Street
`New York, NY 10019
`Telephone: (212) 878-3437
`christopher.morvillo@cliffordchance.com
`
`Jonathan Matthew Baum (SBN: 303469)
`STEPTOE LLP
`One Market Street
`Steuart Tower, Suite 1070
`San Francisco, CA 94105
`Telephone: (510) 735-4558
`jbaum@steptoe.com
`
`Reid H. Weingarten
`Brian M. Heberlig
`Michelle L. Levin
`Nicholas P. Silverman
`Dwight J. Draughon
`Drew C. Harris
`(Admitted Pro Hac Vice)
`STEPTOE LLP
`1114 Avenue of the Americas
`New York, NY 10036
`Telephone: (212) 506-3900
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`Attorneys for Defendant
`Michael Richard Lynch
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`DEFENDANT MICHAEL RICHARD LYNCH’S OPPOSITION TO GOVERNMENT'S MOTION IN LIMINE
`NO. 6 TO ADMIT STATEMENTS OF AGENTS AND CO-CONSPIRATORS – 3:18-CR-00577-CRB
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