The opinion of the court was delivered by: Vaughn R Walker United States District Chief Judge
By order filed May 20, 2005 (Doc #63), the court addressed a dispute that arose between the parties regarding the practical effect of the court's August 27, 2004, suppression order. Doc #38. In the May 20, 2005, order, the court excluded from evidence "Schedule I" exhibits obtained through searches and reserved decision on certain "Schedule II" and all "Schedule III" exhibits pending further briefing by the parties. Through this supplemental briefing, the parties largely resolved the remaining disputes. Defendant also moved to exclude government Exhibit 216 under FRE 803(6), 902(11), 1002, 1003, 1004, and 1006. The court heard argument on these matters on July 12, 2005. Having reviewed the parties supplemental briefing on the Schedule II and III exhibits, as well as the parties' submissions on defendant's motion to exclude Exhibit 216, the court will address each in turn.
This court's August 27, 2004, order suppressed the fruits of a search conducted by the government pursuant to a facially invalid warrant. Doc #38 (the "suppression order"). The government subsequently indicated its intent to proceed to trial and proposed to present about 250 exhibits. Defendant challenged the admissibility of most of these exhibits. Following an evidentiary hearing on March 28, 2005 (the "hearing"), the court ruled on the admissibility of the government's exhibits in a May 20 2005, order. Doc #63. For purposes of clarity, the court adopted the government's helpful categorization of the documents into three "schedules." Schedule I contains "exhibits obtained from searches"; Schedule II consists of "exhibits not obtained from searches"; and Schedule III consists of "exhibits obtained from searches but also * * * disclosed by [former Golden State Lumber CFO] Jim O'Brien or attached to civil depositions." In the May 20, 2005, order, the court ruled that all Schedule I evidence, as well as some Schedule II evidence, was tainted by the government's unlawful search and should be excluded from trial. Doc #63. The court found many of the remaining Schedule II exhibits admissible under various exceptions to the "fruit of the poisonous tree" doctrine. Id. Finally, the court reserved decision as to Schedule II exhibits 202-204 and all Schedule III exhibits, ordering the government to provide supplemental briefing establishing an independent source for these exhibits. Id.
A. Exhibits 202, 203, 204
The government filed its supplemental memorandum on June 16, 2005 (Doc #65), in which it established the independent source for Schedule II exhibits 202-204. Defendant's reply concedes the independent source and withdraws the request to exclude these exhibits. Doc #68. Accordingly, the court finds that exhibits 202-204 are admissible at trial.
With regard to the Schedule III exhibits, the government's supplemental memorandum changes course somewhat. Rather than provide an independent source for each of the Schedule III exhibits previously listed (Exhibits 61, 65, 73, 81-100, 115, 117, 123, 138, 174-175, 177, 187, 189, 217-218, 221 and 223b), the government proposes an "Amended Schedule III," which seeks to offer into evidence only a fraction of the previously proposed Schedule III exhibits, namely Exhibits 115, 117, 123*fn1 , 218, 221 and 223b. Doc #65.
Defendant argues that the court should exclude from evidence all Schedule III exhibits omitted from the government's Amended Schedule III "[b]ecause the government has abandoned any submission supporting them * * *." According to the government, these exhibits are being withdrawn because identical copies are contained in Exhibit 216, which this court has not excluded. The government thus objects to the exclusion of these exhibits, inasmuch as they are part of Exhibit 216. Because the government is not seeking to offer Exhibits 61, 65, 73, 81-100, 138, 174, 175, 177, 187, 189 and 217 into evidence, the court need not determine their admissibility. The court addresses the admissibility of Exhibit 216 infra.
On the other hand, defendant concedes that the government has demonstrated that Exhibits 218, 221 and 223b each derive from an independent source and withdraws his Fourth Amendment objections to these exhibits. Doc #68 at 3. Accordingly, the court deems Exhibits 218, 221 and 223b admissible.
The court now turns to the parties' dispute over the admissibility of Schedule III Exhibits 115, 117 and 123. In its May 20, 2005, order, the court directed the government to identify both the independent source for the identity of the exhibit as well as evidence establishing that the exhibits in fact were obtained from third parties. See Doc #63 at 9. The court found the government's Schedule III exhibits suspect, in part, where the government provided "no references at all to facts in evidence that establish that the exhibits were summonsed from the third parties listed on Schedule III." Id. Although the court suggested that an appropriate submission could "take the form of a table," the court reiterated that such a table must identify both the "source for the identity of the exhibit" and "evidence * * * establishing how the exhibit was independently obtained." Id. (emphasis added). With regard to Exhibits 115, 117 and 123, the government's Amended Schedule III table properly identifies the independent source for the identity of the exhibit. Yet the government merely asserts that it summonsed the exhibits from a third party (American Express); once again, no evidence is referenced establishing that the exhibits were in fact summonsed from American Express.
On July 5, 2005, the government addressed this deficiency by filing with this court a copy of a letter to American Express with the government's summons and a copy of a letter received from American Express enclosing the documents. Doc #70. Although the government has not provided a copy of the actual summons, these letters are sufficient to show that the government obtained American Express records from a third party. At the hearing on July 12, 2005, the government represented that Exhibits 115, 117 and 123 consist of documents obtained from American Express and do not contain any documents improperly seized. Based on the ...