## Facts

- The United States prosecuted several defendants, including physicians, in a healthcare-fraud and conspiracy case involving a laboratory (PremierTox) and addiction-treatment clinics (SelfRefind).
- During the jury trial, the government offered multiple emails among defendant doctors and between doctors and a billing-services employee, Kris Kaiser.
- Defendants objected that certain emails were not properly authenticated because Kaiser was not a sender, recipient, or copied party on the disputed messages.
- Kaiser testified she had extensive prior email communications with the doctors and was familiar with their email addresses, signature practices, and identifying features.
- Disputed messages included communications between Dr. Brian Walters and Dr. Bryan Wood sent from addresses that were tied to their identities and work; some messages included a “bw” sign-off and an auto-signature block “Bryan S. Wood, MD.”
- The court overruled the objections at trial and admitted the emails; the jury later acquitted all defendants on the conspiracy count.
- After trial, the court issued a written opinion explaining its trial rulings on (1) authentication under Federal Rule of Evidence 901 and (2) admissibility as co-conspirator statements under Rule 801(d)(2)(E).

## Issues

1. Whether emails may be authenticated under Federal Rule of Evidence 901 through circumstantial evidence and distinctive characteristics when the authenticating witness was neither sender nor recipient of the disputed emails.
2. Whether emails may be admitted as co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E) when the jury later acquits defendants of the charged conspiracy.

## Decision

- The court held the emails were properly authenticated under Rule 901 based on circumstantial evidence and distinctive characteristics, including email addresses, signature blocks, and consistent email practices known to Kaiser.
- The court held the emails were properly admitted as co-conspirator statements under Rule 801(d)(2)(E) because the government satisfied the foundational requirements by a preponderance of the evidence.
- The court held that the later acquittal on the conspiracy count did not retroactively invalidate the court’s earlier Rule 801(d)(2)(E) admissibility determination.

## Legal Principles

- Under Federal Rule of Evidence 901(a), the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
- Rule 901(b)(4) permits authentication through appearance, contents, substance, internal patterns, or other distinctive characteristics, considered with all the circumstances; emails may be authenticated through such circumstantial indicators.
- Authentication does not require testimony from the sender or recipient; a knowledgeable witness may authenticate electronic communications by identifying consistent addresses, signature conventions, and other identifying traits.
- Under Rule 801(d)(2)(E), a statement is non-hearsay if made by a coconspirator during and in furtherance of a conspiracy, provided the court finds by a preponderance of the evidence that (1) a conspiracy existed, (2) the declarant and defendant were members, and (3) the statement was made during and in furtherance of the conspiracy.
- The court’s Rule 801(d)(2)(E) gatekeeping determination applies a preponderance standard and is independent of the jury’s beyond-a-reasonable-doubt verdict on the conspiracy charge.

## Conclusion

The court reaffirmed its trial admission of disputed emails, ruling that circumstantial markers and a familiar witness’s testimony satisfied Rule 901 authentication, and that the emails qualified as co-conspirator statements under Rule 801(d)(2)(E) even though the jury ultimately acquitted the defendants of conspiracy.


United States v. Bertram, 259 F. Supp. 3d 638 (E.D. Ky. 2017)