United States Court of Appeals
For the First Circuit
No. 06-1192
UNITED STATES,
Appellee,
v.
STEVEN A. MILKIEWICZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Paul J. Barbadoro, U.S. District Judge**]
Before
Torruella, Lynch and Lipez, Circuit Judges.
Terrance J. McCarthy for appellant.
Paul G. Levenson, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
December 6, 2006
*
Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. This case requires us to consider
two unsettled issues in First Circuit law: the proper use of the
various evidentiary rules governing the introduction of document
summaries at trial, and the applicability of the constitutional
rule set out in United States v. Booker, 543 U.S. 220 (2005), to
orders of restitution. The appellant, Steven A. Milkiewicz, was
convicted of defrauding the United States District Court for the
District of Massachusetts ("USDC") through a scheme in which he –
collaborating with a court administrator – sold office supplies to
the USDC at inflated prices and billed it for quantities of
products in excess of what he delivered.1
Appellant claims that he is entitled to a new trial
because the district court improperly allowed the jury to consider
two sets of summary charts, one depicting the allegedly fraudulent
sales transactions and the other showing discrepancies in his
income tax reporting. He also claims the district court's
restitution order, which was based on its own factual findings,
violated his Sixth Amendment rights under the principles set out in
Booker. Finding neither evidentiary nor constitutional error, we
affirm appellant's conviction and sentence.
1
Following the government’s practice, we shall use the term
"USDC" to refer to the United States District Court for the
District of Massachusetts as a governmental purchaser of goods and
services, reserving the term "court" or "the district court" to
refer to the district court judge who handled the trial level
proceedings in this case.
-2-
I.
A. Factual Background
We summarize the facts as the jury could have found them,
drawing all inferences in the light most consistent with the jury's
verdict. See United States v. Charles, 456 F.3d 249, 251 (1st Cir.
2006). Between February 1997 and June 2002, appellant Milkiewicz
and Timothy Schroeder, the Procurement Officer for the Clerk of the
USDC, used various techniques to ensure that Milkiewicz would win
the USDC's purchasing contracts and have the ability to overcharge
for the products provided.2 For example, to avoid the USDC
requirement that procuring officials obtain at least three
competitive bids for the purchase of goods or services over $2,500,
appellant – with Schroeder's complicity – sometimes submitted bids
from each of his two separate companies. The third bid at times
was forged, and at least once came from a sham entity created by
Schroeder. By eliminating competition, appellant not only was
assured that he would be given the business but also was able to
charge more and thereby elicit fraudulently inflated profits.
On other occasions, appellant's collaboration with
Schroeder allowed him to charge the USDC for items he never
delivered. This conduct occurred repeatedly with respect to
purchases of large amounts of paper and toner cartridges used for
2
Schroeder pled guilty and testified at Milkiewicz’s trial
pursuant to an agreement with the government.
-3-
photocopiers and computer printers. In one such transaction,
appellant billed the USDC $21,570 ($35.95 per carton) for 600
cartons of copier paper but arranged to deliver only 400 cartons.
The illicit gains from this purchase included not only the money he
received for the undelivered paper ($7,190), but also a fraudulent
mark-up of about $4,000 that he was able to obtain thanks in part
to cooperation from his supplier, who regularly submitted inflated
competitive bids at appellant's request.3
The evidence also showed that, during the years at issue,
appellant understated his taxable income and gave his tax preparer
false information about his gross receipts and business expenses.
The government used the evidence of his illicit transactions to
prove that he had earned income in excess of what he reported and
that he had spent less than he stated to purchase inventory from
his suppliers.
In December 2004, Milkiewicz was charged in an indictment
with one count of conspiracy to defraud the United States, in
violation of 18 U.S.C. § 371; eight counts of presenting to the
United States false claims for payment, in violation of 18 U.S.C.
3
The government presented evidence showing that the
competitor, Richard Kelly of New England Office Supply ("NEOS"),
submitted what he knew would be losing bids to the USDC, but did so
because he also knew that, if Milkiewicz won the contract, NEOS
would be the actual supplier.
-4-
§ 287;4 one count of bribery of a public official, in violation of
18 U.S.C. § 201; and five counts of filing false tax returns, in
violation of 26 U.S.C. § 7206(1). At the conclusion of an eight-
day trial, a jury convicted him on all counts except the bribery
charge and one of the false tax return charges. He subsequently
was sentenced to a 41-month term of imprisonment and ordered to pay
restitution in the sum of $196,796.63, the latter a joint and
several obligation with his co-defendant, Schroeder.5
B. The Disputed Summary Charts
The evidence introduced at trial included several
thousand pages of financial records offered by the government to
prove specific transactions consistent with a more general
description of the scheme that Schroeder provided in his testimony.
Among these documents were approximately 600 pages of USDC records,
including vouchers and invoices that showed purchases from
appellant’s two companies. Another substantial set of documents
contained business records, including purchase orders and invoices,
from more than twenty vendors whom appellant allegedly used as
suppliers for the products he sold to the USDC. These suppliers
were identified by IRS investigators who had examined appellant’s
bank activity. The records were offered into evidence, by
4
These counts alleged eight specific episodes of over-
charging or under-delivering, including the one described above.
