Brief + Proposed Exhibit (Summary Chart)

Case 1:19-cr-00117-RJJ ECF No. 37 filed 08/01/19 PageID.
224 Page 1 of 9
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff, No. 1:19-CR-117
v. Hon. Robert J. Jonker

Chief U.S. District Judge
LARRY CHARLES INMAN,
Defendant.
_________________________________/
BRIEF IN SUPPORT OF GOVERNMENT’S MOTION IN LIMINE TO

ADMIT SUMMARY CHARTS OF TEXT MESSAGE EVIDENCE
INTRODUCTION
The United States has moved this Court for a pretrial order authorizing the admission of
10 summary charts containing certain text messages exchanged between Defendant Inman and
several anticipated government witnesses. The text messages were obtained from Inman’s
mobile phone when the FBI executed a federal search warrant at Inman’s residence, where the
phone was located. The text messages were retrieved from the phone using a forensic tool that
results in a voluminous extraction report. The government intends to present the relevant text
messages in summary charts to: (1) efficiently admit and publish to the jury only the relevant,
admissible messages; (2) exclude from evidence thousands of other irrelevant text messages; and
(3) speed up the presentation and review of text message evidence at trial.
RELEVANT BACKGROUND
The Indictment charges Inman with attempted extortion under color of official right
(count 1), solicitation of a bribe (count 2), and making a false statement to the Federal Bureau of
Investigation (count 3). (R.1: Indictment, PageID.2-3.) Counts 1 and 2 relate to actions taken
Case 1:19-cr-00117-RJJ ECF No. 37 filed 08/01/19 PageID.225 Page 2 of 9
by Inman that culminated in a series of text messages he sent to representatives of the Michigan
Regional Council of Carpenters and Millwrights (“MRCCM”) between June 3, 2018, and June 5,
2018. Those text messages illustrate that Inman offered to vote “No” on the proposed repeal of
the prevailing wage initiative if the MRCCM provided him with more campaign contributions
and if other trade associations contributed $30,000 to his campaign. Those text messages also
provide evidence that Inman knowingly and willfully lied to the FBI when he was asked whether
he communicated with MRCCM to solicit campaign contributions before his vote on the
prevailing wage initiative petition.
Inman exchanged many other text messages with witnesses and other individuals over the
time period relevant to this case. During the investigation, the FBI’s forensic examination of
Inman’s mobile phone resulted in a voluminous and comprehensive forensic report which
categorizes items seized from Inman’s phone. The forensic report consists of nearly 2,500
pages of information, including thousands of text messages and other information seized from
the phone. Using the text message evidence listed in the forensic report, the government has
prepared summary charts listing only the most relevant text messages pertinent to the charged
offenses. The proposed summary charts are attached hereto as Proposed Government Trial
Exhibits 9-18. The individual summary charts include text messages between Inman and 10
witnesses the government intends to call at trial. The summary charts were produced to Inman
on July 11, 2019, and the text messages were produced to Inman in June 2019.
LEGAL ARGUMENT
The Sixth Circuit has a long and well-established practice of allowing the use of
summary charts in criminal cases, both under the authority of Rule 1006 of the Federal Rules of
2
Evidence and under common law principles of Rule 611. See United States v. Paulino, 935
F.2d 739, 753 (6th Cir. 1991); United States v. Scales, 594 F.2d 558 (6th Cir. 1979). A ruling
on the admissibility of summary charts under Rule 1006 is a matter of discretion for the trial
court. Paulino, 935 F.2d at 753. 1
Summary charts are admissible under Rule 1006 under the following circumstances: (1)
the underlying documents are so voluminous that they cannot be conveniently examined in court;
(2) the proponent of the summary must have made the documents available for examination or
copying at a reasonable time and place; (3) the underlying documents must be admissible in
evidence; (4) the summary must be accurate and non-prejudicial; and (5) the summary must be
properly introduced through the testimony of a witness who supervised its preparation. See
United States v. Moon, 513 F.3d 527, 545 (6th Cir. 2008) (health care fraud case); United States
v. Jamieson, 427 F.3d 394, 409 (6th Cir. 2005) (viatical fraud case). When a summary chart is
admitted under Rule 1006, no contemporaneous jury instruction is required. United States v.
Bray, 139 F.3d 1104, 1111 (6th Cir. 1998) (“it is generally inappropriate to give a limiting
instruction for a Rule 1006 summary”).
A. The Voluminous Requirement
Under Rule 1006, “the documents must be sufficiently numerous as to make
comprehension difficult and inconvenient.” United States v. Bray, 139 F.3d 1104, 1109 (6th
Cir. 1998); United States v. Seelig, 622 F.2d 207, 214 (6th Cir. 1980). See also United States v.
1
The Sixth Circuit has recognized a hybrid form of evidentiary chart: Secondary-evidence
summaries that are a combination of 1006 summaries and pedagogical devices. See United States
v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998). Secondary-evidence summaries are admitted in
evidence not in lieu of the evidence they summarize but in addition thereto. To the extent this
Court finds the proposed summary charts are akin to secondary-evidence summaries, they are
admissible in evidence with an appropriate jury instruction.
