Democracy Partners, LLC v. Project Veritas Action Fund

DEMOCRACY PARTNERS, LLC, et al., Plaintiffs, v. PROJECT VERITAS ACTION FUND, et al., Defendants.

Civil Action No. 17-1047 (PLF)

United States District Court, District of Columbia

September 21, 2021

OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge

Defendants Project Veritas Action Fund, et al., have filed a pretrial Motion to Admit Creamer's Federal Felony Convictions for Bank Fraud and Tax Crimes (“Def Mot.”) [Dkt. No. 85]. Defendants ask the Court to order that plaintiff Robert Creamer's convictions in 2005 for bank fraud, in violation of 18 U.S.C. § 1344(1), and for failure to pay withholding taxes and subscribing false returns, in violation of 26 U.S.C. §§ 7202 and 7206, are admissible for two evidentiary purposes: “(1) as impeachment of Creamer pursuant to Rule 609(b)” of the Federal Rules of Evidence, and (2) “as direct evidence to explain Project Veritas's purpose of investigating a newsworthy story . . . and to rebut Plaintiffs' theory of causation.” Def. Mot. at 1-2.

Plaintiffs Democracy Partners, et al., oppose the motion, arguing that defendants cannot overcome the presumption against admitting remote prior convictions under Rule 609(b), and that the convictions are not admissible as direct evidence because they are not relevant to any issue in the case. Plaintiffs' Memorandum in Opposition to Project Veritas Parties' Motion in Limine to Admit Creamer's Federal Felony Convictions for Bank Fraud and Tax Crimes (“Pl Opp.”) [Dkt. No. 90] at 1-2.

The parties appeared via videoconference on July 22, 2021 for oral arguments on the motion, at which time the Court denied the motion with respect to the Rule 609(b) argument.^[1]As the Court explained from the bench evidence of Mr. Creamer's convictions for violating 18 U.S.C. § 1344(1) and 26 U.S.C. §§ 7202 and 7206 likely would not be admitted under Rule 609(a)(2) because neither of those statutory offenses requires proof of a dishonest act or false statement. See FED. R EVID. 609 advisory committee's notes to 1990 amendments and 2006 amendments; see also Cree v. Hatcher, 969 F.2d 34, 37-38 (3d Cir. 1992). This makes the convictions much less probative of credibility and truthfulness than convictions for crimes that inherently involve misrepresentations or false statements. See Cree v. Hatcher, 969 F.2d at 38. The Court therefore held that under section (b) of the Rule, which governs remote convictions -here, convictions that are more than 15 years old - and which embodies a presumption of inadmissibility, defendants had not met their burden of demonstrating that the probative value of the convictions “substantially outweighs [their] prejudicial effect.” FED. R. EVID. 609(b).

The Court took under advisement defendants' arguments that the convictions nevertheless should be admitted as direct evidence. For the reasons explained below, the Court now concludes that the convictions are not admissible as direct evidence and denies the motion in full.^[2]

I. LEGAL STANDARD

Courts evaluate the admissibility of evidence on a pretrial motion in limine according to the framework established by Rules 401 and 402 of the Federal Rules of Evidence. See Daniels v. District of Columbia, 15 F.Supp.3d 62, 66 (D.D.C. 2014). First, “the Court must assess whether the evidence is relevant.” Id. at 66. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” FED. R. EVID. 401. “Relevant evidence is admissible, ” unless an applicable authority provides otherwise, whereas “[i]rrelevant evidence is not admissible.” FED. R. EVID. 402. The proponent of admitting an item of evidence has the initial burden of establishing relevance. See Dowling v. United States, 493 U.S. 342, 351 n.3 (1990); United States v. Gonzalez, 507 F.Supp.3d 137, 147 (D.D.C. 2020).

Even if the proponent can demonstrate the relevance of an item of evidence, however, a court may conclude it is inadmissible if “the United States Constitution; a federal statute; [the Federal Rules of Evidence]; or other rules prescribed by the Supreme Court” provides for its exclusion. FED. R. EVID. 402. “If evidence is relevant, it is up to the non-offering party to invoke a specific rule, from the body of rules listed in Rule 402, that justifies exclusion of the evidence.” 1 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN & DANIEL J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 402.02[2] (12th ed. 2021).

II. DISCUSSION

Defendants seek to admit Mr. Creamer's 2005 convictions as direct evidence in support of two arguments. First, they contend that the convictions “explain Project Veritas's purpose of investigating a newsworthy story, ” which they will use as a defense against plaintiffs' wiretap claims. Def. Mot. at 1. Second, they say they will use the convictions “to rebut Plaintiffs' theory of causation” concerning plaintiff Strategic Consulting Group's loss of its contract with the American Federation of State, County and Municipal Employees (“AFSCME”). Id. at 2. In both instances, defendants do not carry their burden of showing that the convictions are relevant under Rule 401.

