United States v. Mark Isaacs ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2876
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARK O. ISAACS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 186—Joan Humphrey Lefkow, Judge.
A RGUED M AY 12, 2009—D ECIDED JANUARY 25, 2010
Before K ANNE and SYKES, Circuit Judges, and V AN
B OKKELEN, District Judge.Œ
Œ
The Honorable Joseph S. Van Bokkelen, United States District
Court Judge for the Northern District of Indiana, sitting by
designation.
The panel wishes to thank Jason Huber and Travis Kennedy
of the Edwin F. Mandel Legal Aid Clinic, The University of
(continued...)
2 No. 08-2876
V AN B OKKELEN, District Judge. Following a jury trial,
Mark O. Isaacs was convicted of fraudulently using
unauthorized access devices in violation of 18 U.S.C.
§ 1029(a)(2). He was ordered to serve a prison term of
forty months and pay $573,400 in restitution. Isaacs
appeals, contending that the district court abused its
discretion by denying his motion for a thirty-day continu-
ance after the government turned over a new version
of voluminous computer records in the form of compact
disks (“CDs”) three days before trial. He further asserts
that the district court abused its discretion by admitting
the government’s summary exhibits at trial after the
government failed to turn over the underlying data at a
reasonable time and place as required by Federal Rule
of Evidence 1006. Finally, Isaacs avers that the district
court abused its discretion by limiting his cross-examina-
tion of a key government witness regarding the P2K
database or system. Because the district court did not
abuse its discretion with respect to these issues, we
affirm the judgment of the district court.
I.
PrimeCo Personal Communications, Inc., a former
telecommunications provider, was in the business of
selling cellular phones, cellular phone service, and
prepaid phone or payment cards. Through either a
Œ
(...continued)
Chicago Law School, for representing Mark O. Isaacs on the
appeal in this case.
No. 08-2876 3
PrimeCo store or an authorized PrimeCo dealer, PrimeCo
customers could purchase prepaid phone cards and load
the value of the cards (minutes or credits) onto their
PrimeCo phone accounts. To activate the minutes on a
prepaid phone card, PrimeCo customers would call a toll-
free number and enter certain information, including
the PrimeCo phone number associated with the account,
the account number to which the credit was to be
applied, and a personal identification number (“PIN”) that
was listed on the back of the prepaid phone card. Each
prepaid phone card had its own unique PIN and each
PIN was associated with one value that was to be
credited to only one PrimeCo phone account.
In March and April 2001, a glitch was discovered in
PrimeCo’s computer system, which permitted the
loading of prepaid phone card values onto multiple
PrimeCo phone accounts using a single PIN. As a result,
PrimeCo initiated an internal investigation and found
that, after a call was placed to the toll-free number and
a PIN was entered, it took between forty-five
seconds and one minute and fifteen seconds for the com-
puter’s database to query the system and determine if
that particular PIN was available. During that time
period, simultaneous calls could be made to the toll-free
number to credit the same PIN to multiple PrimeCo
phone accounts. The investigation uncovered that certain
PrimeCo prepaid phone cards were being used to credit
multiple PrimeCo phone accounts, and this problem
was isolated to PrimeCo’s Chicago market.
Ginny Toepfer, PrimeCo’s Director of Information
Technology, compiled three sets of data to analyze the
4 No. 08-2876
problem. First, Toepfer received data files from West
Interactive, the company that maintained the computer
program for the PIN card activations. That data
included the phone numbers used to call and activate
the PINs, the PINs that had been activated, the account
numbers that were credited, the dollar amounts of the
prepaid phone cards, and the dates of the phone calls.
Second, PrimeCo’s marketing department provided
Toepfer with a listing of customers, who were active and
in good standing, in PrimeCo’s billing system. Finally,
Toepfer was given a listing of PrimeCo’s indirect dealers.
Toepfer compiled the information she received into one
database.1 After analyzing the data, she generated sum-
mary exhibits that were admitted into evidence as the
Government’s Exhibits 2d and 2e. The summary
exhibits were grouped by PIN, and after each PIN the
summary exhibits listed the following information: (1) the
date and times the PIN was activated; (2) the phone
numbers that were used to call the toll-free number to
activate that PIN; (3) the dollar amount of the prepaid
phone card that was activated; (4) the PrimeCo account
number that was credited; (5) the name of the PrimeCo
1
The data from the time period January 2001 through
March 2001 was admitted into evidence on a CD marked as
the Government’s Exhibit 2. Some of the data relating to
PrimeCo’s customers, who were active and in good standing,
was admitted into evidence on a CD marked as the Govern-
ment’s Exhibit 2A. The data from the time period August 2000
to December 2000 was admitted into evidence on a CD
marked as the Government’s Exhibit 2B.