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Scales, 594 F.2d 558, 562 (6th Cir. 1979). In upholding the summary charts in the Bray case,
the Sixth Circuit noted that the jury would have had to review approximately 700 postal forms.
Similarly, the Fifth Circuit has upheld the admission of summary charts based on “hundreds” of
underlying exhibits, by noting, “[e]xamination of the individual records would have been
burdensome and time-consuming without the aid of summaries.” United States v. Duncan, 919
F.2d 981, 988 (5th Cir. 1990) (insurance fraud).
In this case, the forensic report is nearly 2,500 pages long and contains thousands of text
messages to numerous individuals in chronological order when the messages were sent and
received on the phone. Clearly, effective and efficient examination of only the relevant and
admissible text messages within the forensic report would not be possible and would not be an
efficient use of the allotted trial schedule.
B. The Production of Underlying Documents Requirement
The United States produced the forensic report to Inman on June 7, 2019. The proposed
summary charts were provided to Inman on July 12, 2019. Inman has had ample time to
examine the contents of the document and compare the text messages retrieved from the phone
to the proposed summary charts containing those messages. To date, he has not provided the
government with any objections to the content of the summary charts.
C. The Underlying Documents Admissibility Requirement
The forensically-extracted text messages from Inman’s mobile phone are admissible.
The materials upon which a Rule 1006 summary is based need not themselves be admitted into
evidence, they need only be “admissible” under the Federal Rules of Evidence. United States v.
Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999); and United States v. Rizk, 660 F.3d 1125,
1131 (9th Cir. 2011).
The first step for the admission of the summaries of the text messages from the Inman’s
phone is to show that the text messages are authentic. Under Federal Rule of Evidence 901(a),
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“[t]he requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” United States v. Fults, 639 F. App’x 336, 373 (6th Cir. 2016) (quoting
United States v. Jones, 107 F.3d 1147, 1150 (6th Cir. 1997).
The summaries consist of text messages obtained during a forensic extraction of data
from Inman’s phone conducted by a Senior Computer Forensics Examiner with the FBI. At
trial, the government will offer testimony of an FBI special agent involved with executing the
search warrant for Inman’s mobile phone and who will testify that Inman acknowledged that the
phone he possessed inside his residence at the time of the search was in fact his mobile phone.
Additionally, if necessary, the Senior Computer Forensics Examiner will testify about the
forensic extraction process to explain how that process makes an exact copy of the text messages
existing on the phone at the time of the search. This testimony is sufficient to establish that the
messages in the summary charts are what the government asserts: text messages that Inman sent
to or received from the witnesses on his mobile phone. As to any incoming text messages set
forth in the summaries, the author of those messages have been subpoenaed to
appear as a witness at trial to testify concerning their text message communications with Inman.
Moreover, Inman’s public comments to the media after he was indicted, which have been posted
on the Internet by several media outlets, confirm that Inman was using the mobile phone that was
searched and that he authored the text messages referenced in the indictment. Thus, the
authenticity of the text messages seized from his mobile phone cannot reasonably be disputed.
In order to admit the summaries, the government must also show that the text messages
are probative or relevant to the issues in the case. The text messages in the summary charts
show that Inman was very concerned about the impending June 2018 vote on the prevailing
wage initiative petition, how it would affect his chances for re-election in the fall of 2018, and
his ability to raise money to fund his re-election campaign. The messages provide context for
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the jury to understand and evaluate perhaps the most important text messages at issue in the case:
the text messages he sent to representatives of the MRCCM on June 3-5, 2018, which are
specifically referenced in the indictment and are included in the proposed summary charts. The
text messages clearly make a fact at issue – whether Inman corruptly solicited or attempted to
extort money from the MRCCM in exchange for voting “No” on the initiative – more or less
probable. Moreover, because Inman has filed a Rule 12.2 notice of an intent to introduce expert
evidence concerning his mental condition at the time of the offense, to the extent the Court
admits such evidence, the proffered text messages allow the jury to determine whether Inman
was cognitively impaired during the relevant time period. Accordingly, all of the proffered text
messages are relevant and the remaining irrelevant text messages from the forensic report are
properly excluded from the summary charts.
Finally, the government must show that the text messages are not hearsay. The majority
of the text messages set forth in the summaries are outgoing messages authored by Inman. As a
result, such messages constitute an admission of a party opponent admissible under Rule