5
The sentence also included a term of supervised release and
a special assessment of $1,300.
-5-
stipulation, through affidavits from the various keepers of
records.
Toward the end of its case, the government called an IRS
agent, Jonathan Wlodyka, to testify about a series of charts that
summarized the information contained in these voluminous financial
documents. Two sets of charts are at issue in this case – what we
shall call the “Transactions Set" and the “Tax Set.” The
Transactions Set summarizes data from the records that the
government offered as evidence of the fraudulent transactions with
the USDC. The Tax Set summarizes documents related to the tax
charges.
The Transactions Set consists of three relevant charts:
Exhibits 1, 1a and 1b. Exhibit 1a summarizes data from the USDC
records reflecting purchases from appellant. Exhibit 1b summarizes
data from the roughly 1,300 pages of authenticating affidavits and
vendor business records depicting appellant’s purchases from
suppliers. Also included in that batch of records were copies of
checks from appellant to the vendors, which the government offered
to supplement incomplete vendor records. The checks were used to
prove appellant’s purchases when vendors could not produce invoices
documenting those purchases.
Exhibit 1 juxtaposes the information in the 1a and 1b
charts, providing a comparison in chronological order between what
appellant sold to the USDC and what he purchased from his vendors.
-6-
The calculated differences are listed in columns labeled “Price
Difference” and “Quantity Difference.” The “Price Difference”
column shows the disparity between what appellant charged the USDC
for specific items on particular dates and what he allegedly paid
suppliers for those goods. The government presented evidence
suggesting that, if Milkiewicz and Schroeder had not manipulated
the competitive bid process, some of Milkiewicz’s suppliers would
have sold their products directly to the government at prices far
below what Milkiewicz charged. The “Quantity Difference” column
contains figures showing an amount appellant billed to the USDC
where records show no corresponding purchase from a vendor. In
some instances, the chart showed that appellant purchased fewer
goods than he sold to the USDC, and for which he received payment,
and at other times it showed no purchase at all of items for which
the USDC had paid. In the rows involving alleged non-deliveries,
the spaces in columns labeled “Quantity Purchased” and “Price Paid
Per Unit” are blank.6
6
For example, the chart lists two court invoices dated
October 9, 2001. The first listing shows that Milkiewicz billed
the USDC for 400 cartons of paper, at $36.95 per carton, for a
total price of $14,780. This is matched up with a vendor invoice,
dated October 17, for 300 cartons of paper, at $23.50 per carton,
totaling $7,050. The “Price Difference” column contains the figure
“$4,035,” reflecting the mark-up of $13.45 on the 300 cartons. The
“Quantity Difference Column” contains the figure “$3,695,"
reflecting the $36.95 payment for 100 undelivered cartons.
The second listing for October 9 is for 60 cartons of color
paper, at $45 per carton. It is matched with an invoice, also
dated October 17, showing the purchase of 60 cartons at $32.50 per
carton. The figure $750 appears in the “Price Difference” column
-7-
The government asserts that the “obvious inference” to be
drawn from the flow of money and product depicted in Exhibit 1 is
that appellant realized illicit profits both by charging prices in
excess of what would have been paid in a legitimate bid process and
by charging for some goods that he never delivered – either
providing a lesser quantity than ordered or by not delivering an
order at all. In closing argument, the prosecutor urged the jury
to infer just that, and he emphasized in particular that where the
charts were blank – i.e., where there was no evidence that
Milkiewicz purchased an item from suppliers – he never delivered
the item to the USDC.
The Tax Set similarly consists of three charts: Exhibits
2, 2a and 2b. Exhibit 2a lists the checks the government viewed as
evidence of the “gross receipts” of appellant’s office supply
business in each of the years 1997 through 2001. Documents
supporting the data were in evidence, including records of hundreds
of payments from the USDC.7 Exhibit 2b summarizes the documentary
evidence of appellant’s purchases from his suppliers, or, in tax
(($45-$32.50) x 60), and the “Quantity Difference” column is blank.
The listing for October 5, 1999, depicts a complete non-
delivery. Milkiewicz billed the USDC $8,760 for 240 cartons of
paper, but there is no corresponding purchase identified. The
columns showing “Quantity Purchased” and “Price Paid Per Unit” were
blank, and the “Quantity Difference” was listed as the full $8,760.
7
Many of the documents underlying the Tax Set – such as the
USDC records – were the same as those used to generate the
Transactions charts.
