United States v. DiMora
| Decision Date | 04 January 2012 |
| Docket Number | Case No. 1:10CR387. |
| Citation | 843 F.Supp.2d 799,87 Fed. R. Evid. Serv. 327 |
| Parties | UNITED STATES of America, Plaintiff, v. James C. DIMORA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
OPINION TEXT STARTS HERE
Ann C. Rowland, Antoinette T. Bacon, Heather Tonsing Volosin, James L. Morford, Robert J. Patton, Office of the U.S. Attorney, Cleveland, OH, Nancy L. Kelley, Office of the U.S. Attorney, Akron, OH, for Plaintiff.
Andrea L. Whitaker, William T. Whitaker, Jr., Law Office of William T. Whitaker, Akron, OH, J. Michael Murray, Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, William T. McGinty, McGinty, Hilow & Spellacy, Robert J. Rotatori, John T. Bender, Richard L. Stoper, Rotatori Bender, Paul M. Shipp, Weston Hurd, David G. Oakley, Leif B. Christman, William T. Doyle, Cleveland, OH, John F. Corrigan, Rocky River, OH, Michael P. Maloney, Westlake, OH, for Defendants.
Before the Court are a series of motions in limine filed by the government and the defendants, James C. Dimora and Michael D. Gabor. (Doc. Nos. 532–537 and 561.) The Court conducted a motion hearing on December 16, 2011.
I. Background
The facts of this particular action have been set forth previously in numerous opinions and orders by this Court. Familiarity with those facts is therefore presumed, and only a brief review of the most salient facts is necessary to frame these in limine motions. On September 14, 2010, the grand jury returned a multi-count indictment against Dimora, Gabor, and five other individuals. The indictment was one in a string of indictments growing out of an expansive federal investigation, conducted over a number of years, into allegations of public corruption and conspiracy in Cuyahoga County, Ohio. The Third Superseding Indictment 1 charges both defendants with, among other things, RICO conspiracy, conspiracy to commit mail fraud and honest services mail fraud, Hobbs Act conspiracy and Hobbs Act substantive violations, conspiracy to commit bribery in programs receiving federal funds, and conspiracy to obstruct justice. Dimora is also charged with conspiracy to commit wire fraud and honest services wire fraud; destruction, alteration or falsification of records in a federal investigation; mail fraud; and false statements on tax returns.
At all times relevant to the Indictment, Dimora was one of three County Commissioners who had day-to-day responsibilities for the administration of the Cuyahoga County government. During this same period, Gabor was employed by the County Auditor's Office. It is alleged that Dimora and Gabor conspired with other public officials and private citizens to engage in a pattern of racketeering and fraudulent activities for the purpose of receiving things of value in exchange for the performance of official acts.
II. Legal StandardsA. Motion in Limine Standard
Although not explicitly authorized by the Federal Rules of Evidence or the Federal Rules of Criminal Procedure, the practice of ruling on motions in limine “has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Motions in limine allow the court to rule on evidentiary issues prior to trial in order to avoid delay and to allow the parties to focus remaining preparation time on issues that will in fact be considered by the jury. See United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999); Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir.1997).
Courts should exclude evidence on a motion in limine only when it is clearly inadmissible. Indiana Ins. Co. v. General Elec. Co., 326 F.Supp.2d 844, 846 (N.D.Ohio 2004). If the court is unable to determine whether certain evidence is clearly inadmissible, it should defer ruling until trial so that questions of foundation, relevancy, and potential prejudice can be evaluated in proper context. Id. Ultimately, the determination whether to grant or deny a motion in limine is within the sound discretion of the trial court. Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 858 (W.D.Mich.2008) (citing United States v. Certain Land Situated in the City of Detroit, 547 F.Supp. 680, 681 (E.D.Mich.1982)). In limine rulings are preliminary, and the district court may change its ruling at trial for any reason it deems appropriate. United States v. Yannott, 42 F.3d 999, 1007 (6th Cir.1994).
All relevant evidence is admissible and evidence that is not relevant is not admissible. Fed.R.Evid. 402.2 “Evidence is relevant if (a) it has a 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. The relevancy standard is liberal. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Relevant evidence, however, may be excluded if its “probative value is substantially outweighed by the danger of one of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.