801(d)(2)(A). See United States v. Ellis, 2013 WL 2285457, *1 (E.D. Mich. May 23, 2013).
Some of the proposed summary charts contain incoming text messages received by
Inman from others who will be witnesses at trial. Some of these incoming messages are simply
questions. For example, text messages with an IBEW representative include an incoming text
asking if “there was any information I could get for you about the prevailing wage issue that you
may be interested about?” (Proposed Trial Ex. 11, text no. 1). Similarly, text messages
between Inman and a political consultant includes messages from the consultant asking, “[C]ould
I come visit with you in your office tomorrow to chat about prevailing wage?” and “How’s your
schedule today big guy?” (Proposed Trial Ex. 16, text nos. 1 and 4). These, and other similar
questions, are not hearsay because “questions and commands are not statements covered under
the hearsay rule.” Ellis, 2013 WL 2285457 at *2 (quoting United States v. Wright, 343 F.3d
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846, 865 (6th Cir. 2003)). See also United States v. Rodriguez-Lopez, 565 F.3d 312, 314-15 (6th
Cir. 2009).
Other statements reflected in the incoming text messages are not hearsay because they are
not being offered by the government for the truth of the matter asserted. Ellis, 2013 WL
2285457 at *2; United States v. Gonzalez, 560 F. App’x. 554, 558 (6th Cir. 2014) (quoting
Rodriguez-Lopez, 565 F.3d at 314.) Rather, they are simply provided for context to allow the
jury to understand Inman’s statements in his text messages. For example, when the consultant
texted Inman: “You’re gonna need dough my man to hold on to yours [meaning his seat],” the
government is offering the text message solely to show that the statement was made to Inman
and to give context for Inman’s response to those words. It would be unfair to Inman and
unhelpful to the jury to only seek admission of Inman’s statements without the available and
relevant context provided by the messages sent by the person to whom Inman was
communicating at that time. Doing so would be akin to attempting to admit prior testimony
against a defendant without providing the exact question that preceded the defendant’s
testimony. However, if there are no relevant contextual messages sent to Inman before or after
he sent his text message (i.e., Inman sent a message to a witness who had not sent Inman a
message that prompted Inman’s text), only Inman’s text messages have been provided in the
proposed summary charts because there are no available, relevant messages from the other party.
For all of those reasons, the text messages in the summary charts constitute admissible
evidence at trial.
D. The Accurate and Non-Prejudicial Requirement
Rule 1006 summary charts should not include “the conclusions of or inferences drawn by
the proponent of the chart.” United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998). Rule
1006 summary charts that “reflect and/or consolidate information contained in underlying
documents” are not “argumentative.” United States v. Younes, 194 F. App’x 302, 311-12 (6th
7
Cir. 2006) (citing United States v. Bray, 139 F.3d 1104, 1109 (6th Cir. 1998)).
In this case, the government has designed the charts to document the pertinent, actual text
messages found on Inman’s phone in a fair and even-handed manner and exactly as they existed
on Inman’s phone (including any typographical and grammatical errors). Although the charts
obviously do not contain every text message sent by Inman or exchanged with the witnesses
(which would defeat the purpose of a summary chart), they do contain a word-by-word recitation
of the pertinent messages seized from his phone during the forensic extraction. The text
messages in the chart are not abbreviated, summarized, or argumentative. Finally, the headings
of the summary chart, which clearly indicate the date, time, sender, and recipient of each text
message, do not in any way attempt to influence or persuade the jury. The government’s
assignment of a “number” to each message in the far left column is simply for ease of reference
at trial to help the witness, the jury, the parties, and this Court quickly find a particular message
on the chart and to facilitate a clear record of the proceedings.
The proposed summary charts were disclosed to Inman on July 11, 2019, giving him
ample time to compare the charts to the voluminous forensic report produced to him on June 7,
2019, review the accuracy of the summary charts, and otherwise lodge any specific objections.
To date, Inman has not responded to or identified any objections to the proposed charts. To the
extent there are additional relevant contextual messages that Inman believes should be included
on the summary chart, the government will consider adding those messages if they are in fact
relevant, admissible text message evidence.
E. The Knowledgeable Witness Requirement
At trial, the government intends to call a special agent of the FBI who is familiar with the
criminal investigation of Inman and the forensic report containing the text message evidence, and
who assisted with the creation of the summary charts. This witness is expected to testify that
the charts accurately depict the selected text messages obtained from Inman’s phone.
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CONCLUSION
For the reasons set forth above, the United States respectfully requests that this Court
issue a pretrial order authorizing the admission of the attached summary charts at trial.
Respectfully submitted,
ANDREW BYERLY BIRGE

