BILLY J. WILLIAMS, OSB #901366

United States Attorney

District of Oregon

STUART A. WEXLER

Trial Attorney, Tax Division

Stuart.A.Wexler@usdoj.gov

RYAN R. RAYBOULD

Trial Attorney, Tax Division

Ryan.R.Raybould@usdoj.gov

1000 SW Third Ave, Suite 600

Portland, OR 97204-2902

Telephone: (503) 727-1000

Facsimile: (503) 727-1117

Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA, Case No.: 3:15-CR-00438-JO

Plaintiff,

v.

WINSTON SHROUT,

Defendant.

NOTICE OF INTENT TO 

INTRODUCE EXPERT WITNESS 

TESTIMONY PURSUANT TO 

FEDERAL RULE OF CRIMINAL 

PROCEDURE 16(a)(1)(G) AND 

SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO 

FEDERAL RULE OF EVIDENCE 1006

The United States of America, by and through Billy J. Williams, United States Attorney 

for the District of Oregon, and Stuart A. Wexler and Ryan R. Raybould, Trial Attorneys, Tax 

Division, hereby gives Notice of Its Intent to Introduce Expert Witness Testimony Pursuant to 

Federal Rule of Criminal Procedure (16)(a)(1)(G) and Summaries of Voluminous Evidence 

Pursuant to Federal Rule of Evidence 1006.

/ /

/ /

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NOTICE OF INTENT TO INTRODUCE

EXPERT WITNESS TESTIMONY 

PURSUANT TO FEDERAL RULE OF 

CRIMINAL PROCEDURE 16(a)(1)(G) 

AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

RULE OF EVIDENCE 1006 - 2

I. Expert Witness Testimony of Mr. William C. Kerr

The Federal Rules of Evidence authorize the use of an expert witness if it “will help the trier 

of fact to understand the evidence or to determine a fact in issue . . .” Fed. R. Evid. 702. During 

its case-in-chief, the government will offer testimony of William C. Kerr as an expert witness on 

the subject of fictitious financial instruments. Mr. Kerr is a former National Bank Examiner for 

the Office of the Comptroller of the Currency and is now retired and in private practice. Mr. 

Kerr will provide an analysis of the fictitious instruments charged in Counts 1 through 13 of the 

Superseding Indictment, as well as other uncharged but related documents by which the 

defendant and others attempted to obligate funds at the United States Department of the 

Treasury. Mr. Kerr will opine that the charged instruments were fictitious and purported to be 

issued under the authority of the United States or an organization, and other uncharged but 

related documents purport to obligate funds at the Treasury consistent with the fictitious 

instruments. Mr. Kerr’s qualifications are set forth in the attached curriculum vitae (Exhibit A). 

A report detailing Mr. Kerr’s opinions will be provided to the defendant in advance of trial and 

consistent with District of Oregon Standing Order 2015-5(a).

Courts encountering similar cases have upheld expert testimony opining that similar 

instruments are fictitious, explaining financial terminology or features used to lend the 

appearance of legitimacy to fictitious instruments, and explaining how the instruments purported 

to be issued under the authority of the United States. See United States v. Salman, 531 F.3d 1007, 

1013-15 (9th Cir. 2008) (discussing expert testimony on characteristics of certain financial 

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EXPERT WITNESS TESTIMONY 

PURSUANT TO FEDERAL RULE OF 

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AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

RULE OF EVIDENCE 1006 - 3

instruments); United States v. Turner, 985 F. Supp. 2d 1311, n.5 (M.D. Ala. 2013) (citing expert 

opinion in discussing whether the fictitious instruments purported to be issued under the 

authority of the United States). In particular, Mr. Kerr has testified in numerous cases and his 

testimony is mentioned in at least three published opinions. United States v. Pansier, 576 F.3d 

726, 737-38 (7th Cir. 2009) (upholding the admissibility of Mr. Kerr’s testimony in a similar 

case); United States v. Heath, 525 F.3d 451, 455 (6th Cir. 2008) (noting testimony by Mr. Kerr 

in a similar case); United States v. Anderson, 353 F.3d 490, 501 (6th Cir. 2003) (same).

II. Expert Witness Testimony of IRS Revenue Agent Kristin Emminger

As noted above, the Federal Rules of Evidence authorize the use of an expert witness if it 

“will help the trier of fact to understand the evidence or to determine a fact in issue . . . .” Fed. R. 

Evid. 702. The use of an expert in criminal tax prosecutions has been approved consistently. 

Expert testimony by an Internal Revenue Agent that expresses an opinion as to the proper tax 

consequences of a transaction is admissible evidence and their use as a summary expert witness 

is not uncommon, particularly in tax cases. See e.g., United States v. Marchini, 797 F.2d 759, 

765-66 (9th Cir. 1986); United States v. Clardy, 612 F.2d 1139, 1153 (9th Cir. 1980); see also

United States v. Bedford, 536 F.3d 1148, 1157-58 (10th Cir. 2008) (“a properly qualified IRS

agent may analyze a transaction and give expert testimony about its tax consequences.”); United 

States v. Tarwater, 308 F.3d 494, 513 (6th Cir. 2002).