No. 08-2876 5
authorized dealer associated with the phone number, if
any; (6) the name of the PrimeCo customer associated
with the phone number, if any; and (7) the total number
of times the PIN was activated and the total dollar
amount for each PIN.
Isaacs was the owner of four wireless telephone stores
that operated under the name of Beep Smart. PrimeCo
records established that Isaacs had a PrimeCo account
number. An analysis of the summary exhibits showed
that, during a seven-day sample period in January 2001,
in eleven instances, his PrimeCo account number was
among those accounts credited multiple times. Another
analysis of the summary exhibits showed that, during a
different seven-day sample period in January 2001, three
phone numbers associated with one of Isaacs’s Beep
Smart stores were used fifty-nine times to load credits
using PrimeCo prepaid phone cards.
On March 16, 2006, a federal grand jury returned a one-
count Indictment against Isaacs, charging him with vio-
lating 18 U.S.C. § 1029(a)(2). Section 1029(a)(2) makes it
illegal for an individual to “knowingly and with intent
to defraud traffic[ ] in or use[ ] one or more unauthorized
access devices during any one-year period, and by
such conduct obtain[ ] anything of value aggregating
$1,000 or more during that period.” Isaacs was also
charged with aiding and abetting in the illegal scheme
under 18 U.S.C. § 2.22
Wayne Mitchell operated cellular phone stores and was
indicted as a co-defendant in the PrimeCo phone card scheme.
(continued...)
6 No. 08-2876
Isaacs entered a plea of not guilty to the charges and
proceeded to trial. After a number of continuances of the
trial date, a jury trial was set to begin on April 21,
2008. Isaacs chose to represent himself at trial with the
assistance of stand-by counsel.
On the day the trial was set to begin, Isaacs filed an
emergency motion to continue the trial for thirty days.
On that same day, before proceeding to trial, the
district court heard arguments on Isaacs’s motion.
At the hearing, Isaacs argued that, just three days
before trial, his stand-by counsel had received a new set
of CDs containing voluminous computer records from
the government. He asserted that he needed more time
to compare the data on the new set of CDs, which com-
prised the underlying data used to compile the sum-
mary exhibits, to that which had been previously
produced by the government on an earlier set of CDs.
Isaacs further explained that the new set of CDs con-
tained 25,000 pages of data and because it would take
about six or seven hours to print the data, a continuance
was warranted.
The government’s counsel, however, represented that
the new set of CDs contained the same underlying data
that had been previously disclosed to Isaacs in 2006 on
the earlier set of CDs. The government produced a new
2
(...continued)
He entered a plea of guilty to access device fraud and was
sentenced to twenty-six months in prison and ordered to pay
$632,825 in restitution.
No. 08-2876 7
set of CDs before trial because the earlier set of CDs
contained extraneous and inadmissible information, and
one set of data lists was difficult to read. On the new set
of CDs, the government redacted information related to
a defendant in another case and PrimeCo and West
Interactive data that was not related to the summary
exhibits in this case. The government also converted one
set of data lists from Microsoft Excel to Microsoft Access
to make it more readable. The government’s counsel
explained that the redaction of the data and reformatting
change did not effect the summary exhibits: they
remained the same. Furthermore, the government’s
counsel had an understanding with Isaacs’s prior
counsel that the new set of CDs would be produced closer
to trial and would only include the underlying data used
to prepare the summary exhibits. The government’s
counsel stated there was a delay in producing the new
set of CDs because the PrimeCo employee responsible
for the summary exhibits no longer worked at the com-
pany.
Because Isaacs had concerns regarding the newly pro-
duced set of CDs, the government’s counsel proposed to
the district court that the underlying data previously
produced to Isaacs on the earlier set of CDs be used as
the basis for validating or admitting the summary
exhibits at trial. The government’s counsel, however,
stated that the earlier set of CDs could not be viewed by
the jury because that set of CDs contained irrelevant
and inadmissible information, and one set of data lists
was not in a viewable format. The district court agreed
with the government’s proposal and noted that Isaacs
8 No. 08-2876
could select which format he wanted to use; he had the
option of using either the newly produced set of CDs or
the earlier set of CDs for the purpose of validating the
summary exhibits at trial. Therefore, the district court
found no basis for delaying the trial and denied Isaacs’s
motion to continue.
