In an unpublished fraud case issued today, United States v. Horacio Munar, the Sixth Circuit vacated a six-level multiple-victim enhancement under U.S.S.G. § 2B1.1(b)(2)(c), and remanded for resentencing because the district court failed to address the defendant’s sentencing objection.
Of note in this opinion is whether to allow summary evidence before a jury – a subject that does not have much precedent in this circuit. There were over 6,000 admitted exhibits at trial in this case. One summary chart was not admitted into evidence but was given to the jury, albeit with a limiting instruction and altered title indicating it was not evidence.
The Sixth Circuit held that “pedagogical devices/illustrative aids used at trial should not be allowed into the jury room without consent of all the parties since they are more akin to argument than evidence.” The jury was given this evidence during deliberations over defendant's objection. Even with “a limiting instruction, there is authority to the effect that the better practice is to allow the exhibit to be used only as a demonstrative adjunct to testimony, and not to allow the chart to be formally admitted into evidence and thus go to the jury room.”
Ultimately, the Sixth Circuit concluded the jury should not have been given the chart, but the error was harmless because the case was complex and the limiting instructions dispelled any danger the jury would rely on the exhibit as fact.