-8-
terms, his “cost of goods sold.” Exhibit 2 compares the figures
appellant reported on his tax returns in the categories of “gross
income” and “cost of goods sold” with the data developed in the
investigation, as summarized in Exhibits 2a and 2b. Exhibit 2 also
calculates, for each of the five years, the additional tax due
based on the information compiled in the chart.8
Appellant’s counsel initially objected only to admission
of the charts as independent evidence, consenting to their use as
demonstrative jury aids, or “chalks.” He later opposed the court’s
decision to allow the jury to have the charts during their
deliberations, arguing that the summaries impermissibly shifted the
burden of proof to appellant. Counsel asserted that the blank
spaces on Exhibit 1 – which indicated that the government had found
no evidence that appellant purchased certain supplies for which he
charged the government – “cannot help but lead jurors to say, Well,
8
Exhibit 2 is set up with five vertical boxes representing
each year from 1997 to 2001 and a column on the left side listing
various components of appellant’s income and expenses, including
“Taxable Interest,” “Business Income/Loss,” “Other Income,” and
“Credits.” The “Business Income” listing is subdivided into
separate lines for appellant’s and his wife’s income. His business
income is further subdivided into “Gross Income,” “COGS” (“cost of
goods sold”) and other expenses. Each of the boxes containing data
for a particular year is divided into two columns, one titled “Per
Return” and one titled “Per Investigation.” For 1998, for example,
the chart shows gross business income for appellant of $167,385 in
the “Per Return” column and “$188,929" in the “Per Investigation”
column. The corresponding amounts for “COGS” were $136,000 “Per
Return” and $58,647.05 “Per Investigation.” Each annual column also
included entries for the tax reported “Per Return” and the total
tax owed “Per Investigation.”
-9-
how come the defendant is not filling those gaps.” The court
rejected this objection, concluding that a similar “argument could
be made with respect to any piece of circumstantial evidence.” It
agreed, however, to specifically instruct the jury that appellant
had no burden to produce evidence that he had purchased such
goods.9
On appeal, Milkiewicz no longer pursues the burden of
proof issue, instead arguing that the jury should not have been
given the charts because the Transactions Set contained errors and
significant omissions, rendering the summaries unreliable, while
the Tax Set was improperly admitted through Agent Wlodyka, who was
not qualified as an expert. Appellant relatedly argues that the
summaries should not have been admitted because their probative
value was outweighed by the danger of unfair prejudice. See Fed.
R. Evid. 403.10
9
After generally advising the jury that the burden is on the
government to prove guilt beyond a reasonable doubt and that no
presumption of guilt can be drawn from a defendant’s failure to
call witnesses or produce any evidence, the court added:
In particular, I instruct you that Mr. Milkiewicz
has no burden to produce evidence that he purchased goods
that the government contends he did not deliver to the
Clerk’s Office. The burden of proof on this issue, as is
the case with all issues, remains with the government.
10
Rule 403 provides for the exclusion of evidence if “its
probative value is substantially outweighed by the danger of unfair
prejudice . . . .”
-10-
II.
In deciding whether – and how – to admit the Transactions
and Tax summaries offered by the government, the district judge
carefully reviewed our precedent on summary evidence and, during a
lengthy explanation from the bench, admitted that he was perplexed.
As we shall discuss, the judge ultimately relied on Federal Rules
of Evidence 611(a) and 703 because he understood our precedent to
foreclose admission of the charts under Rule 1006, which explicitly
addresses the use of summaries, see infra at note 11. Noting that
“this is an area where it would be helpful for the Court to provide
some clarification to district judges,” he urged the First Circuit
to consider “a slightly different approach” than he believed our
case law required. Having done our own review, we agree that our
precedent is somewhat opaque – a reflection, we believe, of the
intricacies of the law generally – and we further agree with the
district court’s assessment of the correct approach to Rule 1006
summaries. Also, a proper understanding of the evidentiary rules
applicable to summaries is important because the basis for
admission can affect how a summary is used, including whether a
jury may rely on it as primary evidence and whether it is allowed
in the jury room during deliberations, see infra at note 14. We
therefore digress from appellant’s particular concerns to clarify
the landscape.
-11-
A. Document Summaries: Legal Principles
The Federal Rules of Evidence offer multiple options for
an attorney who wishes to summarize complex evidence and bring it
to the jury’s attention in the form of a chart. The various rules
are not always mutually exclusive, and so it is unsurprising that
confusion sometimes arises – as it did in this case – over the
appropriate basis for admitting a particular summary. We
previously attempted to respond to the ambiguities in our own law
in Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d
1 (1st Cir. 1996), where we observed that, contrary to statements
in prior cases, evidence underlying summaries admitted under Rule
1006 need not be admitted into evidence and that “[t]he requirement
of prior admission actually applies to a different sort of
summary.” Id. at 7 n.14. We did not, however, identify the rule
under which such other summaries could be introduced and, indeed,
left ambiguous whether Rule 1006 was inapplicable if the underlying
documents were in evidence.11 We now give more focused attention
to each of the options and explicitly hold that summaries that are
11
The district court had the impression that Rule 1006 did not
apply in such a case:
I understand, based on my reading of the First
Circuit’s opinion in Air Safety . . . that the
distinction turns on whether the actual documents are
admitted into evidence . . . . I understand the Court to
say . . . that where the underlying documents are
themselves admitted into evidence, the use of a summary
is not justified by Rule 1006.
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otherwise admissible under Rule 1006 are not rendered inadmissible
because the underlying documents have been admitted, in whole or in
part, into evidence.
Rule 1006 allows “[t]he contents of voluminous writings
. . . which cannot conveniently be examined in court [to] be
presented in the form of a chart, summary, or calculation.” Fed.
R. Evid. 1006.12 It creates an exception to Rule 1002, which
requires that originals be used to prove the content of writings,
recordings and photographs. Evidence admitted under Rule 1006 must
be otherwise admissible and remains subject to the usual objections
under the rules of evidence and the Constitution. “Most notably,
Rule 1006 evidence normally is objectionable if the voluminous
source material on which it is based is inadmissible.” 31 Charles
A. Wright & Victor J. Gold, Federal Practice and Procedure § 8043,
at 521-22 (2000). The proponent must show that the voluminous
source materials are what the proponent claims them to be and that
the summary accurately summarizes the source materials. Id. at
525.
