881 F.3d 806
10th Cir.2018Background
- Matthew and Brandi Channon ran a scheme using fictitious MaxPerks accounts (many created by exploiting Gmail address variations) to redeem OfficeMax rewards and sell used ink cartridges, netting $105,191 over 21 months.
- OfficeMax data was transferred daily to a third-party database maintained by SHC; SHC produced three Excel workbooks (Files 1–3) summarizing enrollments and transactions used at trial.
- The government offered Rule 1006 summary exhibits based on the Excel files; defendants objected that the spreadsheets were not originals, were prepared for litigation, and that they were denied access to the underlying database.
- The district court admitted the spreadsheets as "originals" under Fed. R. Evid. 1001(d), found Files 1 and 2 to be business records and/or machine-generated, and allowed the Rule 1006 summaries.
- After conviction, the district court entered a joint-and-several money-judgment forfeiture of $105,191; the government agreed a remand may be necessary to conform the forfeiture to the substitute-asset provision (§ 853(p)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were the Excel files admissible as "originals" under Fed. R. Evid. 1001(d)? | Files accurately reflected the database; foundation laid by government witnesses. | Files resulted from queries/selection and were not originals; defendants lacked access to full database. | Affirmed: district court reasonably found Files 1 and 2 to be originals under Rule 1001(d). |
| Were the spreadsheets hearsay (and inadmissible because prepared for litigation)? | Records were machine-generated or business records; thus not hearsay or admissible under Rule 803(6). | Spreadsheets were prepared for litigation, defeating the business-records exception. | Affirmed: records fell outside hearsay as machine-generated; alternatively admissible under business-records exception. |
| Were Rule 1006 summary exhibits properly admitted without the underlying full database? | Summaries based on admissible originals (spreadsheets) and originals were made available to defendants. | Summaries unreliable without access to complete databases; underlying spreadsheets might be altered. | Affirmed: because spreadsheets were originals and provided, summary exhibits admissible under Rule 1006. |
| Was the $105,191 money-judgment forfeiture properly entered/traceable to fraud proceeds? | Forfeitable as proceeds of wire fraud; government to seek enforcement under substitute-asset statute if necessary. | Government failed to prove amount traceable to offense; procedural/statutory conformity required. | Remanded: court affirmed liability but remanded to permit proceedings to conform forfeiture to § 853(p) and Rule 32.2(e). |
Key Cases Cited
- United States v. Jenkins, 313 F.3d 549 (10th Cir.) (standard for abuse of discretion review of evidentiary rulings)
- United States v. Irvin, 682 F.3d 1254 (10th Cir.) (Rule 1006 summary requires admissible underlying information)
- United States v. Whitaker, 127 F.3d 595 (7th Cir.) (foundation requirement for electronic records matching database)
- United States v. Hamilton, 413 F.3d 1138 (10th Cir.) (machine-generated records are not hearsay under Rule 801)
- United States v. Ary, 518 F.3d 775 (10th Cir.) (requirements for business-records exception under Rule 803(6))
- United States v. Hernandez, 913 F.2d 1506 (10th Cir.) (business records may be presented in a different form at trial)
- United States v. Courtney, 816 F.3d 681 (10th Cir.) (wire-fraud proceeds are subject to forfeiture)
- Honeycutt v. United States, 137 S. Ct. 1626 (Sup. Ct.) (§ 853(p) governs forfeiture of substitute assets)