The case proceeded to trial on April 21, 2008. Numerous
witnesses testified as to Isaacs’s involvement in the
scheme to defraud PrimeCo. These witnesses were either
Isaacs’s former employees or former employees of his co-
defendant, Wayne Mitchell. Many of these employees
were in high school and worked part-time at the defen-
dants’ stores, when the defrauding scheme took place.
Isaacs’s former employees testified that Isaacs instructed
them to tell a customer, who was interested in pur-
chasing a PrimeCo prepaid phone card, that they were
out of the cards, but if the customer left a phone number
and account number on a piece of paper, the credit
would be loaded onto the account later in the day. After
taking a customer’s phone number and account number,
an employee would take the payment from the customer
and then provide the customer with a receipt. Once an
entire sheet of paper was filled up with enough
customers seeking to purchase cards, that information
would be provided to Isaacs or Mitchell; either Isaacs or
Mitchell typically handled the sheets of paper containing
the account numbers and phone numbers.
These witnesses also described Isaacs’s direct participa-
tion in the loading of credits onto PrimeCo customer
accounts; he participated either in person or by phone by
use of a speaker phone. Typically, the process for
No. 08-2876 9
loading credits would involve Isaacs or Mitchell pro-
viding employees with the account numbers and phone
numbers that were to be credited. To load credits, em-
ployees would call PrimeCo’s toll-free number, enter
the phone numbers, and once a recording was heard
that asked for the PIN, someone would read the PIN
aloud and the employees would input the PIN simulta-
neously, taking advantage of the computer’s lag time. On
some occasions, Isaacs read the PINs during the loading
process. He often brought stacks of prepaid phone cards
to the stores to be loaded onto customers’ accounts.
Furthermore, there was testimony that Isaacs’s employees
received additional pay or benefits for loading credits
onto accounts.
Witnesses testified that Isaacs became involved in the
loading of credits onto PrimeCo customer accounts in
August 2000, and that activity continued until May 2001.
After Isaacs became involved in the loading of credits,
the employees began participating in the process more
often. One witness testified that the loading of credits
took place every night and involved one to three phone
cards per night. However, after Isaacs became involved,
the number of cards increased to six or seven per
night and, within several months, the number of cards
increased to twenty-five per night. Furthermore, subse-
quent to Isaacs’s involvement, the number of employees
who participated in the loading process increased. Ac-
cordingly, on the basis of the witnesses’ testimony,
the evidence showed that Isaacs improperly used a
single PIN to credit multiple PrimeCo phone accounts
and pocketed the money he collected from customers
that was to be used for the purchase of the prepaid phone
10 No. 08-2876
cards; this illegal scheme resulted in losses in excess
of $500,000 to PrimeCo.
Toepfer, a key government witness, also testified at trial.
On direct examination, Toepfer testified regarding
the database she developed, which comprised the under-
lying data in this case, and the creation of the summary
exhibits. Isaacs sought to cross-examine Toepfer re-
garding the validity of the summary exhibits. Specifically,
during cross-examination, Isaacs referred Toepfer to a
page in one of the summary exhibits; however, Toepfer,
who was using a summary exhibit that had been
admitted into evidence, noted that the page Isaacs was
using was different from the page she was using. There
was a discrepancy in the two versions of the summary
exhibits which entailed the transposition of two
identical lines or time entries. After a brief consultation
with stand-by counsel, Isaacs was able to continue his
cross-examination by referring Toepfer to the version of
the summary exhibits he was using and complete the
point he wished to make regarding blank lines in the
PrimeCo name column listed on the summary exhibits.
On direct examination, Toepfer further testified re-
garding PrimeCo’s database of active customers known
as the P2K database or system, which she received from
PrimeCo’s marketing department during the internal
investigation. Toepfer stated that all the data she
received during the internal investigation, was imported
into one database she created; this data was maintained
so that it could not be altered or changed. Specifically,
Toepfer testified that once the data was imported into
her database, which included the data from P2K system,
No. 08-2876 11
it was stored in a read-only format so that it could not
be changed or altered by anyone.