12
The rule states in full:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,
or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by
other parties at [a] reasonable time and place. The
court may order that they be produced in court.
-13-
Under Rule 1006, the underlying documents must be made
available to the other parties, and “[t]he court may order that
they be produced in court.” The discretion accorded the trial
court to order production of the documents means that the evidence
underlying Rule 1006 summaries need not be introduced into
evidence, see, e.g., United States v. Janati, 374 F.3d 263, 272-73
(4th Cir. 2004); Air Safety, 94 F.3d at 7 n.14, but nothing in the
rule forecloses a party from doing so. For example, we can imagine
instances in which an attorney does not realize until well into a
trial that a summary chart would be beneficial, and admissible as
evidence under Rule 1006, because the documents already admitted
were too voluminous to be conveniently examined by the jury.
Most often, however, we think it likely that an attorney
would anticipate the benefits of summarizing voluminous writings
and would take advantage of the opportunity offered by Rule 1006 to
present only the summary at trial. Consequently, while in most
cases a Rule 1006 chart will be the only evidence the fact finder
will examine concerning a voluminous set of documents, see Air
Safety, 94 F.3d at 7 n.14; United States v. Bakker, 925 F.2d 728,
736-37 (4th Cir. 1991); cf. 6 Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Federal Evidence § 1006.04[1] (Joseph M.
McLaughlin, ed., 2d ed. 2000), in other instances the summary may
be admitted in addition to the underlying documents to provide the
jury with easier access to the relevant information. See, e.g.,
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United States v. Green, 428 F.3d 1131, 1134-35 (8th Cir. 2005);
United States v. Petty, 132 F.3d 373, 379 (7th Cir. 1997); United
States v. Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985); United
States v. Lemire, 720 F.2d 1327, 1347 (D.C. Cir. 1983).
This latter practice has drawn criticism as inconsistent
with the purpose of Rule 1006 to provide an exception to the “best
evidence rule” because, “[i]f the underlying evidence is already
admitted, there is no concern that a summary is used in lieu of the
‘best evidence.’” See Federal Practice and Procedure § 8043, at
523-24 n.8. We agree with the Fifth Circuit, however, that “[t]he
fact that the underlying documents are already in evidence does not
mean that they can be ‘conveniently examined in court.’” Stephens,
779 F.2d at 239 (quoting Lemire, 720 F.2d at 1347). Thus, in such
instances, Rule 1006 still serves its purpose of allowing the jury
to consider secondary evidence as a substitute for the originals.
A trial judge also may allow use of a chart or other
summary tool under Fed. R. Evid. 611(a), which gives the trial
court “control over the mode . . . [of] presenting evidence.”13
See, e.g., United States v. Harms, 442 F.3d 367, 375 (5th Cir.
13
Rule 611(a) provides:
Control by Court. The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for
the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
-15-
2006); Janati, 374 F.3d at 273; United States v. Bray, 139 F.3d
1104, 1111 (6th Cir. 1998). Such summaries most typically are used
as “pedagogical devices” to “clarify and simplify complex testimony
or other information and evidence or to assist counsel in the
presentation of argument to the court or jury.” Bray, 139 F.3d at
1111; see also Janati, 374 F.3d at 273; 6 Weinstein’s Federal
Evidence § 1006.08[4]. A summary chart used as a pedagogical
device must be linked to evidence previously admitted and usually
is not itself admitted into evidence. Janati, 374 F.3d at 273;
Bray, 139 F.3d at 1112; Air Safety, 94 F.3d at 7 n.14.14
The lines between these two types of summary documents
are easily blurred. A summary that is admissible under Rule 1006
– and is thus most appropriately introduced under that rule – could
properly be offered under Rule 611(a) if the supporting material
has been admitted into evidence. Likewise, a chart that originally
was offered as a jury aid to assist with review of voluminous
underlying documents already in evidence – and which accurately
summarizes those documents – alternatively could be admitted under
Rule 1006 if the court concluded that the supporting documents
could not be examined conveniently in court. To complicate
14
Courts usually do not allow such charts to go to the jury
room absent consent of the parties. See Harms, 442 F.3d at 375;
see also 31 Federal Practice and Procedure § 8043, at 524 n.9
(“[C]ourts often do not permit demonstrative evidence in the jury
room.”); 6 Weinstein’s Federal Evidence § 1006.08[4] (“While a
court retains discretion to permit the jury to take such aids into
their deliberation, most courts do not allow it.”).
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matters, a court also has discretion under Rule 703 to provide the
jury in some circumstances with the “facts or data” underlying an
expert’s opinion, and such material may be presented in the form of
a summary chart. Fed. R. Evid. 703; Janati, 374 F.3d at 273.
In a case where voluminous underlying records are
involved, the key difference between these various approaches
appears to be the purpose for which the summaries are offered.
Charts admitted under Rule 1006 are explicitly intended to reflect
the contents of the documents they summarize and typically are
substitutes in evidence for the voluminous originals.
