United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
reasons provided below, the Court denies
Defendant's Motion for a New Trial .
December 12, 2018, the Government charged Defendant in an
11-count Superseding Indictment. Count One alleged that
Defendant conspired to defraud the Government by impeding,
impairing, or obstructing the collection of taxes, in
violation of 18 U.S.C. § 371. Counts Two through Five
alleged that Defendant prepared and filed false tax returns,
in violation of 26 U.S.C. § 7206(1). Counts Six through
Eleven alleged that Defendant assisted in the preparation of
false tax returns, in violation of 26 U.S.C. § 7206(2).
The Court held a jury trial on February 4-8, 2019, and the
jury convicted Defendant on all counts. Defendant later filed
a Motion for a New Trial .
permits the Court to “vacate any judgment and grant a
new trial if the interest of justice so requires.” Fed.
R. Crim. P. 33(a). Rule 33 “goes to the fairness of the
trial rather than the question of guilt or innocence.”
United States v. McRae, 795 F.3d 471, 481 (5th Cir.
2015). “Rule 33 motions are disfavored and reviewed
with great caution.” United States v. Pratt,
807 F.3d 641, 645 (5th Cir. 2015). The Court has “wide
discretion, ” United States v. Mahmood, 820
F.3d 177, 190 (5th Cir. 2016), but it must exercise its
discretion “with caution” because “the
power to grant a new trial . . . should be invoked only in
exceptional cases.” United States v.
Scroggins, 485 F.3d 824, 831 (5th Cir. 2007).
“Generally, . . . the trial court should not grant a
motion for new trial unless there would be a miscarriage of
justice or the weight of the evidence preponderates against
the verdict.” United States v. Wall, 389 F.3d
457, 466 (5th Cir. 2004).
Summary Witness and Charts
argues that the Court erred by permitting the Government to
introduce the summary witness testimony of IRS Special Agent
Bradley Luker. Defendant contends that Luker improperly
summarized the testimony of other witnesses, and that Luker
provided expert opinions, despite not being designated as an
is an established tradition, both within this circuit and in
other circuits, that permits a summary of evidence to be put
before the jury with proper limiting instructions.”
United States v. Griffin, 324 F.3d 330, 349 (5th
Cir. 2003). Such testimony is allowed in “limited
circumstances in complex cases, ” United States v.
Baker, - F.3d -, 2019 WL 1873306, at *4 (5th Cir. Apr.
26, 2019), to “aid the jury in its examination of the
evidence already admitted.” Griffin, 324 F.3d
at 349. For example, summary witnesses “may be
appropriate for summarizing voluminous records, ” but
they are “not to be used as a substitute for, or a
supplement to, closing argument.” Baker, 2019
WL 1873306 at *4. “To minimize the danger of abuse,
summary testimony must have an adequate foundation in
evidence that is already admitted, and should be accompanied
by a cautionary jury instruction. Moreover, full
cross-examination and admonitions to the jury minimize the
risk of prejudice.” Id. at *5.
was a complex case meriting the introduction of summary
evidence. The Superseding Indictment included eleven
different counts. In Count 1, the Government charged
Defendant with conspiring to defraud the United States by
impeding, impairing, obstructing, or defeating the Internal
Revenue Service's ability to collect taxes, in violation
of 18 U.S.C. § 371. In Counts 2-6, the Government
charged Defendant with willfully submitting tax returns with
false information, in violation of 26 U.S.C. § 7206(1).
In Counts 7-11, the Government charged Defendant with aiding
or assisting in the preparation or presentation of tax
returns containing false information, in violation of 26
U.S.C. § 7206(2). Tax cases are generally tedious,
document-intensive affairs. This one was no different. The
case involved accounting concepts, nuances of tax law, and
business arrangements outside the experience of most jurors.
There were dozens of exhibits consisting of hundreds of
pages. Even the Court had trouble following the evidence at
some points during the trial.