On cross-examination, Isaacs believing that Toepfer
testified that the P2K system could not be altered or
changed, sought to question her about the integrity or
security of the system. Specifically, Isaacs asked Toepfer:
“And if an employee was to go into a section [of the P2K
system] that they are not authorized, would that be
grounds for them to be terminated?” (R. 253:14-16.) The
government object to Isaacs’s question on relevancy
grounds. In responding to the government’s objection,
Isaacs stated that he thought his line of questioning
was relevant because “during the direct [Toepfer] stated
that certain—that some employees were not allowed to
go into the P2K system. And that gives the jury the im-
pression that this information is totally secured.” (R. 254:1-
4.) Isaacs stated he wanted to explore the issue of the
security of the P2K system because he planned to cross-
examine another government witness, Tina James. James,
one of Isaacs’s former employees, had improperly
accessed the P2K system to deactivate a friend’s phone.
Isaacs, who believed that James was terminated from
PrimeCo for the phone deactivation, explained that he
did not want the jury to have the impression that the
P2K system was secure.
In sustaining the government’s relevancy objection,
the district court stated that Isaacs could only question
Toepfer about the integrity of the database she created,
used, and described as secure because that was all the
government’s counsel had questioned her about on
12 No. 08-2876
direct examination. Isaacs, however, continued his cross-
examination and was able to elicit from Toepfer that
certain employees were able to access the P2K system
and, if an employee went into a section of the system
they were prohibited from accessing, that employee
could be terminated.
James later testified on direct examination, that in her
sales position at PrimeCo, she had some access to the
P2K system and she once improperly accessed the
system to deactivate a phone account. James stated that
she was disciplined for deactivating the account and was
later terminated for her involvement in the scheme
to defraud PrimeCo and not for improperly accessing
the P2K system. James also testified that certain em-
ployees had limited access to the P2K system.
After Isaacs rested his case and the CDs containing the
underlying data and summary exhibits had been
admitted into evidence, he asked the district court to
allow the earlier set of CDs to be viewed by the jury. To
support his request, Isaacs raised the issue of the dis-
crepancy in the versions of the summary exhibits that
he and Toepfer used during cross-examination. The
government explained the discrepancy by noting that
early in the discovery process hard copies of the
summary exhibits were produced to Isaacs; those
hard copies were an earlier version of what was later
electronically produced to Isaacs one to two years before
trial. The government explained that Toepfer did not
prepare the earlier version of the summary exhibits and
the discrepancy in the versions of the summary
exhibits entailed the transposition of two identical lines
No. 08-2876 13
or time entries. Thus, a different program had been used
to generate the earlier version of the summary exhibits
which reversed the order of the entries; however, the data
remained the same. The district court denied Isaacs’s
request to allow the jury to view the earlier set of CDs
because there were no substantive changes or differences
between the summary exhibits used by Isaacs and the
summary exhibits admitted into evidence.
On April 24, 2008, the jury returned a guilty verdict
against Isaacs. He was found guilty of knowingly, and with
intent to defraud, using unauthorized access devices,
namely PrimeCo phone cards, in violation of 18 U.S.C.
§ 1029(a)(2).
Isaacs filed a motion for a new trial on May 23, 2008. In
that motion, Isaacs argued that the district court erred
when it failed to grant his motion to continue the trial for
thirty days after the government tendered voluminous
computer records containing West Interactive and PrimeCo
data on the day of trial. Isaacs further moved for a
new trial on the basis that the district court improperly
limited his cross-examination of Toepfer regarding the
level of security of the P2K database or system.
On July 17, 2008, the district court denied Isaacs’s
motion. In denying the motion, the district court found
that Isaacs had possession of the underlying data and
summary exhibits long before the trial began in this
case. The district court further held that Isaacs had been
allowed to question Toepfer about the integrity or
security of the database she created, including whether
the P2K system was accessible by other employees at the
customer service level.
14 No. 08-2876
The district court entered judgment against Isaacs on
July 18, 2008. He was sentenced to forty months in
prison and ordered to pay $573,400 in restitution. Isaacs
now appeals.
II.
A.
Isaacs’s first argument on appeal is that the district
court abused its discretion in denying his motion to
continue the trial for thirty days. We will reverse a
district court’s “denial of a continuance only for an
abuse of discretion and a showing of actual prejudice.”
