United States v. Tartaglione

• Decision Date: 10 January 2017
• Docket Number: CRIMINAL ACTION NO. 15–0491
• Citation: 228 F.Supp.3d 402
• Parties: UNITED STATES of America v. Renee TARTAGLIONE, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

228 F.Supp.3d 402

UNITED STATES of America

v.Renee TARTAGLIONE, Defendant.

CRIMINAL ACTION NO. 15–0491

United States District Court, E.D. Pennsylvania.

Signed January 10, 2017

Filed January 11, 2017

Bea Witzleben, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Geoffrey R. Johnson, Law Office of Geoffrey R. Johnson LLC, Jenkintown, PA, for Defendant.

OPINION

Slomsky, District Judge.

I. INTRODUCTION

On January 26, 2016, Defendant Renee Tartaglione was charged with various offenses stemming from her alleged involvement in a purported scheme to defraud the Government. (Doc. No. 3.) It is alleged that Defendant defrauded the Government by charging excessive rent to Juniata Community Mental Health Clinic ("JCMHC" or "the Clinic"). It is also alleged that Defendant caused JCMHC to issue unjustified payments to herself by securing a position as President of its Board of Directors.

At trial, the Government seeks to present audio recordings from two sources: (1) phone calls placed by Defendant's husband, Carlos Matos, while Matos was incarcerated in federal prison (referred to as the "prison recordings"), and (2) conversations between Matos and a cooperating witness, Sandy Acosta (referred to as the "witness recording"). (Doc. No. 57 at 6.) Defendant argues the recordings should be suppressed for several reasons. (Doc. No. 72.) She contends that the prison recordings are protected by spousal privileges and are irrelevant. (Id. at 4–6.) She also asserts that the witness recording cannot be admitted because it does not satisfy authentication and relevancy requirements, and is inadmissible hearsay. (Id. at 7–8.) For reasons that follow, this Court will grant the Government's Motion (Doc. No. 57) and will permit the use of the recordings at trial.

II. BACKGROUND

In 2007, Defendant Renee Tartaglione became President of the Board of Directors of Juniata Community Mental Health Clinic ("JCMHC" or "the Clinic"), a Pennsylvania nonprofit corporation whose mission was to provide outpatient mental health services to residents in Northeast Philadelphia. (Doc. No. 88 at 1.) As a mental health clinic rendering services in an underserved community, JCMHC received Medicaid funding from the United States Government and the Commonwealth of Pennsylvania.

The Superseding Indictment alleges that from 2007 to 2013, Defendant "defrauded and stole from" JCMHC while serving as President of its Board of Directors. (Doc. No. 61 at 2.) As President, Defendant obtained signatory authority for JCMHC and allegedly began issuing checks for services and goods that the Clinic never received. Defendant is charged with "directed hundreds of thousands of dollars in fraudulent payments from the Clinic to co-conspirators, who then delivered cash back to the defendant." (Doc. No. 88 at 1.)

The Superseding Indictment also alleges that Defendant caused JCMHC to make "illegitimate payments" to herself or to her holding company, Norris Hancock LLC, in the form of excessive rent. (Id. ) Defendant purchased two buildings in the name of the holding company Norris Hancock LLC. The Clinic operated out of these buildings. They are located at 2254–60 North 3rd Street and 2637–45 North 5th Street, respectively, in Philadelphia, Pennsylvania (referred to as the "3rd Street Building" and the "5th Street Building"). After the buildings were purchased, Defendant is alleged to have steadily increased the rent charged to JCMHC, essentially funneling excessive rent payments to her holding company. Through the schemes alleged, the Superseding Indictment charges that over a period of six years, Defendant stole more than $2,000,000 "from the non-profit's coffers." (Doc. No. 88 at 1.)

On October 3, 2016, the Government filed a Motion to Admit Tape Recordings. (Doc. No. 57.) As noted, the Government seeks to present at trial two types of recordings: (1) prison recordings of phone calls between Defendant and her husband, Carlos Matos, made while Matos was incarcerated, and (2) conversations between Matos and a cooperating witness, Sandy Acosta. (Id. at 6.) On October 31, 2016, Defendant filed a Response in Opposition to the Government's Motion. (Doc. No. 72.) On November 9, 2016, this Court held a hearing on all pre-trial motions. During the hearing, the Court afforded the parties an opportunity to file supplemental briefing. On December 5, 2016, the Government filed a Supplemental Memorandum in Support of its Motion to Admit Tape Recordings. (Doc. No. 82.) On January 4, 2017, this Court held a second hearing where pre-trial motions were argued. This Motion is now ripe for review.