Counts 2-6 were predicated upon Defendant's failure to
report income received from his accounting firm in the form
of expense reimbursements. The Government presented
voluminous evidence demonstrating that many of these payments
were not, in fact, reimbursements. Rather, Defendant
submitted fraudulent reimbursement requests, effectively
stealing from his partners. The Government introduced several
years' worth of Defendant's credit card statements,
encompassing thousands of individual charges. The Government
cross-referenced those statements with Defendant's
reimbursement requests and demonstrated that he received
“reimbursement” for charges made by his wife and
son for goods and services unrelated to the firm's
business. For example, Defendant received reimbursement for
dating websites, iTunes charges, a medical concierge service,
his son's legal fees related to a divorce, dental work,
and veterinary services, among many others. While the general
theory underlying this aspect of the Government's case
was simple - Defendant stole from his partners and didn't
declare the stolen funds as income - the evidence was
voluminous and required connecting the dots among various
documents and witnesses.
respect, Agent Luker's testimony was necessary and
helpful to the jury. It “consisted of reading the
contents of exhibits and sorting through the evidence to show
how the documents related to each other and to charges in the
indictment.” Id. at *6. Luker
“highlighted some key pieces of evidence, ” and
his “testimony did not draw inferences for the jury,
was not wholly argumentative, and did not serve as a
substitute for closing argument.” Id. For
these reasons, it was appropriate summary witness testimony.
is correct that Luker restated the prior testimony of
previous witnesses on numerous occasions, particularly the
testimony of Frank McWhorter concerning the nature of
Defendant's credit charges and whether they were
reimbursable as business expenses. But “[a]s a summary
witness, an IRS agent may testify as to the agent's
analysis of the transaction which may necessarily stem from
the testimony of other witnesses.” United States v.
Moore, 997 F.2d 55, 58 (5th Cir. 1993). To an extent, an
agent providing summary testimony can not avoid referring to
prior witnesses' testimony. While it is impermissible for
“one prosecution witness merely to repeat or paraphrase
the in-court testimony of another as to ordinary, observable
facts, ” this was not such a case. United States v.
Castillo, 77 F.3d 1480, 1500 (5th Cir. 1996).
Luker's investigation was built on information gleaned
from interviews with witnesses such as McWhorter, and,
therefore, it was necessary to refer to some prior testimony
when explaining the Government's investigation and the
source of figures in its summary charts.
also contends that Luker provided expert testimony, despite
not being designated as an expert witness. Defendant has not
identified any specific opinions that were improper, and the
Court declines to guess. However, the record demonstrates
that Luker simply summarized the evidence which demonstrated
that Defendant's tax returns were false. He did not
express his opinion on a material element of the charged
crimes. Rather, he recounted the timeline of his
investigation and referred to previously admitted documents
and testimony which supported the Government's charges.
the Court erred in admitting Luker's testimony, the error
was harmless. The evidence of Defendant's guilt was
overwhelming, and the Court doubts that Luker's testimony
made a difference one way or the other. Defendant has not
demonstrated that Luker's testimony “had a
substantial and injurious effect or influence in determining
the jury's verdict.” Baker, 2019 WL
1873306 at *4. Regardless, significant curatives were
present: Luker's testimony had an adequate foundation in
the evidence already admitted, Defendant's counsel had an
opportunity to cross-examine Luker, and the Court gave a
limiting instruction regarding summary evidence. Id.
at *6. Additionally, Defendant has not demonstrated that any
of Luker's testimony was misleading or erroneous. See
Griffin, 324 F.3d at 350.
despite Defendant's repeated assertions to the contrary
in briefing, Luker was not presented as a rebuttal witness.
The Government put him on as the final witness in its
case-in-chief, and Defendant had an opportunity to present
his own evidence regarding the topics covered in Luker's
testimony. It was not a given that Defendant would rest
without presenting any evidence. In fact, he provided a
witness list and designated an expert. Therefore, Luker's
testimony was not impermissible “rebuttal testimony ...