           Case: 14-13977   Date Filed: 02/03/2016   Page: 1 of 8


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13977
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:13-cr-00139-CAP-JFK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MAURICIO WARNER,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (February 3, 2016)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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       A Northern District of Georgia jury convicted Mauricio Warner on all 50

counts of an indictment that charged him with obtaining individuals’ identities and

using such identities to file over 5,000 false income tax returns resulting in

millions of dollars in refunds that were deposited in bank accounts Warner

controlled. 1 He now appeals his convictions. The seeks the vacation of his

convictions and a new trial on the grounds that the District Court abused its

discretion (1) in refusing to permit a polygraph examiner testify to the results of a

polygraph examination he administered to Warner; (2) admitting into evidence

Government exhibits 500 and 500A, spreadsheets of fraudulently submitted tax

returns, as business records; and (3) permitting each juror to have a copy of the

indictment throughout trial. We consider these points in turn.

                                                I.

       A district court’s decision to admit or exclude expert testimony under

Federal Rule of Evidence 702 is reviewed for abuse of discretion, United States v.

Gilliard, 133 F.3d 809, 812 (11th Cir. 1998), which is the standard we apply in

reviewing evidentiary rulings in general. Brown, 415 F.3d 1257, 1264-65 (11th

Cir. 2005).     A district court abuses its discretion when it “applies the wrong law,




       1
          Of the 50 counts, 16 alleged violations of 18 U.S.C. § 1343 (wire fraud), 16 counts
alleged violations of 18 U.S.C. § 1028A (aggravated identity theft), 16 counts alleged violations
of 18 U.S.C. § 287 (false claims), and two counts alleged violations of 18 U.S.C. § 1957 (money
laundering). The District Court sentenced Warner to prison for a total of 240 months.
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follows the wrong procedure, bases its decision on clearly erroneous facts, or

commits a clear error in judgment.” Id. at 1266.

      Federal Rule of Evidence 702 provides that an expert witness may testify in

the form of an opinion if the expert’s specialized knowledge will “assist the trier of

fact to understand the evidence or to determine a fact at issue.” United States v.

Brown, 415 F.3d at 1266. Dow Pharms., 509 U.S. 579 590-91, 113 S. Ct. 2786,

2795, 125 L. Ed. 2d 469 (1993); see also Fed. R. Evid. 702.

      The results of a polygraph examination are not inadmissible per se. United

States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir. 1989) (en banc). The trial

judge in the exercise of discretion may admit the results of such examination to

impeach or corroborate witness testimony. Id. at 1536.

      The District Court did not abuse its discretion in concluding that the

polygraph examination was inadmissible under Rule 702. The question posed by

the examiner addressed an issue that was to be decided by the jury, that is, whether

Warner knowingly filed tax returns without the individuals’ authority or knowing

that they were not entitled to the refund requested. Since Warner took the stand

and answered the same questions, the jury was capable of determining his

credibility without the aid of an expert.




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                                          II.

      Federal Rule of Evidence 1006 authorizes the admission into evidence of a

summary of voluminous business records but only where the originals or

duplicates of those originals are available for examination or copying by the other

party. Fed. R. Evid. 1006; United States v. Arias-Izquierdo, 449 F.3d 1168, 1184

(11th Cir. 2006).

      The business record exception to the hearsay rule under Federal Rule of

Evidence 803(6) states, in relevant part, that a record will be admitted if:

      (A) the record was made at or near the time by—or from
      information transmitted by—someone with knowledge;
      (B) the record was kept in the course of a regularly conducted
      activity of a business, organization, occupation, or calling, whether or
      not for profit;
      (C) making the record was a regular practice of that activity;
      (D) all these conditions are shown by the testimony of the custodian
      or another qualified witness . . .
      (E) the opponent does not show that the source of information or
      the method of circumstances of preparation indicate a lack of
      trustworthiness.

Fed. R. Evid. 803(6). “Rule 803(6) requires that both the underlying records and

the report summarizing those records be prepared and maintained for business

purposes in the ordinary course of business and not for purposes of litigation.”

Arias-Izquierdo, 449 F.3d at 1183-84. We have held that “[t]he touchstone of

admissibility under [Rule 803(6)] is reliability, and a trial judge has broad




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discretion to determine the admissibility of such evidence.” United States v.