III. STANDARD OF REVIEW

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Bradley v. Pittsburgh Bd. Of Educ. , 913 F.2d 1064, 1069 (3d Cir. 1990). The trial court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. Leonard v. Stemtech Health Sciences, Inc. , 981 F.Supp.2d 273, 276 (D. Del. 2013).

A trial court considering a motion in limine may reserve judgment until trial in order to place the motion in the appropriate factual context. See Diehl v. Blaw–Knox , No. 01-0770, 2002 WL 34371510, at *1 (M.D. Pa. July 15, 2002). Further, a trial court's ruling on a motion in limine is "subject to change when the case unfolds, particularly if actual testimony differs from what was contained in the movant's proffer." Luce v. United States , 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

IV. ANALYSIS

The Government moves to admit certain recorded conversations relevant to proving its case. (Doc. No. 57.) Specifically, the Government seeks to admit approximately 122 recordings of prison phone calls between Defendant and her husband, made while he was incarcerated.¹ (Id. at 6.) In addition, the Government moves to admit recorded conversations between Matos and Acosta, a cooperating witness. (Id. )

A. The Prison Recordings

Defendant objects to the use of the prison recordings on two grounds. (Doc. No. 72 at 4–8.) First, she asserts that the recordings are protected by spousal privileges. (Id. at 4–6.) Second, Defendant argues that the prison recordings are irrelevant and prejudicial.² (Id. at 6–8.)

1. Spousal Privileges Do Not Protect the Prison Recordings

Defendant first argues that the prison recordings must be suppressed because Defendant and her husband invoked spousal privileges. (Id. at 4–6.) Two spousal privileges arise out of the marital relationship: (1) the privilege that protects confidential marital communications, and (2) the privilege against adverse spousal testimony. 3 Weinstein's Federal Evidence § 505.03[1] (2d ed. 2016). Defendant argues that both preclude the admission of the prison recordings. (Doc. No. 72 at 4–6.)

a. The Confidential Marital Communications Privilege Does Not Protect the Prison Recordings

Defendant contends that the prison recordings should be suppressed by her invocation of the confidential marital communications privilege. (Id. ) This privilege prohibits one spouse from testifying about the content of conversations or communications with the other spouse made in confidence during their marriage. 3 Weinstein's Federal Evidence § 505.09 (2d ed. 2016). This privilege is held by both spouses, including the nontestifying spouse, and can be asserted even after the marriage ends. Id. A defendant who wishes to invoke the confidential marital communications privilege must show that: (1) a valid marriage existed at the time of the communication, (2) the privilege is being applied "only to utterances or expressions intended by one spouse to convey a message to the other," and (3) the communication was made in confidence. Wolfle v. United States , 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934). The party asserting the marital communications privilege bears the burden of establishing all three elements.

Here, the Government concedes that the first two elements of the confidential marital communications privilege are satisfied. The Government argues, however, that Defendant has failed to satisfy the final element—"that the communication must have been made in confidence." In this regard, the law is clear that, where one spouse is imprisoned, communications between the married couple on prison telephones are not made in confidence. See United States v. Madoch , 149 F.3d 596, 602 (7th Cir. 1998) ("Thus, because the marital communications privilege protects only communications made in confidence, under the usual circumstances where the spouse seeking to invoke the communications privilege knows that the other spouse is incarcerated, and bearing in mind the well-known need for correctional institutions to monitor inmate conversations, we agree with the district court that any privilege [the couple] might ordinarily have enjoyed did not apply."); see also Watson v. Albin , No. 06-7767, 2008 WL 2079967, at *2–4 (N.D. Cal. May 12, 2008) (rejecting the defendant's argument that the marital communications privilege applies to phone calls from prison phones because the couple had no other means of communicating). "The presence of a prison recording device [is] the functional equivalent of the presence of a third party." United States v. Hatcher , 323 F.3d 666, 674 (8th Cir. 2003). The Third Circuit has agreed with this principle. See United States v. Barlow , 307 Fed.Appx. 678, 681 (3d Cir. 2009) (finding that an incarcerated defendant's phone conversations with his wife were not privileged).

Thus, the phone calls between Defendant and her husband are not protected under the confidential marital communications privilege because they were not made in confidence. The presence of a device monitoring and recording all phone calls made in prison is the functional equivalent of a third party listening to the conversations. Hatcher , 323 F.3d at 674. Therefore, the phone calls are not protected from use by the marital...