Consequently, they must fairly represent the underlying documents
and be “‘accurate and nonprejudicial.’” Bray, 139 F.3d at 1111
(quoting Gomez v. Great Lakes Steel Div., Nat’l Steel Corp., 803
F.2d 250, 257 (6th Cir. 1986)); see also Janati, 374 F.3d at 272.15
By contrast, a pedagogical aid that is allowed under Rule
611(a) to illustrate or clarify a party’s position, or allowed
under Rule 703 to assist expert testimony, may be less neutral in
its presentation. Record support is necessary because such devices
tend to be “more akin to argument than evidence,” 6 Weinstein’s
Federal Evidence § 1006.08[4]; Bray, 139 F.3d at 1111, and “may
reflect to some extent, through captions or other organizational
devices or descriptions, the inferences and conclusions drawn from
15
The records summarized must, of course, otherwise be
admissible. See, e.g., Janati, 374 F.3d at 273; United States v.
Jamieson, 427 F.3d 394, 409 (6th Cir. 2005).
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the underlying evidence by the summary’s proponent,” Bray, 139 F.3d
at 1111; see also Janati, 374 F.3d at 273. In some cases, however,
such pedagogical devices may be sufficiently accurate and reliable
that they, too, are admissible in evidence, even though they do not
meet the specific requirements of Rule 1006. Bray, 139 F.3d at
1112; 6 Weinstein’s Federal Evidence § 1006.04[2].
B. Appellant’s Objections to the Summary Charts
Our review of the court’s decision to allow the jury to
consider the summaries during its deliberations is highly
deferential: “It is hard to imagine an issue on which a trial judge
enjoys more discretion than as to whether summary exhibits will be
helpful.” Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 67
(1st Cir. 2002). The district court exercised that discretion here
with meticulous care. It required the government to modify the
summaries to eliminate unnecessary and potentially prejudicial
information and labels,16 and it explicitly considered “the
usefulness versus the potential misuse of summaries of this
nature,” concluding that the jurors needed the charts to be able to
sort through such “an extraordinarily complex document case.”
16
For example, it required that the comparison columns in
Exhibit 1 be re-labeled with less judgmental headings: “Profit by
Margin” became “Price Difference” and “Profit by Shortage” became
“Quantity Difference.” We note that, in requiring these
refinements to make the Transactions Set more neutral, the district
court undoubtedly was viewing them as Rule 1006 summaries, even
though it ultimately felt compelled to rely upon Rule 611(a) in
allowing them to be introduced.
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The court recognized the risk of prejudice inherent in
such a compact presentation of the evidence, but concluded that the
jurors “will clearly understand that those charts are based on
assumptions and they’re only as valid as the underlying assumptions
. . . .” In addition, although the general principles we have
outlined above would have permitted the court to admit most, if not
all, of the charts into evidence under Rule 1006, the court chose
not to do so because it read our precedents to foreclose admission
of a summary chart when the underlying documents already were in
evidence.17 The court instead allowed their use under Rules 611 and
703, but did not admit them into evidence. It gave a cautionary
instruction that typically is used to ensure that jurors
considering non-evidentiary summaries focus on the underlying
documents rather than on the summaries:
A witness for the government and a
witness for the defendant testified about
certain documents that purported to summarize
various documents that have been admitted into
evidence. Such summaries are not independent
evidence of their subject matter and are only
as valid and reliable as the underlying
evidence they summarize. You are free to
disregard them entirely. It is for you to
17
Toward the end of his lengthy explanation for allowing the
jury to use the summaries, the court stated:
I’m going to follow what I think is the First Circuit
guidance on this. . . . So, I’m not admitting them
pursuant to Rule 1006, although I think if it were up to
me, I would.
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decide whether they accurately, completely and
objectively reflect the content of the
underlying documents. Your evaluation of the
summaries should be based on your
consideration of all testimony you heard about
who prepared the summaries, the manner in
which they were prepared, and the reliability
and completeness of the underlying documents.
Despite these precautions, appellant argues that the
court abused its discretion in allowing the jury to consider the
summaries. We find his claims of error meritless.
1. Flaws in the Data
Appellant initially complains about the records on which
the summaries were based, describing the data as unreliable and
“corrupted.” As noted earlier, much of the underlying financial
information was presented via affidavits by stipulation, and
appellant explicitly waived objection to the data’s admission. At
trial, seven keepers of records testified about their companies’
business dealings with appellant and were cross-examined by defense
counsel. Nonetheless, in his brief, appellant identifies errors or
omissions contained in the affidavits and asserts that the
summaries should have been excluded under Rule 403 because of
inaccuracies in the underlying data.
To the extent that appellant is attempting to mount a
challenge to the data on which the charts are based, it is much too
late to do so. When a defendant affirmatively agrees to the
government’s proposed use of evidence, there has been a waiver and
the defendant is not entitled even to plain error review of a claim
-20-
that the evidence was inadmissible. United States v. Medina, 427
F.3d 88, 91-92 (1st Cir. 2005); United States v. Mitchell, 85 F.3d
800, 807 (1st Cir. 1996).