United States v. Farr, 297 F.3d 651, 655 (7th Cir. 2002) (citing
United States v. Schwensow, 151 F.3d 650, 656 (7th Cir.
1998)). In deciding whether a district court abused its
discretion in denying a continuance, “we bear in mind
that ‘a trial date once set must be adhered to
unless there are compelling reasons for granting a con-
tinuance.’ ” Id. (quoting United States v. Reynolds, 189 F.3d
521, 527 (7th Cir. 1999)). However, at the same time, a court
cannot have a “ ‘myopic insistence upon expeditiousness
in the face of a justifiable request for delay.’ ” United States
v. Robbins, 197 F.3d 829, 846 (7th Cir. 1999) (quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
In evaluating a request for a continuance, a district
court weighs seven non-exhaustive factors:
1) the amount of time available for preparation;
2) the likelihood of prejudice from denial; 3) the defen-
dant’s role in shortening the effective preparation
No. 08-2876 15
time; 4) the degree of complexity of the case; 5) the
availability of discovery from the prosecution; 6) the
likelihood a continuance would satisfy the movant’s
needs; and 7) the inconvenience and burden to the
court and its pending case load.
Farr, 297 F.3d at 655 (citations omitted). The weight of
these factors will vary in any given situation and the
district court is in “ ‘the best position to evaluate and
assess the circumstances presented by [a party’s] request
for a continuance. ’ ” Id. (quoting Schwensow, 151 F.3d at
656). Accordingly, a district court abuses its discretion
“only when we can say that the trial judge chose an
option that was not within the range of permissible
options from which we would expect the trial judge to
choose under the given circumstances.” United States v.
Depoister, 116 F.3d 292, 294 (7th Cir. 1997) (citing Thornton
v. Barnes, 890 F.2d 1380, 1385 (7th Cir. 1989)).
Having reviewed the record, we cannot find that the
district court abused its discretion in denying Isaacs’s
motion to continue the trial. First, Isaacs had enough
time to prepare for trial because the new set of CDs
contained essentially the same underlying data as that
which was previously produced by the government
and disclosed to Isaacs in 2006, during the discovery
phase of this case. Second, there were no material dif-
ferences in the underlying data contained on the earlier
and new sets of CDs as the government simply
redacted extraneous and inadmissible information, and
converted one set of data lists from Microsoft Excel to
Microsoft Access to make it more readable. The redaction
16 No. 08-2876
of the data and reformatting change did not effect the
summary exhibits: they remained the same. Notably,
Isaacs has failed to make a showing that there were, in
fact, any material differences between the two sets of
CDs. Therefore, the government’s disclosure of the new
set of CDs three days before trial did not nullify Isaacs’s
trial preparation because he had at least fifteen months
to review the underlying data and summary exhibits
and, by his own admission, he reviewed all of this informa-
tion long before trial.3
Isaacs next asserts that the district court’s denial of his
motion to continue severely prejudiced his ability to
prepare for trial because the summary exhibits constituted
the only evidence in the case that the $1,000 statutory
requirement had been met; there was no single witness
who could testify that he had acquired $1,000 or more
of value through the PrimeCo phone card scheme. Isaacs,
however, fails to persuade us on this point. Isaacs has
no independent basis for challenging the summary
exhibits because, as stated, the summary exhibits did not
change and were based on the same underlying data
contained in both sets of CDs.
3
The record does not state when in 2006 Isaacs received the
earlier set of CDs. Because Isaacs’s trial began on April 21, 2008,
at a minimum, he had at least fifteen months to prepare. This
assumes that Isaacs received the underlying data and sum-
mary exhibits on December 31, 2006. However, if Isaacs
received this same information on January 1, 2006, he would
have had about twenty-seven months to prepare for trial.
No. 08-2876 17
Isaacs also contends that, he was unable to adequately
prepare to cross-examine Toepfer regarding the validity
of the summary exhibits as a result of the government’s
late disclosure of the new set of CDs. To support
his contention, Isaacs points out that there was a discrep-
ancy in the versions of the summary exhibits he and
Toepfer used during cross-examination, which entailed
the transposition of two identical lines or time entries.
Isaacs used a version of the summary exhibits that
had been produced by the government early in the dis-
covery process; Toepfer used the summary exhibits
that she had prepared and had been admitted into evi-
dence.
