Opinion
20-cr-00266-JST-1
10-09-2023
UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL BRENT ROTHENBERG, Defendant.
ORDER RE: TRIAL EXHIBITS Re: ECF No. 282
JON S. TIGAR UNITED STATES DISTRICT JUDGE
The Court now rules as follows on the objections to trial exhibits submitted by the parties on October 6, 2023, ECF No. 282:
Exh. No.
Description
Objection
Ruling
525
Chart showing amounts invested in each fund by outside investors, the amount invested by the funds, distributions to investors, and funds fair market value
“Pedagogical evidence”
No ruling necessary in light of government's representation that it will use this document solely to refresh recollection
528
Email dated August 19, 2015 from Katie Fanelli to multiple persons concerning trip to China
Hearsay
“Under the Deepwater Horizon [In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2012 WL 85447 (E.D. La. Jan. 11, 2012)] framework, an email is an admissible business record only if: (1) it was sent or received contemporaneously with the event(s) described in the email; (2) it was sent by someone with knowledge of the event(s) documented in the email; (3) it was sent or received in the course of a regular business activity; (4)
it is ‘the producing defendant's regular practice to send or receive emails that record the type of event(s) documented in the email[;]' and (5) a custodian or qualified witness attests that these conditions have been fulfilled.” Mays v. United Ass'n Loc. 290 Apprenticeship & Journeymen Training Tr. Fund, 407 F.Supp.3d 1121, 1142 (D. Or. 2019) (citing Rogers v. Oregon Trail Elec. Consumers Co-op., Inc., No. 3:10-CV-1337-AC, 2012 WL 1635127, at *9 (D. Or. May 8, 2012)). Assuming a witness authenticates this email, it satisfies the Deepwater Horizon criteria set forth above. The objection is overruled.
532
Email dated June 3, 2015 from Burke Robinson to Mike Rothenberg and Tommy Leep
Hearsay
No ruling necessary in light of government's representation that it does not seek to admit this exhibit
562
Email chain dated July 21, 2015 to August 6, 2015 among Mike Rothenberg, Lynne McMillan, and John Dzida
Hearsay; objection to pages 1-2 only
It appears this document is being offered to show that the statements in question were made. “If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay.” Fed.R.Evid. 801 advisory committee's note to 1972 amendment; see also United States v. Anfield, 539 F.2d 674, 678 (9th Cir. 1976) (“The hearsay rule does not operate to render inadmissible every statement repeated by a witness as made by another person. It does not exclude evidence offered to prove the fact that a statement was made, rather than the truth.”). The document is also a business record. The objection is overruled.
563
Draft email from Lynne McMillan dated July 20, 2015
Hearsay
No ruling necessary in light of government's representation that it will use this document solely to (1) refresh a witness's recollection; (2) establish a past recollection recorded; or (3) demonstrate a prior consistent statement.
564
Draft email from Lynne McMillan dated December 13, 2015
Hearsay
No ruling necessary in light of government's representation that it will use this document solely to (1) refresh a witness's recollection; (2) establish a past recollection recorded; or (3) demonstrate a prior consistent statement.
565
Draft email from Lynne McMillan dated December 17, 2015
Hearsay
No ruling necessary in light of government's representation that it will use this document solely to (1) refresh a witness's recollection; (2) establish a past recollection recorded; or (3) demonstrate a prior consistent statement.
566
Draft email Lynne McMillan dated December 27, 2015
Hearsay
No ruling necessary in light of government's representation that it will use this document solely to (1) refresh a witness's recollection; (2) establish a past recollection recorded; or (3) demonstrate a prior consistent statement.
567
Email dated September 29, 2015 from Lynne McMillan to Mike Rothenberg re: “Bend Reality/RV Mgmt Co Allocation for Sept”, attaching “September Bend Reality Allocation.xlsx” spreadsheet
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
575
Email dated February 22, 2016 from Lynne McMillan to Tom Leep re: “2/29 Payroll Notes,” attaching Excel spreadsheet
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
583
Email dated May 28, 2015 from Mike Rothenberg to Brandon Farwell re: “Quick few
Fed R. Evid. 402, 403; violates the
Most of the statements in this document were made by the defendant and therefore are not
questions - please respond,” forwarding email correspondence with Adam Satariano at Bloomberg
Court's in limine ruling
hearsay. Fed.R.Evid. 801(d)(2); United States v. Grogg, 312 Fed.Appx. 889, 890 (9th Cir. 2009). None of the balance of the statements is being offered for the truth of the matter asserted. The objection is overruled.
587
Email chain dated December 17, 2015 to December 21, 2015 among Tom Leep, Lynne McMillan, Mike Rothenberg, and Neil Devani re: “Transfer of Supan Shares,” attaching “151215 Fund II Balances.xlsx” spreadsheet
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
588
Tom Leep document titled “Operating Companies' Finances”
No ruling necessary in light of government's representation that it will use this document solely to (1) refresh a witness's recollection; (2) establish a past recollection recorded; or (3) demonstrate a prior consistent statement.
589
Super Bowl 50 email chain -Suite Experience Group
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
591
Email dated December 7, 2015 from Tommy Leep to Lynne McMillan, cc: Mike Rothenberg re: “Fwd: updated agreement,” attached three pdfs re: Rose Bowl
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
592
Email dated December 7, 2015 from Lynne McMillan to Mike Rothenberg re: “updated agreement”
Hearsay
This document is a business record of Rothenberg Ventures Management Company. The objection is overruled.
IT IS SO ORDERED.