circumstances it would be unfair to admit the duplicate in lieu of the original." Fed. R. Evid. 1003; see also FDIC v. Rodenberg, 571 F. Supp. 455, 457-58 (D. Md. 1983) (decision as to whether copies are admissible as duplicates under Rule 1003 is within trial court's discretion, and decision is one of trustworthiness and fairness). The defendant has neither raised a genuine issue as to the authenticity of the originals of Exhibits One through Three and Five through Seven, nor demonstrated why under the circumstances it would be unfair to admit the duplicates. Accordingly, there was no error in admitting into evidence these exhibits.
Under Federal Rule of Evidence 901, authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). The first example of sufficient authentication that the Rule provides is testimony of a witness with knowledge that a matter is what it is claimed to be. Fed. R. Evid. 901(b)(1). Testimony, therefore, from Richard Melton, who wrote the appraisals, and Kenneth Eline, who cashed and endorsed the checks and who owned the body-shop that was the payee, sufficed to authenticate these exhibits. See Trial Tr. of Jan. 13, 1993, Doc. No. 119, at 21, 24-25 (testimony of Richard Melton); Trial Tr. of Jan. 12, 1993, Doc. No. 96, at 34-45, 111-16 (testimony of Kenneth Eline).
Defendant, nonetheless, objects to the authentication of the exhibits on the basis that no custodian of these records from Travelers testified as to their authenticity. However, nothing in Rule 901 requires this, Fed. R. Evid. 901, and the Court may find the authentication requirement "satisfied by evidence other than testimony concerning the chain of custody." Georgalis, 631 F.2d at 1205-06.
The defendant further challenges the admission of Government Exhibit One, which consists of a copy of page one of a two-page original appraisal form, on the basis that the second page was not produced. Defendant offers no reason to suspect that the copy of page one is not identical to page one of the original. The defendant relies upon United States v. Alexander, 326 F.2d 736 (4th Cir. 1964), a case in which the Government offered into evidence a copy of a check, but the copy had not duplicated key terms from the original, including the name and address of the payee, and also possibly the date, amount, and other figures. Id. at 738 & n.4. A Government witness instead had typed into these gaps and omissions what the Government claimed to be an accurate statement of the original terms, which themselves were "vitally material to the Government's case." Id. at 738-40. In this case, in contrast to Alexander, there is no issue of gaps or omissions on the copy admitted, nor are the material terms for which the exhibit was offered missing from the admitted page. In fact, the defendant has not suggested that the Government inserted or otherwise altered the key terms appearing on the admitted exhibit. Moreover, the defendant has neither suggested why the second page is necessary for an understanding of the information contained on the first page,
nor otherwise shown why, under the circumstances, it was unfair to admit the first page without a copy of the second. Therefore, the copy of what was originally page one of a two-page document was properly admitted as a duplicate of the first page. Fed. R. Evid. 1003.
C. Jury Instructions.
Defendant's remaining arguments relate to this Court's charge to the jury. First, defendant argues that this Court's instruction on character evidence was improper. Defendant contends that he was entitled to an instruction that evidence of good character may by itself raise reasonable doubt as to the defendant's guilt. I disagree.
In judging the adequacy of the charge, the Court must view the instructions in their entirety, and consider their general effect. See United States v. Bey, 736 F.2d 891, 896 (3d Cir. 1984); Ayoub v. Spencer, 550 F.2d 164, 168 (3d Cir.), cert. denied, 432 U.S. 907, 53 L. Ed. 2d 1079, 97 S. Ct. 2952 (1977). I am not obligated to use defendant's requested charge, in toto, as long as my language is sufficient to present fairly and adequately the issue to the jury. See Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 922 (3d Cir. 1986).
During the charge conference, Fed. R. Crim. P. 30, the defendant asked the Court to supplement its proposed charge on character evidence with an instruction to the jury that character evidence alone may raise a reasonable doubt.
The Court declined the instruction, instead charging the jury with an instruction taken nearly verbatim, in relevant part, from the charge that the Third Circuit approved in United States v. Spangler, 838 F.2d 85, 86-87 (3d Cir.), cert. denied, 486 U.S. 1033, and cert. denied, 487 U.S. 1224, 101 L. Ed. 2d 918, 108 S. Ct. 2884 (1988).
The character evidence charge ultimately given to the jury was as follows:
Each defendant has offered evidence of his good general reputation for truth, veracity, honesty and integrity and being a law-abiding citizen. You should consider such character evidence along with all the other evidence you've heard in the case when making your determination as to whether the Government has proved beyond a reasonable doubt that the defendant whose case you are considering committed the particular crime or crimes that are alleged in the indictment.
Trial Tr. of Jan. 14, 1993, Doc. No. 98, at 67 (jury charge). Under Spangler, the Court need not instruct the jury that character evidence alone may create a reasonable doubt that the Government has proven all elements of the offense charged. Rather, the Court need only give the jury an instruction that calls attention to its duty to take character evidence into consideration along with all other admitted evidence. See Spangler, 838 F.2d at 87. The Court therefore did not abuse its discretion in instructing the jury as to the weight to be accorded character evidence.
Defendant's second criticism of the jury instructions is that the Court failed to charge the jury that an adverse inference could be drawn against the Government because two of its witnesses, Richard Melton and Kenneth Eline, had destroyed evidence before they began cooperating with the Government. Defendant claims that Federal Rule of Evidence 1004(1) mandates such a charge under the circumstances of the case, and he also cites to Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), in support of his argument.
The short answer is that neither Youngblood nor Federal Rule of Evidence 1004(1) requires the charge that the defendant sought. In Youngblood, the United States Supreme Court reversed the Arizona Court of Appeals and reinstated the trial court's conviction, holding that the defendant was required to show that the police acted in bad faith with respect to the destruction of evidence before the conviction would be reversed. 488 U.S. at 55, 57-58, 109 S. Ct. at 336-38. Federal Rule of Evidence 1004(1) permits the admission of collateral evidence of the contents of a writing if the original writing is lost or destroyed, unless the proponent of the evidence lost or destroyed the original in bad faith. Fed. R. Evid. 1004(1). Both Youngblood and Rule 1004(1) focus upon the bad faith loss or destruction of evidence by the proponent of the evidence, who in the present case is the Government.
The defendant, however, pointed to no evidence that the Government knew of, or participated in, either Melton's or Eline's destruction of records. In fact, at trial both Melton and Eline testified that they destroyed the records before they began cooperating with the Government. See Trial Tr. of Jan. 13, 1993, Doc. No. 119, at 4-5, 35-36 (testimony of Richard Melton); Trial Tr. of Jan. 12, 1993, Doc. No. 96, at 145-46 (testimony of Kenneth Eline). Therefore, there was neither loss or destruction of evidence by the Government, nor evidence of any bad faith on the part of the Government, which would entitle the defendant to an adverse inference instruction. See Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874, 878 (Fed. Cir. 1986). Accordingly, there was no error in the charge to the jury.
An appropriate Order will be entered.
AND NOW, this day 13th of April, 1993, upon consideration of defendant Ralph Fleming's motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c) and his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, and after hearing oral argument on the motions, and for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that the motions are both DENIED.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.