In reviewing the discrepancy, the district court
found there were no substantive changes or differences
in the two versions of the summary exhibits. Because
Isaacs does not contend that the discrepancy in the ver-
sions of the summary exhibits was anything more than
the transposition of two identical lines or time entries, he
cannot be viewed as being prejudiced in his ability to
prepare for trial. The discrepancy was minor and Isaacs
had an opportunity to cross-examine Toepfer, using the
summary exhibits that were familiar to him, which he
had received early in the discovery process. Furthermore,
the discrepancy related to minor differences in the sum-
mary exhibits and did not involve the underlying data
in this case.
Isaacs’s additional contentions likewise fail to
persuade us that the district court abused its discretion
in denying his motion to continue the trial. Isaacs’s
claim that he diligently prepared for trial actually belies
18 No. 08-2876
his contention that he needed a continuance because
there were no material differences in the underlying
data contained in the two sets of CDs produced by
the government and there was no change in the sum-
mary exhibits. And Isaacs admitted he had reviewed
the underlying data and summary exhibits long before
trial. Furthermore, while Isaacs claims that the
complexity of this case weighed in favor of the district
court granting a continuance, he fails to persuade us on
this point because he had a minimum of fifteen months
to prepare for trial, which is a sufficient amount of time
when considering the evidence in this case. Therefore,
a continuance was not warranted on these bases.
Finally, Isaacs maintains that there was no indication
that a thirty-day continuance would have substantially
inconvenienced the district court, government, or any
witness. Isaacs points out that the district court never
discussed or make any specific statements regarding any
inconvenience to the court or any party in this case.
However, as we have stated, “[T]his factor is simply one
of many factors that the court may weigh and consider.”
United States v. Jones, 455 F.3d 800, 806 (7th Cir. 2006). The
district court did not err in failing to discuss
any inconvenience.
We find that the district court acted within its
discretion in denying Isaacs’s motion to continue the
trial for thirty days. Isaacs has failed to show that there
were any material differences in the underlying data
contained in the new set of CDs he received shortly
before trial, so as to cause him any prejudice. United
No. 08-2876 19
States v. Vincent, 416 F.3d 593, 599 (7th Cir. 2005) (“Despite
ample time since trial, however, [the defendant] has
neither pointed to exculpatory evidence he would have
found in the discovery nor proposed additional questions
he would have asked the government’s witnesses.”);
Robbins, 197 F.3d at 846 (affirming denial of motion to
continue where the defendants “did not identify any
specific material prejudice they suffered” from the de-
nial). Because the district court did not abuse its discre-
tion in denying Isaacs’s motion for a continuance, we
affirm on this issue.
B.
Isaacs contends that the district court abused its discre-
tion by admitting the summary exhibits into evidence
after the government failed to timely produce the new
set of CDs as required by Federal Rule of Evidence 1006.
We review a district court’s evidentiary rulings for an
abuse of discretion. United States v. Rangel, 350 F.3d 648,
650 (7th Cir. 2003) (citing United States v. Brown, 289
F.3d 989, 994 (7th Cir. 2002)).4
4
Plain error is the standard that is used “[w]hen a party fails to
properly object to the admission of evidence at trial.” Rangel,
350 F.3d at 650 (citing United States v. Curtis, 280 F.3d 798, 801
(7th Cir. 2002)). Here, Isaacs did not technically object to the
admission of the underlying data and summary exhibits
offered by the government at trial. However, in essence, he
previously challenged the admission of this evidence in pre-
trial motions, including his April 21, 2008, emergency motion
(continued...)
20 No. 08-2876
Rule 1006 controls the admission of summary exhibits:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined
in court may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates,
shall be made available for examination or copying,
or both, by other parties at [a] reasonable time and
place. The court may order that they be produced
in court.
Fed. R. Evid. 1006. Rule 1006 “requires a party seeking to
introduce a summary of voluminous records to provide
copies of those records to the opposing party at a rea-
sonable time and place.” Rangel, 350 F.3d at 651. A rea-
sonable time and place “has been understood to be
such that the opposing party has adequate time to
examine the records to check the accuracy of the sum-
mary.” Id. (citing Canada Dry Corp. v. Nehi Beverage Co., 723
F.2d 512, 523 (7th Cir. 1983)).
Isaacs contends that the government’s decision to
turn over the new set of CDs containing the underlying
data three days before trial violated Rule 1006 because
these records were not made available to him at a reason-
able time and place. He maintains that the admission of
the summary exhibits was prejudicial as it connected
4
(...continued)
to continue the trial. Because the government does not argue
that plain error is the applicable standard, we give Isaacs,
who represented himself at trial, the benefit of the doubt by
using an abuse of discretion standard.