Appellant fares no better to the extent his claim is
based solely on the jury’s access to the summaries during
deliberations. To be sure, the underlying records were imperfect,18
and, as a result, the summaries in all likelihood did not reflect
every relevant transaction. But defense counsel explored the
deficiencies during his cross-examinations of Agent Wlodyka and the
record-keeping witnesses, and gaps or other imperfections in the
underlying data do not necessarily undermine the value of the
summary charts as pedagogical aids under Rule 611(a). In United
States v. Nivica, 887 F.2d 1110, 1125-26 (1st Cir. 1989), we noted
that the government need not prove that it has uncovered all
records relevant to a case and may summarize the data it has
managed to collect through the exercise of “due diligence.” We
continued:
If defendants possessed exculpatory records
not in the government’s files, they could have
offered them at trial or prepared their own
summary. By the same token, if there were
gaps in the charts, the defense –
knowledgeable as to [the business’s] operation
– had every opportunity to exploit them. In
the last analysis, completeness of the
underlying records was for the jury.
18
For example, at least three of the company representatives
testified that their records dating to the relevant period were
incomplete or unavailable.
-21-
Id. at 1126; see also United States v. Sawyer, 85 F.3d 713, 740
(1st Cir. 1996).
Here, too, appellant had ample opportunity to expose his
concerns to the jury, and the court’s instruction that the jury
should base its evaluation of the summaries on “the reliability and
completeness of the underlying documents” underscored the jury’s
prerogative to make its own assessment of both the supporting
material and the summaries. Moreover, the court’s instruction on
the burden of proof, see supra note 9, met appellant’s concern that
the format of the summaries would lead the jury to infer guilt
solely from the gaps in the information provided.19
Appellant’s shifting grounds of argument about the jury’s
access to the summaries, see supra at 9-10, undoubtedly entitles
him only to plain error review on this issue. Even were it a
matter of discretion, however, we think it beyond debate that the
court properly could find that the jury’s need for the summaries
was substantial. In addition, the court’s efforts to excise
prejudicial content – imposing the neutrality requirements of Rule
19
Appellant offers an undeveloped claim that Agent Wlodyka
lacked the expertise to justify the assumptions built into the
Transactions summaries about non-delivery of items to the USDC.
The links between products ordered and products delivered arose
logically, however, from the stipulated evidence. As the district
court observed, the charts suggest correlations “based on temporal
proximity, quantity, [and] product identification,” and “[t]hose
assumptions are plain for the jurors.” Moreover, the court
explicitly told Wlodyka not to express opinions about the
significance of the data on Exhibit 1. Following that admonition,
Wlodyka explained the charts but did not comment on them.
-22-
1006, though he ultimately found the summaries inadmissible under
that rule – did much to diminish any harmful impact on appellant.
Given the court’s care both in crafting the versions given to the
jury and in guiding the jury’s use of them, we conclude that
appellant was adequately protected from unfair prejudice.
2. Agent Wlodyka and the Tax Exhibits
The district court admitted the tax return exhibits
pursuant to Rule 703, which addresses the admissibility of “facts
or data” that form the basis for an expert’s opinion. When such
information is “otherwise inadmissible,” it may not be
disclosed to the jury by the proponent of the
opinion or inference unless the court
determines that [the] probative value in
assisting the jury to evaluate the expert’s
opinion substantially outweighs [its]
prejudicial effect.
Fed. R. Evid. 703. The court explained that it utilized Rule 703
for these summaries because the re-calculation of appellant’s tax
obligation that appeared in Exhibit 2 involved a “kind of expert
interpretation” and, as a result, that chart was “not, strictly
speaking, a summary of documents.”
Appellant asserts on appeal that Agent Wlodyka lacked the
necessary qualifications as an expert to present the information
contained in the Tax Set and that, consequently, the district court
should have excluded the charts under the standards governing
admissibility of expert evidence that were outlined by the Supreme
Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
-23-
and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). As this
argument was not raised in the district court, it warrants only
plain error review. United States v. Torres-Rosario, 447 F.3d 61,
67-68 (1st Cir. 2006). At any level of scrutiny, however, the
claim fails.
The only arguably “expert” evidence in the Tax Set is
Exhibit 2's calculation of the new amount of tax owed for the years
1997 to 2001, based on the income and expense totals summarized in
the two related exhibits. Wlodyka was not asked how he computed
the amount of tax due; it appeared to be understood that he simply
applied the standard tax tables to the new income totals.20 Even
on appeal, appellant’s complaint does not appear to be about those
20
One portion of testimony reflecting this assumption unfolded
as follows, with the questioning conducted by the prosecutor:
Q. And, so, have you done the same thing on each tax year
on your right-hand column where you’ve calculated – the
numbers in bold are the numbers you stuck in from
Exhibits 2a and 2b?
A. Yes.
Q. And you’ve gone through and made a calculation?
A. Yes.
Q. And then when you got a total for 1998, how much [tax
due] was reported on the tax return that was filed?
A. $22,668.
Q. And how much did you calculate as total tax based on
plugging in the numbers for 2a and 2b?
A. $55,194.41.
Q. And then did you do a subtraction to . . . find the
difference between those two numbers?
A. Yes.
Wlodyka confirmed that the same calculation was done for each of
the five years reported on the chart.
-24-
calculations; it is that the court “allow[ed] the jury to consider
the summary charts which had been prepared by one who[] does not
qualify as an expert.”