United States Attorney
Dated: August 1, 2019 /s/ Ronald M. Stella

CHRISTOPHER M. O’CONNOR
RONALD M. STELLA
Assistant United States Attorneys
United States Attorney’s Office
P.O. Box 208
Grand Rapids, MI 49501-0208
(616) 456-2404
ron.stella@usdoj.gov
christopher.oconnor@usdoj.gov
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Case 1:19-cr-00117-RJJ ECF No. 37-1 filed 08/01/19 PageID.233 Page 1 of 31
PROPOSED TRIAL
EXHIBITS 9-18
GOVERNMENT
EXHIBIT
9
1:19-CR-117
2
Jim Kirsch
Number Date/Time From To Text Message Content
1 06/03/2018 J. Kirsch L. Inman I am hearing Prevailing Wage vote on Wednesday. Thanks for
your continued support on keeping PW. We will need you this
9:32 a.m. weekend week
Jim Kirsch
2 06/03/2018 L. Inman J. Kirsch We all need some more help! Carpenters have been good to me,
where are the rest of the trades on checks? We only have 12,
10:01 a.m.
people to block it. Lisa Canada said all 12 will get $30,000 each to
help there campaigns. That did not happen, we will get a ton of
pressure on thst vote, Leonard and Chatfield will go to the
longest neck hold on this one. I have heard most got $5,000, not
$30,000. Its not worth losing assignments and staff for $5,000, in
the end. They will give you the check back. I am not sure you can
hold 12 people for the only help of $5,000. My suggestion is you
need to get people maxed out , on Tuesday, I will do my best to
hold. Chatfield will pull assignments for next term on this vote.
You have no idea the pressure on this one for Leonards attorney
general race , to pull this off. People will not go down for $5,000,
not that we don’t appreciate it. Get with the all the trades by
Monday , I would suggest doubling what you have given on
GOVERNMENT
EXHIBIT
10
1:19-CR-117
Tuesday, asap, we never had this discussion, get with Lisa

Canada, L
3 06/04/2018 L. Inman J. Kirsch I will text you tomorrow to make sure we have a solid 12 no votes
to block prevailing wage , Larry
5:37 p.m.
4 06/05/2018 L. Inman J. KirschHi Jim, how are you! I have Breakfast event on Wed morning at
Karobe , Governors room , 7:30am to 9am , hope you can make it
7:49 a.m.
:) and see if there are checks you can get ,thanks ! Larry Inman
5 06/05/2018 J. Kirsch L. Inman Ok
8:46 a.m.
6 06/05/2018 L. Inman J. Kirsch Hi Jim. My event is next Wed. June 23th, Larry
10:48 a.m.
2
7 06/06/2018 L. Inman J. Kirsch So sorry Jim, Pagel dropped, Canfield dropped , Lucudio dropped
, LaSota dropped, they had their 55 votes , they need someone to
4:24 p.m.
save Bellino who was going yes, but to save his seat they needed
one more to put bellino as a no to save his seat. My district did
not care about the vote, so, it was passing , and needed me to
save Bellino. Without my vote Bellino would have killed his seat,
but they still had 55 votes, our list mostly all flipped today on the
floor. A shit show, sorry I could not hold them. Larry
3
GOVERNMENT
EXHIBIT
11
1:19-CR-117
2
3
GOVERNMENT
EXHIBIT
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1:19-CR-117
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EXHIBIT
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EXHIBIT
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3
4
5
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EXHIBIT
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EXHIBIT
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3
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GOVERNMENT
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GOVERNMENT
EXHIBIT
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1:19-CR-117

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Case 1:19-cr-00117-RJJ ECF No. 37 filed 08/01/19 PageID.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Plaintiff, No. 1:19-CR-117

v. Hon. Robert J. Jonker

BRIEF IN SUPPORT OF GOVERNMENT’S MOTION IN LIMINE TO

prevailing wage initiative petition.

court. Paulino, 935 F.2d at 753. 1

instruction for a Rule 1006 summary”).

A. The Voluminous Requirement

Under Rule 1006, “the documents must be sufficiently numerous as to make

F.2d 981, 988 (5th Cir. 1990) (insurance fraud).

efficient use of the allotted trial schedule.

B. The Production of Underlying Documents Requirement

government with any objections to the content of the summary charts.

C. The Underlying Documents Admissibility Requirement

1131 (9th Cir. 2011).

“[t]he requirement of authentication or identification as a condition precedent to admissibility is

properly excluded from the summary charts.

D. The Accurate and Non-Prejudicial Requirement

on the chart and to facilitate a clear record of the proceedings.

relevant, admissible text message evidence.

E. The Knowledgeable Witness Requirement

ANDREW BYERLY BIRGE

Dated: August 1, 2019 /s/ Ronald M. Stella

Number Date/Time From To Text Message Content

Number Date/Time From To Text Message Content

Tuesday, asap, we never had this discussion, get with Lisa

Number Date/Time From To Text Message Content

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