from the United States District Court for the District of New
Mexico (D.C. Nos. 1:13-CR-00966-JCH-KK-1 and
H. Robert, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant - Appellant Matthew Channon.
B. Hotchkiss, Albuquerque, New Mexico, for Defendant -
Appellant Brandi Channon.
Paige Messec, Assistant United States Attorney (James D.
Tierney, Acting United States Attorney, with her on the
brief), Albuquerque, New Mexico, for Plaintiff -Appellee.
PHILLIPS, KELLY, and MURPHY, Circuit Judges.
Matthew and Brandi Channon, were convicted by a jury of wire
fraud and conspiracy to commit wire fraud relating to a
scheme to defraud retailer OfficeMax. 18 U.S.C. §§
1343, 1349. They now appeal, challenging the district
court's decision to (1) admit exhibits derived from
computer records and (2) enter a money judgment forfeiture.
Exercising jurisdiction under 28 U.S.C. § 1291, we
uphold the district court's admission of the exhibits but
remand so the district court may conduct further proceedings
on the money judgment of forfeiture.
used fictitious names and addresses to open rewards accounts
at OfficeMax - known as MaxPerks accounts. They used these
accounts to fraudulently obtain more than $100, 000 in
OfficeMax products. The scheme came to light when Steven
Gardner, an OfficeMax fraud investigator, noticed an
unusually high number of online-adjustments across several
different accounts. Mr. Gardner observed that most of these
accounts were registered to one of three email addresses,
although a fourth address was discovered later. Defendants used
the same email addresses and simply interspersed periods
between the characters of each address (e.g.,
email@example.com). OfficeMax recognized the
variations as unique email addresses, but gmail did not.
Defendants then used these fraudulent email addresses to
claim purchases by other customers, thus generating rewards
to which they were not entitled. They also used various
accounts to sell more than 27, 000 used ink cartridges,
receiving $3 in rewards from OfficeMax for each after paying
an average of $.32 per cartridge on eBay. In total, over
the 21 months of their scheme, Defendants redeemed $105, 191
in OfficeMax rewards.
to trial, Defendants objected to the use of summary exhibits
regarding their accounts. These exhibits summarized thousands
of transactions and were drawn from three Excel spreadsheets
containing OfficeMax records - which had been maintained by a
third party formerly known as SHC Direct (SHC). OfficeMax
would send SHC the data it collected each day, and if
OfficeMax later needed to view information, SHC would place
the data into a user-friendly Excel spreadsheet for OfficeMax
to use. SHC would not alter the raw data, but would
consolidate the necessary information from the larger
three Excel spreadsheets (also called workbooks) at issue in
this case consisted of (1) enrollment and transaction
activity for the majority of fraudulent accounts (File 1);
(2) information for the Group 1 accounts during the specific
time period of the scheme (File 2); and (3) an enhanced
spreadsheet, essentially a user-friendly version of File 1
and 2 combined (File 3). Each Excel workbook contained
several worksheets. These included a worksheet listing the 5,
463 suspect accounts, a worksheet listing the 63, 581
transactions associated with the suspect accounts, and a
worksheet listing the 2, 144 transactions in which a reward
card was used by one of the suspect accounts.
argued that the exhibits derived from Excel were inadmissible
because they were not originals, and Defendants never
received the full database maintained by SHC. They also
argued that the spreadsheets were hearsay because they were
prepared for purposes of litigation. The district court
rejected Defendants' arguments, finding that the
spreadsheets were originals under Federal Rule of Evidence
1001(d). Moreover, the district court found that File 1 and
File 2 were business records,  and also that the records were
likely machine generated. The files were therefore found to
Defendants were convicted, the government moved for entry of
an order of forfeiture in its favor. The district court
entered a money judgment of $105, 191, or the value of the