Bueno-Sierra, 99 F.3d 375, 378 (11th Cir. 1996).

      Computer generated business records are admissible under the following

circumstances: “(1) [t]he records must be kept pursuant to some routine procedure

designed to assure their accuracy, (2) they must be created for motives that would

tend to assure accuracy (preparation for litigation, for example, is not such a

motive), and (3) they must not themselves be mere accumulations of hearsay or

uninformed opinion.” United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir.

1985) (emphasis omitted) (holding that a district court did not abuse its discretion

by admitting computer printouts containing compilations of multiple transactions

relating to mortgage accounts under the business records exception); see also

United States v. Ford, 784 F.3d 1386, 1395 (11th Cir. 2015) (holding that

summary charts of tax refunds were admissible under Rule 803(6) because they

presented “bare facts pulled from Ford’s bank account records and various tax

returns”).

      In Arias-Izquierdo, we held that a typed summary of handwritten business

records created solely for litigation was inadmissible hearsay evidence. 449 F.3d

at 1184. We noted that the facts were distinguishable from United States v. Fujii,

301 F.3d 535, 539 (7th Cir. 2002), because the records in Fujii were “electronically




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stored information and the summary was simply a printout of that information.”

Id.

      In Fujii, the District Court admitted airline check-in and reservation records

and flight manifests that were kept in the ordinary course of business and printed at

the government’s request. Fujii, 301 F.3d at 539. The Seventh Circuit held that

“[c]omputer data compiled and presented in computer printouts prepared

specifically for trial is admissible under Rule 803(6), even though the printouts

themselves are not kept in the ordinary course of business.” Id. (emphasis

omitted). The court reasoned that “because the information was printed out at the

request of the [government] does not deprive the printouts of its business-record

character.” Id.

      We find no abuse of discretion in the admission of discretion by admitting

Government exhibits 500 and 500A under Rule 803(6). Although the spreadsheets

were formatted to be easier to understand and printed for litigation, the underlying

records were kept in the ordinary course of business and the data was not modified

or combined when entered into the spreadsheet. See Arias-Izquierdo, 449 F.3d at

1184; see also Fujii, 301 F.3d at 539.

      Even if the record were not admissible under the Rule 803(6) exception or

Rule 1006, the error was harmless because there was strong evidence presented

without the spreadsheets supporting Warner’s conviction. United States v.


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Langford, 647 F.3d 1309, 1323 (11th Cir. 2011) (“An error is harmless unless there

is a reasonable likelihood that it affected the defendant’s substantial rights.”).

                                          III.

      The decision to provide the jury with a copy of an indictment is committed

to the district court’s sound discretion. See United States v. Haynes, 573 F.2d 236,

241 (5th Cir. 1978); Bruce v. United States, 351 F.2d 318, 320 (5th Cir. 1965).

      As a general rule, a “trial court may, in the exercise of discretion, allow the

indictment to be taken into the jury room.” Bruce, 351 F.2d at 320. Likewise, a

court may provide the jury copies of the indictment before trial, provided that the

court gives specific instructions that the indictment is not evidence. United States

v. Tucker, 526 F.2d 279, 283 (5th Cir. 1976); see also Haynes, 573 F.2d at 242

(“The jury was properly instructed that the indictment itself did not constitute

evidence, and the indictment contains no inflammatory or pejorative language that

would create any prejudice against the accused”). In Tucker, we upheld a

defendant’s conviction after the court provided the jurors with a pencil and a

photocopy of the indictment before trial. Tucker, 526 F.2d at 283. We reasoned

that, although we were “mildly skeptical of this procedure, the potential for

prejudice was avoided here by specific instructions, delivered shortly before and

repeated immediately after the copies of the indictment were distributed, to the

effect, that the indictment was not evidence.” Id. We distinguished Tucker from


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United States v. Baker, 418 F.2d 851 (6th Cir. 1969), because the Sixth Circuit

found that the distribution of copies of the indictment without any cautionary

instruction was error. Id. at 283 n.7.

      There was no abuse of discretion here. The court specifically instructed the

jurors on two separate occasions that the indictment was not evidence or proof of

any guilt. See Tucker, 526 F.2d at 283. Even if the court’s lack of

contemporaneous instructions was error, it was harmless.

      For the foregoing reasons, Warner’s convictions are

      AFFIRMED.




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