A. Evidence of Project Veritas's Purpose

Plaintiffs have brought claims pursuant to federal and District of Columbia wiretap statutes, arguing that defendants unlawfully intercepted communications when a Project Veritas employee, Allison Maass - who was operating under a false identity as “Angela Brandt” in order to obtain an internship with Democracy Partners - secretly recorded conversations during her internship. Complaint ¶¶ 78-93; see also Democracy Partners v. Project Veritas (“Democracy Partners III”), 453 F.Supp.3d 261, 267, 270 (D.D.C. 2020). Both wiretap statutes prohibit interception of oral communications unless one party to a communication consents to the interception. See 18 U.S.C. § 2511(2)(d); D.C. CODE § 23-542(b)(3). Both statutes also provide that even where one party consents, the interception is unlawful if made for the purpose of committing a criminal or tortious act. See 18 U.S.C. § 2511(2)(d); D.C. CODE § 23-542(b)(3).^[3] Judge Huvelle, who presided over this case before her retirement, allowed the wiretap claims to proceed with respect to any communications to which Ms. Maass was a party on the theory that defendants acted with the tortious purpose to commit a breach of fiduciary duty. Democracy Partners v. Project Veritas (“Democracy Partners II”), 285 F.Supp.3d 109, 123-24 (D.D.C. 2018).

Defendants now argue that they “must defend themselves” against the wiretap claims “by offering evidence of their prior knowledge of Creamer's convictions . . . which highlighted the newsworthiness of the story they investigated and why they did so.” Def. Mot. at 11. According to this argument, defendants' knowledge of Mr. Creamer's convictions shows that they “organically followed the threads of this news story to Creamer, ” Id. at 14, and helps rebut any argument that they acted with a tortious purpose, Id. at 13.

The Court finds these arguments unconvincing. Defendants do not present any evidence in their motion to show that they set out to collect information on Mr. Creamer because of his convictions. Prior to filing this present motion, defendants do not appear ever to have made such a claim. Their own statement of material facts submitted in connection with their motion for summary judgment mentions the convictions only briefly, introducing Mr. Creamer as “a felon who was convicted of bank fraud and failure to pay withholding taxes in 2005, ” and noting that “[t]hose convictions were discussed in ‘Rigging the Election, '” the video that Project Veritas produced based on Ms. Maass's recordings. See Def. Stmt. Material Facts ¶ 2.

In fact, defendants set forth in their statement of facts a contrary explanation for their investigation of Mr. Creamer, which focuses on voter fraud schemes and “bracketing” activity related to 2016 presidential campaigns. Defendants explained that they learned about Mr. Creamer when an individual named Scott Foval described Mr. Creamer to a Project Veritas agent as “the possible source of [a] voter fraud scenario.” Def. Stmt. Material Facts ¶ 58. Following this encounter, “Project Veritas journalists researched Robert Creamer” and “came across e-mails from the Clinton Campaign released by WikiLeaks, including one from Mr. Creamer “advising recipients of a ‘Trump Rapid Response/Bracketing Call.'” Id. ¶ 59. Defendants' investigation reportedly evolved through subsequent meetings between Mr. Creamer and another Project Veritas agent, including a meeting in which Mr. Creamer discussed an initiative involving “bracketing” appearances of then-candidates Donald Trump and Mike Pence. Id. ¶¶ 60-64. Ms. Maass subsequently interned with Democracy Partners under the alias “Angela Brandt” and recorded a number of conversations. Id. ¶¶ 66-70, 79. Defendants emphasized that the “Rigging the Election” video series included conversations about “a proposed voter fraud scenario, ” Id. ¶ 3, and “aggressive ‘bird-dogging' operations at Donald Trump events, ” Id. ¶ 4. This account of how the investigation evolved omits mention of Mr. Creamer's convictions altogether.

Judge Huvelle discussed defendants' decision to target Mr. Creamer in her opinion on summary judgment. See Democracy Partners III, 453 F.Supp.3d at 269. Her account, which was based on facts that were “either undisputed or established by uncontroverted evidence, ” id. at 267, also includes no suggestion that defendants were acting in response to Mr. Creamer's convictions. Judge Huvelle wrote:

Project Veritas employee Hartsock first heard Creamer's name in the spring of 2016, when he introduced himself (using the fake name of “Steve

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