United States v. Harris (2018)

United States Court of Appeals for the Sixth Circuit · 2018 · Evidence

881 F.3d 945 (6th Cir. 2018)

Updated August 22, 2026

Evidenceimpeachmentprior inconsistent statementRule 613Rule 608Rule 901summary evidenceRule 1006

Facts

Harris, a registered stockbroker, was convicted of conspiracy, wire fraud, and obstruction of justice arising from a scheme in which he and others recommended shares of Zirk de Maison’s companies to clients in exchange for undisclosed commissions. On the obstruction count, government witness Guy Durand testified that Harris’s statement, "Remember, we sold watches," invited Durand to make a false statement to the FBI, but defense counsel was not allowed to impeach Durand with a recorded statement suggesting Harris had told him to "tell the truth and leave it at that." The government also introduced exhibits 303, 320, 346, and 610, including trade blotters and summary exhibits based on underlying bank, clearing firm, and market records. After trial, Harris discovered that his LinkedIn profile had been viewed during the trial period by the live-in girlfriend of Juror 12, and Harris sought a Remmer hearing because public internet searches of his name could reveal prejudicial information excluded at trial.

Issue

Did the district court abuse its discretion by excluding impeachment with Durand’s prior inconsistent statement, by admitting the government’s summary exhibits, by instructing the jury on fiduciary duty, and by refusing to hold a Remmer hearing or otherwise investigate a colorable claim of extraneous influence on a juror? If so, what relief was required?

Rule

Extrinsic evidence of a witness’s prior inconsistent statement is admissible under Rule 613(b), not barred by Rule 608(b), when the prior statement is irreconcilably at odds with the witness’s trial testimony, the witness has an opportunity to explain or deny it, and the matter is non-collateral. Trade blotters created by clearing firms in the regular course of business are admissible as business records and need not be treated as Rule 1006 summaries requiring production of every underlying trade record; true Rule 1006 summaries are admissible when the underlying materials are made available for examination or copying at a reasonable time and place. When a defendant presents a colorable claim of extraneous influence on a juror, the district court must investigate sufficiently, including by a Remmer hearing or other meaningful inquiry, to determine whether the defendant’s right to an impartial jury may have been violated.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a fraud trial in Cleveland, government witness Nora Patel testifies that Devin Cross told her to "erase the invoices before the auditors arrive." On cross, defense counsel asks Nora about a recorded interview she gave a private investigator in which she said Devin told her to "turn over the files and answer honestly." Nora says she does not remember making that statement.

If defense counsel offers the recording solely to contradict Nora’s trial testimony about what Devin said, how should the court rule?

Explanation. The majority held that when a witness’s prior statement is irreconcilably at odds with trial testimony, and the statement is offered to contradict that testimony rather than to show character for untruthfulness, Rule 613(b) governs rather than Rule 608(b). A claimed lack of memory does not defeat use of the statement where the witness had an opportunity to explain or deny it. Because the issue is central rather than collateral, the recording should be admitted for impeachment.