No. 08-2876 21
him to the scheme to defraud PrimeCo and quantified the
losses in the case. Therefore, Isaacs claims he would not
have been convicted if the summary exhibits had not
been admitted into evidence.
We find Isaacs’s contention that the government
violated Rule 1006 without merit. As discussed above, the
government produced the earlier set of CDs containing
the underlying data used to create the summary exhibits
to Isaacs in 2006. Thus, Isaacs had at least fifteen months
to review the data and compare it to the summary
exhibits to determine if there were any inaccuracies; he
does not claim in this appeal that the underlying data
or summary exhibits were inaccurate or erroneous.
Because the government complied with Rule 1006, the
district court properly admitted the summary exhibits
into evidence. We, therefore, affirm the district court on
this issue.
C.
Isaacs contends that the district court abused its discre-
tion by limiting his ability to cross-examine Toepfer
regarding PrimeCo’s P2K database or system. As a
general matter, “[l]imitations on cross-examination are
reviewed for abuse of discretion when there are no im-
plications of the defendant’s Confrontation Clause
rights” under the Sixth Amendment. United States v.
Stoecker, 215 F.3d 788, 790 (7th Cir. 2000). Here, Isaacs
does not assert that his rights under the Sixth Amend-
ment’s Confrontation Clause are implicated.
22 No. 08-2876
Isaacs contends that he was entitled to fully cross-
examine Toepfer regarding the P2K system, which was
used, in part, to generate the summary exhibits intro-
duced by the government at trial. On cross-examination,
Isaacs sought to challenge Toepfer’s testimony that the
P2K system was secure and the data could not be al-
tered. Isaacs asked Toepfer whether employees were
punished for accessing the P2K system: “And if an em-
ployee was to go into a section [of the P2K system]
that they are not authorized, would that be grounds for
them to be terminated?” (R. 253:14-16.) The government,
however, objected to the question on the basis of rele-
vancy. In responding to the government’s objection,
Isaacs stated that he thought his line of questioning was
relevant because “during the direct [Toepfer] stated
that certain—that some employees were not allowed to go
into the P2K system. And that gives the jury the impression
that this information is totally secured.” (R. 254:1-4.) The
district court, in sustaining the government’s relevancy
objection, stated that Isaacs could only question Toepfer
about the integrity of the database she created, used,
and described as secure because that was all the govern-
ment’s counsel had questioned her about on direct exami-
nation. Therefore, Isaacs contends that he was unable
to challenge Toepfer regarding the security and validity
of the information in the P2K system because the
district court limited his ability to cross-examine her.
We find that the district court did not abuse its discre-
tion in limiting Isaacs’s cross-examination of Toepfer.
First, Isaacs was mistaken in his belief that Toepfer
testified that the P2K system was secure; she did not.
No. 08-2876 23
Rather, Toepfer stated that the database she created
was maintained so that the data itself could not be
altered or changed. She testified that once she imported
the data she received from the internal investigation
into her database, which included the data from the
P2K system, it was stored in a read-only format so that
it could not be changed or altered by anyone. Next,
Isaacs was able to elicit testimony from Toepfer that
certain employees were able to access the P2K system
and, if an employee went into a section of the system
he or she was prohibited from accessing, that employee
could be terminated. James also testified that certain
employees had limited access to the P2K system and she
was disciplined for improperly accessing the P2K system
to deactivate a friend’s phone. Therefore, Isaacs was not
limited in his cross-examination as to any material point.
Because the district court did not abuse its discretion
in limiting Isaacs’s cross-examination of Toepfer, we
affirm on this issue.
D.
Finally, Isaacs argues that he has presented three
clear errors made by the district court which constitute
cumulative errors. “Cumulative errors, while individually
harmless, when taken together can prejudice a
defendant as much as a single reversible error and
violate a defendant’s right to due process of law.” United
States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) (citations
omitted). However, because we hold that the district
court did not err as to any of the issues before us, we
find Isaacs’s contention without merit.
24 No. 08-2876
III.
Because we find that the district court did not abuse
its discretion with respect to any of the issues raised
by Isaacs, we affirm the judgment of the district court.
A FFIRMED
1-25-10