If appellant means by that complaint that Wlodyka did not
have the expertise to summarize the financial information contained
in the charts, his argument is hopeless. The invoices, checks, and
other documents were routine financial records, and creating
summaries of the data took patience but not expertise. Moreover,
even if he is challenging the agent’s credentials to do the tax
computations, that challenge would fail. An IRS agent is qualified
to express an opinion on the tax consequences of a transaction,
United States v. Mikutowicz, 365 F.3d 65, 72 (1st Cir. 2004),
particularly where, as here, the computation required no subjective
judgment. See United States v. Serafino, 281 F.3d 327, 330 (1st
Cir. 2002) (noting that an IRS agent presumably is qualified to
testify as an expert regarding the amount of an outstanding tax
liability). The district court thus fully met any gate-keeping
responsibility to ensure the reliability and pertinence of expert
testimony. See Kumho Tire Co., 526 U.S. at 141; Daubert, 509 U.S.
at 597. There was no error – plain or otherwise – in the court’s
decision to allow the jury to consider the tax exhibits.
In sum, we find no error in the court’s handling of the
summary exhibits and consequently no basis for disturbing the
jury’s verdict.
-25-
III.
The district court found that the losses attributable to
appellant’s crimes included $139,912.07 in payments made by the
USDC for goods that were never delivered and $56,884.56 in excess
payments that resulted from bid-rigging.21 Pursuant to the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A, the
court consequently imposed restitution on appellant, jointly and
severally with Schroeder, in the total amount of $196,796.63.22
Appellant argues that the court’s reliance on its own fact-finding
for the restitution amount violated his Sixth Amendment rights
under United States v. Booker, 543 U.S. 220 (2005).
We begin by noting that the government urges us either to
deem this claim waived, foreclosing any appellate consideration, or
to review it only for plain error, in which case it would be
21
The record does not indicate whether the government sought
to collect the unpaid taxes reflected in Exhibit 2 outside of the
restitution order.
22
The restitution provisions of the MVRA and the Victim and
Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, are both
enforced by means of 18 U.S.C. § 3664, which states in relevant
part:
In each order of restitution, the court shall order
restitution to each victim in the full amount of each
victim’s losses as determined by the court and without
consideration of the economic circumstances of the
defendant.
18 U.S.C. § 3664(f)(1)(A). The later-passed MVRA supplemented the
VWPA by, inter alia, making restitution mandatory for certain types
of offenses.
-26-
governed by United States v. Burnette, 423 F.3d 22 (1st Cir. 2005).
We held there that a restitution order based on judicial fact-
finding was not plain error. Id. at 25. While we agree that
appellant is entitled to no more than plain error consideration, we
have chosen to fully address Booker’s impact on restitution here
because the issue is appearing with increasing frequency in our
cases. Moreover, at least nine other circuits already have held
that judicial fact-finding on restitution is permissible under
Booker, see infra at 30, and we see no reason to delay our
agreement with their conclusion.
In the well known trio of cases culminating with Booker,
the Supreme Court established that the Due Process Clause of the
Fifth Amendment and the jury trial guarantees of the Sixth
Amendment require a jury to find beyond a reasonable doubt any fact
that increases the maximum penalty for a crime, other than the fact
of a prior conviction. See Booker, 543 U.S. at 244; Blakely v.
Washington, 542 U.S. 296, 303-04 (2004); Apprendi v. New Jersey,
530 U.S. 466, 490 (2000).23 In Blakely, the Court reviewed the
Washington state sentencing guidelines and, relying on the Sixth
Amendment, stated that “[w]hen a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not found all the
23
The Court first articulated the principle in Jones v. United
States, 526 U.S. 227, 243 n.6 (1999), where it stated: “[A]ny fact
(other than prior conviction) that increases the maximum penalty
for a crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt.”
-27-
facts ‘which the law makes essential to the punishment,’ . . . and
the judge exceeds his proper authority.” 542 U.S. at 304 (internal
citation omitted).
The Court in Booker extended this approach to the federal
Sentencing Guidelines, stating that a defendant’s Sixth Amendment
right “is implicated whenever a judge seeks to impose a sentence
that is not solely based on ‘facts reflected in the jury verdict or
admitted by the defendant.’” 543 U.S. at 232 (quoting Blakely, 542
U.S. at 303). The Court also reiterated the basic principle:
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
543 U.S. at 244.
The question before us is whether this Sixth Amendment
right to have certain facts found by a jury beyond a reasonable
doubt requires that the jury, rather than the judge, calculate the
loss underlying a restitution order.24 A literal application of the
24
Although restitution is “criminal” in many senses, see
United States v. Rostoff, 164 F.3d 63, 71 (1st Cir. 1999) (“The
nature of restitution is penal and not compensatory.”); United
States v. Savoie, 985 F.2d 612, 619 (1st Cir. 1993) (noting that
restitution imposed under the VWPA “is not a civil affair; it is a
criminal penalty meant to have deterrent and rehabilitative
effects”), we note that some courts have concluded that restitution
is not the sort of “punishment” to which the Sixth Amendment
applies. See, e.g., United States v. Visinaiz, 428 F.3d 1300, 1316
(10th Cir. 2005); United States v. Carruth, 418 F.3d 900, 904 (8th
Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir.
