Submitted: September 28, 2018
from United States District Court for the Eastern District of
Arkansas - Western Division
COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
Alisa Espejo appeals her conviction for various crimes
related to stealing funds from a medical practice while
working as its bookkeeper, arguing that the district court
erred by excluding potentially exculpatory evidence regarding
the medical practice's destruction of financial records.
We conclude that the district court did not abuse its discretion
in excluding the evidence.
was the administrator for Practice Management Services Inc.
("PMSI"), a medical practice. As the administrator,
Espejo was effectively responsible for managing the office.
When PMSI changed presidents from Dr. Bruce Sanderson to Dr.
Scott Brown in 2010, Brown discovered a debit card linked to
PMSI's account which, along with several other issues,
caused him to further investigate PMSI's finances. PMSI
placed Espejo on administrative leave, and she subsequently
resigned on October 1, 2010. The investigation ultimately
revealed that Espejo had transferred some of PMSI's funds
into her personal account.
PMSI's financial records that were part of the
investigation into Espejo's use of funds are now missing.
During the investigation into the funds in 2010, Espejo's
attorney asked PMSI's counsel to retain all financial
documents for the case. In February 2011, after You Shred-It
visited PMSI for its periodic shredding of records, a PMSI
employee discovered that all of the documents in storage were
gone, including the Espejo documents stored in a locked
cabinet. PMSI also failed to preserve Espejo's computer.
Fortunately, off-site bank and credit card records reproduced
the relevant transactions, and every testifying doctor
besides Sanderson reproduced their settlement statements from
PMSI for the relevant years. Sanderson reproduced only his
2010 settlement statements.
2014, a grand jury indicted Espejo on fifteen counts of wire
fraud, seven counts of money laundering, and four counts of
filing false tax returns. Espejo moved to dismiss the
indictment for, among other reasons, intentional destruction
of evidence. The district court denied the motion to dismiss
the indictment but, on the Government's motion, dismissed
one of the counts of money laundering.
pretrial motions, the Government moved to exclude evidence
and argument related to PMSI's destruction of financial
documents. At trial, the district court excluded evidence
related to the destruction of the records under Fed.R.Evid.
401, 402, and 403. The district court explained that it did
not understand why the missing documents would be needed for
a defense given the availability of credit card statements to
show what Espejo purchased with the funds at issue. It also
explained that there was no evidence the Government destroyed
the documents. It further prohibited defense counsel from
asking Sanderson about intentional destruction of his
settlement statements, pending review of further evidence in
wanted the missing records to support her defense that
Sanderson routed personal funds through PMSI's account in
order to hide money from his wife. She conceded that she
transferred $611, 099.04 from PMSI and a related entity to
her personal bank account and that she maintained separate
Quickbooks files to hide the transactions. She testified that
Sanderson authorized these practices, asking her to purchase
items for him and reimburse herself from PMSI's account,
and occasionally allowing her to purchase gifts for her
children with funds reimbursed from PMSI's account. She
also conceded that she made a few personal purchases using
the PMSI debit card, but she stated that those purchases
involved mistaken use of the wrong card and that she
reimbursed any such mistakes.
admitted he had routed personal transactions through
PMSI's account, using checks directly from the account
for purchases. He denied ever authorizing Espejo to use her
personal account for purchases on his behalf.
the evidence indicated that Espejo transferred more funds to
her account than Sanderson deposited in PMSI's account.
Sanderson's 2010 statements showed that he deposited $4,
612.07 beyond what he owed PMSI between January 1 and
September 9, 2010. Espejo took $210, 425.41 in funds from
PMSI's account during the same time period. Her defense
was that Sanderson had deposited extra funds in the account
that had continually built up over time.
the missing records, the evidence at trial indicated that
PMSI's account contained some extra funds with an unknown
source. At the end of 2009, the account balance was $99,
259.27. There were six doctors in the practice at that time,
each of whom contributed about $5, 000-6, 000 when they
joined. Sanderson also testified that a previous member of
the practice, Dr. Columbus Brown, was in arrears by "a
big amount" to PMSI, indicating that the doctors'
collective contributions alone could not account for the
surplus in the account. The Government introduced evidence of
other sources of income: a $14, 000 check from Memphis
Pathology Lab that was not credited to any doctor, and a $41,
062.48 refund from McKesson Specialty Care ...