During its case-in-chief, the Government will offer the testimony of IRS Revenue Agent 

Kristin Emminger as a summary witness trained in taxation and accounting. (Ms. Emminger’s 

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EXPERT WITNESS TESTIMONY 

PURSUANT TO FEDERAL RULE OF 

CRIMINAL PROCEDURE 16(a)(1)(G) 

AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

RULE OF EVIDENCE 1006 - 4

curriculum vitae is attached as Exhibit B). Agent Emminger will provide an analysis of 

documentary and testimonial evidence admitted at trial and will explain the resulting tax 

consequences. Specifically, Agent Emminger will summarize the evidence she used in 

calculating the magnitude of the defendant’s gross and taxable income and the tax loss associated 

with his failure to report that income and file an annual income tax return for the 2009 through 

2014 tax years. Agent Emminger will summarize third party information returns filed with the 

IRS (e.g., Forms 1099), witness testimony, and other financial documents (e.g., bank records). 

Her opinion as to the size of the tax loss will be predicated on the assumption that the jury finds 

that the defendant both earned taxable income and failed to file an annual income tax return in 

the relevant tax years, as alleged in the Superseding Indictment.

III. Summaries of Voluminous Evidence

Federal Rule of Evidence 1006 as applied in this circuit allows for the introduction of 

summary evidence to aid the jury in the examination of testimony or documents in evidence. 

United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988); see also Paddack v. Dave 

Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984); United States v. Johnson, 594 F.2d 1253, 

1255-57 (9th Cir. 1979). The proponents of a summary introduced pursuant to Rule 1006 must 

establish the admissibility of the underlying documents as a condition precedent to introduction 

of the summary. United States v. Anekwu. 695 F.3d 967, 981 (9th Cir. 2012) (citing Johnson, 594 

F.2d at 1257). The underlying documents do not have to be admitted, but they must be 

established as admissible. Johnson, 594 F.2d at 1257. Summaries must fairly represent the 

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AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

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underlying documents upon which they are based and be supported by that proof. United States 

v. Soulard, 730 F.2d 1292, 1300 (9th Cir. 1984).

Rule 1006 treats properly admitted summaries as evidence in their own right rather than just 

presentations of other evidence in a more coherent form, as long as the underlying evidence is 

admissible. Catabran, 836 F.2d at 458. The Ninth Circuit, however, has ruled, that “charts or 

summaries of testimony or documents already admitted into evidence are merely pedagogical 

devices, and are not evidence themselves.” See e.g., United States v. Wood, 943 F.2d 1048, 1053 

(9th Cir. 1991). Nevertheless, the Ninth Circuit has also not reversed where summary exhibits of 

material already in evidence were themselves received as evidence. Boulware, 470 F.3d at 936; 

see also Anekwu, 695 F.3d at 981 (citing Boulware and noting the Ninth Circuit has not 

articulated a bright-line rule against admission of summary charts as evidence). Indeed, the 

Ninth Circuit has repeatedly recognized a district court’s discretion under Fed. R. Evid. 611(a) to 

“admit summary exhibits for the purpose of assisting the jury in evaluating voluminous 

evidence.” Boulware, 470 F.3d at 936 (citations omitted). 

The Government anticipates that a large portion of Agent Emminger’s testimony will relate 

to the presentation of summary evidence. Copies of the summary schedules will be provided to 

the Court and to the defendant before the testimony. The defendant has been given access, in the 

various disclosures by the government during discovery, to the underlying evidence that Agent 

Emminger used in her analysis. See United States v. Wood, 943 F.2d 1048, n. 7 (9th Cir. 1991) 

(noting that Rule 1006 provides that the originals or duplicates of the original document 

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EXPERT WITNESS TESTIMONY 

PURSUANT TO FEDERAL RULE OF 

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AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

RULE OF EVIDENCE 1006 - 6

underlying the summaries must be made available for examination or copying by other parties at 

a reasonable time and place).

With respect to the Government’s summaries and reports, although preliminary summaries 

will be made available to the defense as they are prepared, the Government will amend any 

summary or report based on the evidence that is admitted at trial and final copies of the 

summaries will be available only after the summarized evidence has been admitted at trial.

Finally, pursuant to Rule 16(b)(1)(c) and the expert disclosure provided herein, the 

Government requests the disclosure of the defendant’s experts, if any, including a written 

summary of expert testimony.

DATED this 27th day of April, 2016.

Respectfully submitted,

BILLY J. WILLIAMS

United States Attorney

/s/ Stuart A. Wexler

STUART A. WEXLER

RYAN R. RAYBOULD

Trial Attorneys, Tax Division

(202) 305-3167

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NOTICE OF INTENT TO INTRODUCE

EXPERT WITNESS TESTIMONY 

PURSUANT TO FEDERAL RULE OF 

CRIMINAL PROCEDURE 16(a)(1)(G) 

AND SUMMARIES OF VOLUMINOUS 

EVIDENCE PURSUANT TO FEDERAL 

RULE OF EVIDENCE 1006 - 7

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 27, 2016, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 

attorney(s) of record for the defendant. Additionally, a copy of the foregoing was emailed to the 

defendant at millieannjones@gmail.com.

/s/ Stuart A. Wexler

STUART A. WEXLER 

Trial Attorney, Tax Division

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