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United States ex rel Miller v. Bill Harbert International Construction

March 16, 2007


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


Before the Court are a number of evidentiary motions, most of which spawn from the criminal proceedings that presaged this case.*fn1 Upon consideration of the motions, the memoranda in support and opposition thereto, the applicable law, and the entire record herein, the Court disposes of the motions as follows:


Defendants HII and HC have lodged a Motion [566] to exclude any evidence of or reference to the prior criminal proceeding related to this matter -- a Northern District of Alabama case in which Roy Anderson was convicted, Bilhar pleaded guilty, and BHIC was indicted but later dismissed. With limited exceptions discussed more fully below, this Motion [566] is GRANTED. Under the Federal Rules of Evidence, evidence should only be admitted if it is relevant, meaning it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 402, 401. But, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

Certain components of the criminal trial are of distinct relevance. First, Roy Anderson's conviction is of a certain relevance. Plaintiffs point out that there is an exception to the hearsay rule for "[e]vidence of a final judgment, entered after a trial or upon a plea of guilty . . . adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment." Fed. R. Evid. 803(22). As the Court has determined elsewhere, the "fact[s] essential to sustain the judgment" against Anderson, which are far fewer than what plaintiffs contend, are to be given preclusive effect here, foreclosing Anderson from contesting his liability as to participation in the conspiracy -- though the conviction does not foreclose him from contesting the extent of his participation in the conspiracy, his liability for any substantive violations of the FCA, and the issues of causation and damages on all counts. See Memorandum Opinion & Order [713].

Because the conviction against Anderson will be given preclusive effect, either by jury instruction or the granting of an appropriate motion, the probative value has been extracted from his criminal conviction. All that is left is the purely prejudicial effect of tarring him as a criminal. This alone may not counsel exclusion, were it not for the fact that Anderson's jury did not have to make a finding as to who his co-conspirators were. Introducing evidence of Anderson's trial invites the jury to speculate that his co-conspirators must have been the same parties who are defendants in this case. In addition, introducing the fact that there was a criminal trial invites confusing, time-consuming, and ultimately unproductive side litigation explaining who was and was not a party to that case, what the disposition was, and on and on.

Much the same is true as applies to Bilhar, the company that executed a guilty plea agreement with the United States. That agreement has been given broad preclusive effect by the Court. See Memorandum Opinion & Order [713]. Since the essential facts embraced in Bilhar's plea have been given applied to this case, there is little of probative value that remains from its criminal case -- with the exception of the plea agreement and the Joint Rule 11 Memorandum that accompanied it, wherein Bilhar admits to a certain recitation of facts. Evidence of a guilty plea is admissible under Rule 803(22) as evidence, but is not conclusive as to the statements made therein. Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir. 1992) (Posner, J.); RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 403 (8th Cir. 1995).

The guilty plea is probative and helpful to the jury here. Both documents pose certain problems insofar as they refer to other parties who are defendants here, such as suggesting that those other parties must be criminals, having been found guilty or plead guilty themselves. For that reasons, the case caption and any other references in these documents to parties to this case, other than Bilhar, should be redacted. This is because the plea agreement and Rule 11 Memorandum, which are probative in admitting that Bilhar and "others" engaged in a conspiracy, do not identify which parties are the "others." Without guidance, the jury could become confused and assume that unrelated references in those documents to defendants in this case must mean that they were the others with whom Bilhar conspired. But beyond that one potential pitfall, which can be cured by way of redaction, the recitation of facts admitted to by Bilhar is highly probative, and, under these conditions, poses relatively little risk of undue prejudice.

A few other specific remnants of the criminal matter are dealt with below. Unless specifically addressed below, there is to be no evidence of or reference to the criminal matter.


Plaintiffs' Motion [600] to admit testimony from the Anderson trial that was given by now-unavailable witnesses stands in opposition to defendant's Motion [574] to exclude all testimony from that trial. As stated below, defendants' Motion [574] is GRANTED in part and DENIED in part, as is plaintiffs' Motion [600].

Plaintiffs seek to admit former testimony from unavailable witnesses, particularly Rainer Hermann and Giovanni Greselin. Their motion indicates that other former testimony might be proffered, but does not indicate whose. As to Hermann and Greselin, unavailability is not contested. But Rule 804(b)(1), under which this evidence is offered as an exception to the hearsay rule, only allows hearsay in "if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Fed. R. Evid. 804(b)(1).

Anderson himself is, of course, a party to this case. As the Court has noted elsewhere, there are certain similarities between the criminal case and this one. There is every reason to believe that Anderson himself had the same motive -- and note, the rule requires a "similar" motive, not identity of motives -- to develop testimony in that trial as he would in this. In short, his motive was to argue his way out of the conspiracy. That said, the evidence is admissible under 804(b)(1) insofar as it is used against Anderson.

But it is precisely the nature of Anderson's motive in the criminal trial that makes the evidence inadmissible if offered against other defendants. Anderson was not a "predecessor in interest" to any of the other defendants at the time of his trial. Plaintiffs feebly point to Anderson's officer positions at certain corporate defendants; but they do not argue he held these positions when tried, or that he represented the interests of the corporate defendants in any way at his trial. While plaintiffs argue that courts have read the "predecessor in interest" requirement loosely to ...

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