-28-
Supreme Court’s language might suggest the answer would be an
affirmative. If “the question is whether the verdict ‘alone’
allows the judge to impose restitution with no additional finding
of fact[,] [o]bviously, it doesn’t.” United States v. Leahy, 438
F.3d 328, 342 (3d Cir. 2006) (en banc) (emphasis in original)
(McKee, J., concurring in part and dissenting in part). The
statutory procedure for fixing a restitution amount calls for fact-
gathering by the probation officer after conviction, 18 U.S.C. §
3664(a),25 with any disputes to be “resolved by the court by the
preponderance of the evidence,” id. at § 3664(e). The court is
then directed to order restitution “in the full amount of each
victim’s losses as determined by the court.” Id. at 3664(f)(1)(A).
Thus, it can reasonably be argued that the “maximum” amount of
restitution based solely on the fact of conviction is zero dollars.
2005). Such a view would, of course, render the Booker line of
cases inapplicable to restitution. We do not choose to evaluate
that alternate rationale here. Instead, for the reasons stated
herein, we conclude that the reasoning of Booker does not require
a jury to find the facts underlying a restitution order.
25
Section 3664(a) states in relevant part:
For orders of restitution under this title, the
court shall order the probation officer to obtain and
include in its presentence report, or in a separate
report . . . information sufficient for the court to
exercise its discretion in fashioning a restitution
order. The report shall include, to the extent
practicable, a complete accounting of the losses to each
victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic
circumstances of each defendant.
-29-
Because any increase in that amount depends upon additional facts,
one could argue – as did the dissenters in the Third Circuit’s en
banc decision on this issue – that Booker requires such findings to
be made by a jury. Leahy, 438 F.3d at 344 & n.15 (McKee, J.,
concurring in part and dissenting in part) (concluding that a
scheme allowing judge-made findings on restitution runs “afoul of
the Sixth Amendment” because “[r]estitution in any amount greater
than zero clearly increases the punishment that could otherwise be
imposed”).
While we understand the logic behind this approach, we
think it ignores important considerations and, like all of the
other circuits to consider this question, we conclude that Booker
and its antecedents do not bar judges from finding the facts
necessary to impose a restitution order. See United States v.
Williams, 445 F.3d 1302, 1310-11 (11th Cir. 2006); United States v.
Reifler, 446 F.3d 65, 118-20 (2d Cir. 2006); Leahy, 438 F.3d at
337-38; United States v. Miller, 419 F.3d 791, 792-93 (8th Cir.
2005); United States v. Sosebee, 419 F.3d 451, 454, 461 (6th Cir.
2005); United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005)
(per curiam); United States v. Bussell, 414 F.3d 1048, 1060 (9th
Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir.
2005); United States v. Wooten, 377 F.3d 1134, 1144-45 (10th Cir.
2004).
-30-
The statutory restitution scheme is materially different
from the sentencing regimens at issue in Blakely and Booker. Under
the latter, a judge determines the appropriate penalty from within
a specified range, based on a variety of facts and factors that are
not necessarily predetermined by the jury’s finding of guilt. For
restitution, however, the jury’s finding of guilt leads to only one
outcome; in every case in which such punishment is imposed, “the
jury’s verdict automatically triggers restitution in the ‘full
amount of each victim’s losses,’” Leahy, 438 F.3d at 338 n.11.
Post-conviction judicial fact-finding to determine that amount “by
no means impos[es] a punishment beyond that authorized by jury-
found or admitted facts,” or “beyond the ‘statutory maximum’ as
that term has evolved in the Supreme Court’s Sixth Amendment
jurisprudence.” Id. at 336-37 (noting that the “relevant
‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may impose based solely on facts reflected in the jury
verdict or admitted by the defendant”); see also Reifler, 446 F.3d
at 119. As the Third Circuit majority in Leahy stated in its
response to the dissenters:
[T]here is no restitution range . . . that
starts at zero and ends at “the full amount of
each victim’s losses”; rather, the single
restitution amount triggered by the conviction
under the MVRA, or permitted under the VWPA,
is the full amount of loss.
. . . [W]hen the court determines the amount
of loss, it is merely giving definite shape to
-31-
the restitution penalty born out of the
conviction.
438 F.3d at 337-38 (footnote omitted).
Hence, we agree with the other courts that have concluded
that the Booker-Blakely principles have “no application” to orders
of restitution. Reifler, 446 F.3d at 118; see also, e.g.,
Williams, 445 F.3d at 1311; Sosebee, 419 F.3d at 454; Wooten, 377
F.3d at 1144 n.1.
IV.
We hold that the district court appropriately exercised
its discretion in allowing the jury to consider the government’s
summary charts during its deliberations under Rules of Evidence
611(a) and 703, but we clarify that the prior introduction of the
underlying documents would not have barred the court from admitting
the summaries into evidence under Rule 1006. We further hold that
the court’s restitution order did not violate appellant’s Sixth
Amendment jury trial right. Judicial fact-finding on the amount of
loss is permissible under Booker because it does not increase the
“maximum” punishment beyond that authorized by jury-found facts.
For the foregoing reasons, we affirm both the judgment of
conviction and the sentence imposed.
So ordered.
-32-