III. Government's Motion in Limine (Doc. No. 532)
By its motion, the government seeks permission to: (1) have two case agents and an expert witness present during trial; (2) divide FBI Special Agent R. Michael Massie's testimony into segments; and (3) introduce evidence of uncharged criminal activity. The government also seeks to preclude the defendants from: (1) presenting irrelevant defenses; (2) presenting evidenceof lawfulness; and (3) arguing or discussing the consequences of a guilty verdict.
In anticipation of the Court's witness sequestration order pursuant to Fed.R.Evid. 615, the government requests permission for two case agents and an expert witness to remain in the courtroom during trial. The government anticipates designating FBI Special Agent Massie as its party representative pursuant to Rule 615(b).3 Further, pursuant to Rule 615(c), 4 the government requests that FBI Special Agent Christine Oliver be permitted to remain at counsel table, as her familiarity with the case and exhibits is essential to aid the government's presentation of evidence at trial. Finally, the government asserts that, pursuant to Rule 615(c), its expert tax witness, IRS Special Agent Kelly Fatula, should be permitted to remain in the courtroom to hear the evidence presented at trial so that she may testify as to whether the bribes and kickbacks defendant Dimora allegedly received should have been classified as taxable income. Id.
As to SA Massie, the defendants offer no opposition to his presence as the government's designated representative. Indeed, Rule 615(b) expressly permits the government, who is “not a natural person,” to designate “an officer or employee ... as its representative,” and further provides that person may not be excluded from the courtroom during trial.
Defendant Dimora objects, however, to SA Oliver and SA Fatula's presence in the courtroom during trial. He asserts that while SA Oliver's presence is convenient, it is not “essential to the presentation” of the government's case. (Doc. 547 at 2.) Further, he argues that SA Massie is equally familiar with the evidence and exhibits in this case and is equally competent to assist the government therewith. As to SA Fatula, Dimora argues that Rule 615(c) does not support the government's purported justification for the request. He asserts that, because the government has already disclosed to Fatula the information she needs to formulate her expert opinion, it is not necessary for her to hear the testimony at trial.
Rule 615 of the Federal Rules of Evidence provides, in relevant part:
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding: ... (b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party's claim or defense....
The exclusion of witnesses is a matter of right subject to narrowly defined exceptions. United States v. Phibbs, 999 F.2d 1053, 1073 (6th Cir.1993). The “essential” person exception “contemplates such persons as an agent who handled the transaction being litigated or an expert needed to advise counsel in the management of the litigation.” Id. at 1073 (citing Fed.R.Evid. 615, Advisory Committee Notes). The decision to permit a witness to remain in the courtroom is within the sound discretion of the trial court. United States v. Mohney, 949 F.2d 1397, 1404 (6th Cir.1991).
The government requests that the Court permit SA Oliver to assist it at counsel table during trial. Counsel for the government anticipates several boxes of documentary exhibits, in addition to demonstrative exhibits and electronic evidence. The government maintains that an additional agent at counsel table is essential in order for it to organize, maintain, and track the evidence and to present it a coherent and efficient manner. According to the government, SA Oliver is most suited to provide this assistance, as: (1) she and SA Massie were the two primary agents assigned to this complex investigation; (2) she prepared and organized the exhibits; and (3) she is intimately familiar with the evidence. Further, the government contended at oral argument that, due to the large volume of exhibits in this case, it is necessary to have one agent responsible for the organization and presentation of its paper exhibits and another dedicated to the electronic presentation of exhibits. Additionally, the government argues that it needs a second agent at counsel...
To continue reading
Request your trial
- In re BP P.L.C. Sec. Litig.
- Little v. Warren
- Dimora v. United States
- Dimora v. United States
-
§ 19.03 EXCEPTION: DESIGNATED OFFICERS AND EMPLOYEES
...the Appellants' objection to the presence of both agents during the trial of this case.") (citation omitted); United States v. Dimora, 843 F. Supp. 2d 799, 819 (N.D. Ohio 2012) ("Given the scope of this case and the sheer enormity of the evidence to be presented at trial, the Court conclude......
-
§ 19.03 Exception: Designated Officers and Employees
...the Appellants' objection to the presence of both agents during the trial of this case.") (citation omitted); United States v. Dimora, 843 F. Supp. 2d 799, 819 (N.D. Ohio 2012) ("Given the scope of this case and the sheer enormity of the evidence to be presented at trial, the Court conclude......